After an interval of seven years, the Duke, on the 15th February, 1699, applied a third time, by petition, to the House of Lords; setting forth that he had "now certain proof of his wife's living in adultery with Sir John Germaine," and therefore praying leave to present a bill to dissolve his marriage, and to enable him to marry again. Leave was accordingly granted, and the bill was read a first time. The resolutions prohibiting the use of proxies were repeated; and it was ordered that, with the exception of certain witnesses who were proved to have been removed or concealed by the Duchess and her paramour during the former investigation, the evidence should be confined "to matter of fact occurring since the rejecting of the first bill." The proofs of adultery, on this occasion, were complete and unanswerable; establishing a criminal connexion, continued from year to year down to 1699, between the Duchess and Sir John Germaine. And although certain members of the House declared their opinion against passing the bill without a previous sentence of divorce in the Ecclesiastical Courtalthough articles of separation had been executed between the parties in 1694, which, as it was contended, operated as a relinquishment of conjugal rights by the Duke-and, finally, although his conduct as a husband was such as, in modern times, would have at once barred his remedy either in the Court Spiritual or in Parliament-still the case, in all its circumstances, undoubtedly was flagrant in the extreme; and it would, I apprehend, be difficult to show that the Legislature, in at last granting the relief so long sought in vain, inflicted any injury on the public morals. The bill being read a second time, the Duchess presented a petition to the

were persuaded that, in the case of adultery, when it was fully proved, a second marriage might be allowed. In the Duke of Norfolk's case, the Bishops were desired to deliver their opinions with their reasons: all those who had been made during the present reign were of opinion that a second marriage in that case was lawful, and conformable both to the words of the gospel, and the doctrines of the primitive church; and that the contrary opinion was started in the later and dark ages. But all the Bishops that had been made by the two former Kings were of

another opinion, though some of them could not well tell why they were so."

To the above the following note is added by Lord Dartmouth: "The Earl of Peterborough (father of the Duchess) and all her relations opposed the bill with great zeal and warmth; and though nobody pretended to justify her conduct, there were many reasons for alleviating the rigour of the punishment, the Duke being notoriously a very vicious man, and besides his own ill example, had been the original introducer of all the bad company she kept to her acquaintance."

House to be heard by counsel touching "her jointure and marriage agreement." In consequence of this application, a clause (f) was inserted by the Lords in the bill, making provision for her Grace by ordering repayment of her portion. The bill, thus amended, was sent to the Commons, where the discussion of its merits was renewed; and arguments by counsel were heard at great length.

It underwent, however, no alteration in the lower House; and being, in due time, returned to the Lords, received ultimately the royal assent; and the Duchess, released from her fetters, was very soon afterwards united in marriage with Sir John Germaine.

EARL OF MACCLESFIELD'S CASE.-SESSION 1697-8. Neither Judgment at Law nor Sentence Ecclesiastical.-Bill passed.-Protest.Countess's fortune to be repaid her.-Earl indemnified against her debts.

Or this celebrated case there is but a meagre account in the Journals. The bill was entituled "An Act for dissolving the Marriage between Charles, Earl of Macclesfield, and Anne his wife, and to illegitimate the Children of the said Anne." The following is extracted from the Parl. Hist. vol. v. p. 1173:

"It appears that during the residence of the Earl abroad, his lady retired from her father's, where she had been left, to her own mother's, Lady Mason, which so far irritated her Lord, that when he returned, he did not think proper to invite her back. She thinking herself thereby at liberty, admitted the addresses of another Earl-(Rivers)—the consequence of which were two children, a daughter and son. Of this her husband being apprised, his Lordship applied himself to his Peers for a remedy, which nothing but a Parliament could give; all the relief which he could expect from a sentence in Doctors' Commons, being no more than a state of separation, in which he and his lady had long lived. He alleged that it is evident the Divine law admits of second marriages in such cases, and that there had been Acts of Parliament for them as well as for bastardising spurious issue. That those canons which have prohibited second marriages in like cases were so manifestly an effect of the Popish doctrine of marriage being a sacrament, and of the avarice of the court of Rome to get money for dispensing with them, that in the reformation of ecclesiastical laws, prepared and intended in the time of Edward VI., in pursuance of an act of Parliament of Henry VIII., there was express liberty given by those canons to marry again, which by virtue of that act of Parliament, would have become a general law, or at least would have occasioned one. That it would be a most unreasonable hardship upon him that the standing law which is designed to do every man right, should,

by the rigour of the letter, be to him the cause of the greatest wrong; and that for his wife's fault he should be deprived of the common privilege of every freeman in the world, to have an heir of his own body to inherit what he possessed, either of honour or of estate, or that his only brother should lose his claim to both, and have his birthright sacrificed to the Lady Macclesfield's irregular life. While this affair was depending in the Spiritual Court, (5) the Lady Macclesfield insisted upon her innocence, and her agents industriously spread a report that the Earl, her husband, had been surprised into a private meeting with her, by a woman of intrigue. But this story being confuted by the Earl's positive evidence to the contrary, she gave up that point; and only endeavoured to make her husband the author of her miscarriages. She alleged that the late Earl of Macclesfield, her father, had turned her out of doors. That the present Earl, notwithstanding the obligation she had laid upon him by petitioning King James for his life, had maliciously secluded her from bed and board; and therefore if the Lords thought fit to pass this bill of divorce, she demanded her fortune to be refunded; both because a divorce dissolves the whole frame of the marriage contract, and because it were the highest injustice that a man who was guilty of making his wife commit adultery, should be rewarded out of the same wife's fortune. This affair occasioned great debates in the upper House. Some Peers representing the danger of granting divorces; and others (amongst whom Dr. Burnet, Bishop of Salisbury, spoke the longest) showing the necessity and lawfulness of such extraordinary proceedings in some particular cases."

On the 3rd March, 1697, the bill passed the upper House; the following protest, however, appearing in the Journals :

"Dissentient, because we conceive that this is the first bill of that nature that hath passed where there was not a sentence of divorce first obtained in the Spiritual Court; which we look upon as an ill precedent, and may be of ill consequence in the future. (Signed) Halifax, Rochester." But the sanction of Lord Somers, who was present, and who probably took the lead in the discussion, affords a guarantee, that the measure was deliberately considered, and that the want of a spiritual sentence ought in his opinion to form no

(5) It appears that the Earl of Macclesfield did apply to the Ecclesiastical Court for a divorce a mensa et thoro. But the Countess having thrown all

manner of obstructions in the way of a decision, the bill was brought into Parliament before the suit was determined. 13 State P. 1350.

obstacle to relief, where the case, on its own merits, was redundantly established.

In the House of Commons the parties were heard by counsel; but the bill passed there without amendment, and received ultimately the Royal assent.

It appears that the Countess's fortune was ordered to be repaid her (h). I have not been able to find a copy of the act, but the Lords' Journals state that the marriage settlements were ordered to be produced, and a clause was prepared by the Judges to indemnify the Earl against her debts.

MR. COPLEY'S CASE.-SESSION 1749.

Case adjourned for two months, in consequence of an Appeal to the Delegates.— Circumstances under which Service of Copy of Bill and of Order for Second Reading on Wife's Trustee and Proctor deemed sufficient.-Witness examined in the Ecclesiastical Court having died, her Deposition read as Evidence.

March 20.-THE House having inquired what proceedings had been had in the Ecclesiastical Court, their Lordships were informed upon oath, that a sentence of divorce had been pronounced by the

(b) This is asserted by Dr. Johnson, in his Life of Savage; and the statement appears to be confirmed by the Journals. His narrative, however, in some other respects, is clearly inaccurate, although expressed with all his characteristic force and felicity: "In the year 1697, Anne Countess of Macclesfield, having lived for some time on uneasy terms with her husband, thought a public confession of adultery the most obvious and expeditious method of obtaining her liberty; and therefore declared that the child with which she was then great was begotten by the Earl Rivers. This, as may be imagined, made her husband no less desirous of a separation than herself, and he prosecuted his design in the most effectual manner; for he applied not to the Ecclesiastical Courts for a divorce, but to the Parliament for an

Act, by which his marriage might be dissolved, the nuptial contract annulled, and the children of his wife illegitimated. This Act, after the usual deliberation, he obtained; though without the approbation of some, who considered marriage as an affair only cognizable by the Ecclesiastical Judges; and on March 3rd was separated from his wife, whose fortune, which was very great, was repaid her; and who having, as well as her husband, the liberty of making another choice, was, in a short time, married to Colonel Brett." Now the Countess was so far from desiring a divorce, that she vigorously opposed it; and the Earl did not go per saltum to Parliament, but commenced and carried on proceedings, in the first place, in Doctors' Commons, although these (as already stated) were not finally persisted in.