WE have with a most strict regard obserued all requi­sits, even to the least Circumstance of our duty, in prosecuting the Contumacy of the Defendent in this Cause, so fair, as right practice, and the known rules of pro­ceedings in this Court, hath instructed us, insomuch that you have upon our humble motion pronounced him Contumacious in not appearing upon due Preconization ad informandum, and in panam Contumaciae, you have decreed a procedure to the act of information Contumacia ejus non obstante, for my part, I wish he were present in juditio, that I might represent unto his Pe­netential thoughts an Histcricall view of his great iniquities and thence less injuries my Client hath received from him thereby to bring him to a true sence of his sins and his duty in Confess­ing his delicts, which indeed are such that if he were present, none but a Tertullus who Cares not how bad the Cause be so the fee be good, would presume to speake in his behalf, for were he strengthned with the patronage of the best Advocates in the World, and assisted with all other advantages which usually make Victory hopefull, nothing could be said in his excuse, yet thus much he may be assured of, that though he be Contuma­ciously absent, he shall not be overcome by a Sopracargo or [Page 4]any advantage of prosecution, hitherto, or hereafter to be taken against him, unless it be, by the burthen of his own Crimes, nor shall I take the freedome of saying any more in the stateing of this Cause then I would freely utter were he present; for my representation of things of this Nature shall never be dis­proportioned like the Evening Shadows, longer then the just dimensions of Truth, which I have alwaies esteemed as the Ru­bricks of the Missall, whereunto as the Ritualists obserue, it is more dangerous to add then to omit any part thereof, nor shall I describe it in the imagery of an Oratour, for it is our advantage to set it before you and this Congregation in the plainness of a clear and naked representation. I shall therefore deceive the ex­pectation of those who think I am come to this place to suborn Common attention with bravery of expressions, or to tickle the Eares of the learned, with refined subtilties of Law and Scholastick discourses my chiefest aim being rather to satisfie the bench in a sh [...]rt Discourse, then the Curiosity of the standers-by in an unnecessary profusion of words, for I am of the Arabian Authors Mindes who: saith there is no benefit [...] &c. Viz: that cause may be suspected to want the patronage of Arguments which is pleaded for, only with multiplicity of words, St: Chrysostom makes his entrance into one of his Sermon's with this preparation to attention, Attendite diligenter non enim rem Vulgarem vobis pollicemur, I shall upon the like ingagement de­sire the heedful attention of every one who is within the Com­pass of hearing me this day, for I promise you [...] not any thing that falls within the ordinary Occurrences of af­faires, but things so horrid and dreadful to human eares, that I have not any exaggeration of words great enough to express their Exorbitancie, things seldom read of in Pagan antiquity, but so extraordinary and beyond nature prodigious, that they're sufficient to astonish Heathens, and make the most Barbarous Nations even the wild Irish and the Clangregores in Scotland to [Page 5]blush; things so strange that the bashful modesty of an Advo­cate style cannot reach unto, nay so far above the expressions of the boldest Poets that there is not sufficient efficacy in all the words that ever the world made use off, from the first instant of its existancy to this moment of its decrepit Age, to express the nature of them, and should we outlive the period and obsequies of time I am sure we should never hear of greater Barbarismes, amongst which there is one of greatest remarque, a crime a­bove the rest so heinously flagitious, that the very name there­of, carries to every mans understanding such a notion of hor­rour, as it requires as much faith in the Hearers to believe it, as it did wickedness in the offenders who perpetrated it, the relation wherof may perhaps wring Teares out of those pale fac't and obdurat walls, put the Bench into a Swett, make the Barr to groan, binde up the senses of the standers-by in the Stu­pidity of a dull amazement, and transport my self to the utmost bounds of a sober passion whilst I in the recitall finde an unac­customd horror, entring into the Marrow of my shivering Bones, & unusual resentments invadeing every part of my soule. I shall say no more in General to excite your attention, but betake my selfe to the narratio facti, wherein I am to set forth not onely the fraud and violence which the Defendent used against the Plaintiff in a most Prodigious rape, but also the impudence of his Calumny in the jactitation of Marriage with hir which I shal make good by proofs amounting to a pitch of evidence abovel all possibility of Contradiction, and then we shall desire the ad­vantage which the Law affords in that case, as well by the Courts declaring that there was no Marriage lawfully Contra­cted between them, as by inflicting on him the just severity of the Law, for his Correction & reformation, and our due repara­tion. Before I enter into a recitall of the Cause I hope I shall not be reckoned amongst the Perditempi if by way of introduction I open a prospect into the Contingentia facti, briefly glancing [Page 6]on the persons for the Disparity of their Condition will be of force not onely to shew the improbability of her consent to Marry with him, but also if the saying of Ariminensis be true ( viz: that) ex vilitate personae offendentis crescit gravitas injuriae will much aggravat the rape and the Contumely of his most impudent jactitation, of Marriage with her, which like word gives a deeper Colour to his offence and makes it above all respects inexcusable: for of all the reproaches that Satan the old Calumniator Could rake out of the foulest Channels of Hell, none could be greater or sharper in her esteem, and therefore the Lacedemonian, who in Commending his Sword said it was [...] sharper then Calumny, if he had ever ex­perimented so sharp a Calumny as this would not have made that Comparison. Whilst I speak of the Defendent, I shall endeavour to Imitate Johannes Mylaeus a famous Iurisconsult of whom it was said, ita veritatem amplectebatur, ut dicendi acer­bitatem vitaret; As for his fortune, I shall say nothing, for I am none of those who measure the Sutableness of Matches by the rate of the subsidie books, nor do I think that my Client in the choyse of a Husband will tye her self so strictly to the rule of Logick as to hold that â quantitate res dicuntur pares aut impares, we shall therfore allow his Patrimony better then his Educati­on or birth, which as reports informe us is very Inconsiderable and far beneath her Extraction, he being a man lately drawn out of the Lees of Poverty, and the obscurity of a mean Condi­tion, but of his Original I shall say nothing nor shall I urge any more in the representation of him at present then what appears out of the evidences taken in this Cause, which denote him to be in his Nature not onely as an impostume ready to burst with a tumid Plethorie of self Conceipt, but as a Monster possest with a Legion of excessive hopes for spes alit agricolas, and a Gluti­nous desire to raise himself to an Estate, in prosecution whereof, his ambition Ridd on without Reyns of restreynt, until at last [Page 7] per fas aut ne fas, he became Master of some Acres of Land, but then the Transportations of so unexpected a prosperity, carried him so far above himself, that he scorn'd to subject his Appetite to the Y [...]ak of reason, or to confine himselfe within the bounds of Moderation, for rustica gens nescit habere modum, he then knows not how to measure the height of his Fortune; but by a Precipice, and so becomes the Ingeneer of his own Mis­fortunes, as being neither wise in the Choyce of his purposes, not prudent in the use of means, nor happy in the imployment of Instruments he setts on work for the Acchievment of his de­signes. In his Conversation he hath shewed himself so frentless a a plece of Impudence that shamerfaceness never cast her Vaile on his Fore-head; And so little remorse of Conscience pos­sesseth his Soule that no sinn seems to trouble him which he can Vaile or Maske from human perception. And such hath been the lowness of his minde that the hope of Interest did prevaile more with him then the horrour of perpetual Infamy; For he cared not how great mischiefs he attempted, nor with how much disgrace, So that his Indirect ends might be attained. Furthermore in his Conversation, he was of so morose an hu­mour, as that he deemed all Civil Complyance with other mens humours, a crooked deformity from his own, He was often subject to wrathful discomposures of minde and frequent­ly hurried by the giddy and rapid Violence of his passions to such a pass; as that he could neither speake sence nor harken unto reason; Whilst he Evapourated the heat of his inflamed Bowels, he was of so obdurat an heart that you might as soon Pump water out of the hardest Rocks or dissolue them into streaming Fountains, as draw a Teare of Compassion or sor­row from him, for he esteemed the bitterest Tears of oppressed Women but as the fluid dropps of a sickly rheum; Again such was his disposition that he was apt out of stomachfull hatred and revenge to Vomit out spightfull untruths, and to brand [Page 8]his Neighbours with Calumnious Impressions; In his amours he was sodestitute of reason and so much drowned in Sensuality that force and rigour were the onely Arguments he used to in­vite Consent, seeking ratherby the insolency of a rude Carri­age and peremptory menaces to Vex Women to a Complyance then by soft perswasions or the Courtship of faire Language civilly to allure them, and when Lust Commanded the exer­cise of his Libidinous Limbs, he had no regard to Maidencha­stity. I know that Praescientia non ligat res in eventum; Yet if it were Convenient by a Judicial prognostication to foretell the tendency and success of affaires, I might perhaps tell him that his Horoscope hath cast so Ghastly a Glance upon his Nati­vity as doth portend a direfull event, & would if publisht to his notice like the Fumes of Mercury and Orpiment loosen his joynts to tremblings and distortions, and make him in your opi­nion like the Materia prima which as Aquinas I. Par. q. 5. Art. 3. ob. 3. Saith non habet rationem appetibilis sed appetentis tantum, what I have said Concerning the Defendent is rather cross to my Natural Inclination then a digression: for to speake to any mans prejudice agrees noe otherwise with me then as Motion to light or heavie Bodies Quibus non Competit moveri nisi secundum quod sunt extra dispositionem naturae. Aquin: p: 1: q: 18. but the pro­secution of my subject hath directly led me thereunto, and I finding so great a Concours of people tooke the advantage of so many Witnesses to shew you how little probability there is, that any Woman should Consent to marry with a man so dan­gerously qualified, especially my Clyent, whom I am now to represent unto you, as she is, and therefore, so different from his Nature and qualifications, that you will easily con­ceive, that it were as likely to bring two paralel Lines together as to conjoyne these two in Marriage, for every one knows that a Judicious woman may be resembled to our sence which as St. Thomas obserues delectatur rebus debite Proportionatis and [Page 9]that it is in Marriage as it is in Musick Quo voces sunt propinqui­ores sibi invicem, eó meliorem Conflant symphoniam for which reason it is said that the Jonick and Hyper Jonick moods agree better in Musick, then the Jonick and Dorick, which agrees with justitia Condecentiae mentioned in the School-men which tunes up the hearts of Married people to a Melodious unisone; I am now to draw the other line of the paralel in a true repre­sentation of my Client, whereby it will appear the dispropor­tion between them is too great to be reduced to an adjustment and that she could not without renounceing the Honour of her Birth, and putrisiing the memory of her Auncestors, level her Affections to the meanness of his dispised bed, which cannot be made Jsoperimetricall to hir quality, and that they were no more likely to agree in a maritall State, then Contraries can be Lodged together in their most intent degrees; nor more likely to be Conjoyn'd in affections then the literae Illegabiles in the Persian writings. To speake of her Birth and with my words to Magnifie her in remembrance of the many Vertues and honours which have shined with great Brightness as well in her Mothers as in her Fathers family would be to no more pur­pose then to shew light to the Sunn, or to breath on a perfect Diamond, and to speake of her fortune would be to publish that, which is already well known; Therefore I shall trans-fer my self from that Consideration of dissimilitude between them, unto her Education and Personal endowments, She had her E­ducation altogether under her Mother who was not onely a great pattern of Vertue and Modesty, but a severe instructer of her in the rudiments of Religion the rules of Morality and all principles of Vertue and Honour, under whose Disciplin she was kept in as strict a regularity as if she had been a Carmelite or a Carthusian, as is well known to many who hear me: inso­much that from her infancy she was so brought up, as to e­steem chastity the Richest Jewel of the Femal Sex, wherefore [Page 10]she hath been so well fixt by Education in the center of a Chast resolution, that she could never be drawn (by perswasions or any o­ther moral inducements of delight cōmodity or advancement that the World could suggest unto her) to Yeild to the bent of any exorbitant Lust or Immodest desire, and since the death of her Good Mother, she hath alwaies profest that she never thought her will could be carried in its proper Orb, but when it was placed in the good likeing of her nearest Relations and discreet­est Friends, according to whose precepts and Admonitions she endeavoured strictly to conforme her deportment in all things, she is not therefore like the young Women of St. Frianos Gate in Florence, nor was she when the Defendent unhappily knew her, like the practiceing Dames of Paris, who find nothing new or strange the first night of their Marriage, nor was she any of those pretenders onely to Chastity, who have sold their Virginities as often as new made Priests do their first Mass, but I may say in a very high degree of well grounded confidence, that notwithstanding her late misfortune she is not only an ap­proved example but also a wonder of Chastity; The like whereof will not perhaps be left upon the Records of this Age (all circumstances concurring) to the view of Posterity, inso­much that she may be perfectly resembled to the pretty Ermin which had rather expose its selfe to the hazard of Death by the Hunters Violence, then seeke the preservation of life in the wayes of defilement; So much of her Education in Vertue and modesty, which gives her a large claime to the knowledge of a worthy deportment: And now I am to slide into the consi­deration of some of her most remarkable qualifications which I shall briefly set forth in the light of Truth but not in the splen­dor of Eloquence. In the first place she having been instructed that an Estate without Vertue and merit is but a Testimony of good Fortune and no Advancement to felicity, she hath not one­ly endeavoured to keep her self by a Modest retirement out of [Page 11]the bad Customs which over whelm'd this Age, but also hath Labour'd the exornation of her self, with all qualities belong­ing to a Gentlewoman; So that to speak Negatively of her per remotionem imperfectionis, she is not blinded with passion nor puft up with Pride, nor precipitated by ambition, nor tickled by vaine glory, nor melted by pleasures, nor inflamed by Lusts, nor inraged with revenge, nor turmoyl'd by Ambiti­on; And again to describe her positively, for the comliness of her Statute, Figure, Port, Gate, Complexion, Countenance, Promptness of wat, and a fluent Tongue the ready and clear inte peter of her ingenuous conceptions, there are few of her Age who go beyond her; I am resolved against inlargements of discourse otherwise I might speak diffusively of all these her laudable indowments, as also of her affability which is the Mo­ther of affection, of her courtly accomplishments consisting in a proportionable agreeableness and compliance with all com­mendable or tollerable dispositions; If any shall object that the above recited qualities are baits which float upon the water without a hook and do rarely catch Husbands, to this I reply that she hath in surplusage of these a noble Estate sufficient to recommend her to the prime or at least the second rate of Hus­bands in the Kingdom: and therefore putting all together, I leave it to consideration whether a Lady so highly qualified and advanced above the Defendent in all respects, could comport in Marriage with a man of so mean an Estate and so contrary dispositions and habits of mind, in the mean time, I rest con­fident that if he had been crown'd with the Royal state and imperial command of all the Kingdoms upon Earth in their most Flourishing condition and pacifique possession, and if she by Marrying him might have enjoyed that universal Dominion the length of the worlds duration she would never have consented to the Fetters of his imbraces.

I am now nearer approaching to the thing in hand, and am in the first place to reduce into a succinct and Methodicall Nar­rative the beginning progress & conclusion of the whole matter of Fact, as well for the information of the Court; as to satisfie the curious inquisition of the People so far at least as it is conve­nient to stamp a figure of so foul a fact in their imagination; for, as it was wisdom in Galen not to leave behind him too subtile a Theory of Poyson, least he should thereby give oc­casion for the too ready practice thereof, So I dare not be too particular in relating the many subtilties and contrivances which the Defendent used in this affair, least bad inclinations in others may be too fully instructed to act the like evills, If I should afford them too broad an inspection extended to all cir­cumstances, the [...] And my first rise is, that the Defendent forgetting the aforementioned disparity be­tween him and my Client grew up to so high a conceit of himself, as that he presumed to make adresses to her in the way of Marriage, which he seem'd to prosecute with very much instance and solicitation: but my Client, though she was young, and not arbitress of her condition, yet knowing how to make a just estimat of her self, and finding nothing in him that might fit him for her acceptance, she immediatly desired him to dis­charge his mind of such vain hopes, and afterwards he renew­ing his motion to the same purpose, she repel'd him with seve­rity and contempt; not out of a feigned unwillingness, but a real aversion, and never after looked upon him but with a careless disdain loathing and detestation, and withall assureing him that it was as easie to blow Flint into flames with a paire of Bellows, as to kindle any flames of love in her by the breath of his solicitations, for his fairest words were as harsh to her ears as the noyse of Pea-cocks, and she took no more delight to see him, then sore eyes do to behold the Sun in its Meridi­onal altitude, she hated him as a Jew doth Images, or a non-Conformist [Page 13]a Surplice, she feared him as a Monster and avoyd­ed him as the Plague; Accounting his company as pestilenti­al as the infectious exhalations of the Dogs star, or the Maligne influence of a Comet: And indeed it many times happens that men advanced above desert from a low degree are like those Exhalations which being raised from Dung-hills become Co­mets of a direfull influence: hereupon the Defendent finding that the more he reinforced his attempts the more she stiffned the bent of her resolution against him; insomuch that her soft­est answers were so far from giving him hopes, that they did exceedingly increase his dispaire, and that there did not re­main in her disposition the least complyant softness which might be wrought to his desire, And that nothing was to be expect­ed from her but what an inexorable necessity could extort, and he being rigidly resolved to use arguments of force, where force of his arguments would not prevail, he sharpned his revenge as a Persian Author saith [...] on the Whetstone of his petrified heart, and put himself upon a design as Barba­rous and haynously flagitious as the malice of a disappointed Am­bition could invent, or the greatest cruelty perpetrate; And that executed in such manner as never any man who had his face wash'd at a Christian Font, especially a Protestant did own. I see ye begin to wonder at what I say, but that your thoughts may be the less transported into admiration, ye may be pleased to remember what Salvianus hath said viz. That some in his time were Christians only in opprobrium & Contumeliam Christianorum, in such sence the Defendent may perhaps pro­fess himself a Protestant, but to proceed I must tell you how he advanced from design to endeavour, and from endeavour to act the greatest violation and injury upon my Client, that she was capable of receiving, (for the greatest torments that Ty­rants have invented, or Martyrs suffer'd, are not to be compared with the Violation of Virginity) first of all therefore by a slye and [Page 14]crafty insinuation, he winds himself into a familiar, though seeret Acquaintance with her Maid whom then she took to be a plain faithful and obsequious servant, but afterwards in the event, proved a ci, ce, Medea, a Sphinx, a meer shop of sub­tilties, a practized Medianera or instrument in abomination: he proceeds so far as to Bribe this Maids good will to the favour­ing of his lust in the betraying of her Mistriss, and draws her so far along with him, as that she had at length not only a fin­ger in his Plott, but was also ingaged therein up to the El­bowes; and with as much endeavour as secrecy, industriously served his design, which was then as much hidden from the Plaintiffs observation, as is the middle of a right line from our sight when the raye of Vision falls upon the Extension, accord­ing to the diffinition of a right line thus given in the Persian Language by Machmad Shah Cholgi [...] and after they had a long time wrought in the Vaults of dark­ness, they contrive by a fraudulent abduction to deliver her to the disposal of his force and Violence, the Maid there­fore pretends an importunat invitation from her sister to supp at her house in New-street, as a Skreen to the private design of her abduction: my Client was at first very backward in her Inclination to go thither, yet at length through much per­swasion she condiscended to that, which, so great an importu­nity had urged her to, and promised to go; Whereupon a Coach was prepared, and thither she went, where without the least shadow of suspition, she was entertain'd untill about eight of the clock at night, and then as well out of her own in­clination, as out of a desire to conform to her Parents will, who could not endure her being out late, she was desirous to repair homewards & betakes her self to her Coach, which be­ing put into motion (as she thought homeward) she fell occa­sionally into earnestness of discourse with her Maid, which to­gether [Page 15]with the darkness of the night so surprised her animad­vertency of the way, that she never doubted whether she was going, untill at last, hearing some noyse she put her head out of the Coach, and then though the night was mantled in much darkness, she discovered that she was carried beyond Lt. Coll. Fernlyes house in St. Cavans-street, & there besett with an armed Troop or Squadren of Horse consisting of about eight Horse­men, who seemed to be as void of reason as they were predi­gall of words, which together with their rude compulsion used in hurrying on the Coach-man intimating their intent on to car­ry her away by force besides this she observed then in the Carriage of her Maid more then ordinary cause to suspect her fi­de [...]ity, and moreover the appearance of the Defendent who at the same time flash't terrour out of the angry Caverns of his Pu­mified face, cast the greatest injections of horrour into her terrified fancy: hereupon cold fear seized the blood in her veins, and hudled together her thoughts and spirits in such a confused amazement, as that she lost the succours of her usu­al reason, and knew not well what resolution to take, then thinking it too Insignificant an utterance of her grief, to ex­press it only in the common evidence of tears or to sigh out the sence thereof with a moderate, Woe is me! she according to the sharpness of her Resentments cryed out with the utmost extent of a roaring exclamation, imploring aid and pity, but they who would not hear her with patience, nor answer her with respect, like the bloody sacrificers of their Children to Molech in the fire, drowned her lamentations with the great­est shouts and most obstreperous noyses they could make, least her complaints being understood, she should be rescued. I leave you therefore to imagin what strange impressions were now begotten in this weak and timorous young Woman, af­frighted with the dreadful face of a present confusion, and the fore imagin'd forms of futurein creasing troubles, whilest [Page 16]they with their Menacing incitations adding speed unto the Coach-mans pace, every step of her rapid progress represent­ed new horrours to her imagination, insomuch that she being now carried beyond hope of succour from the Town, and de­stitute of all assistance that could Minister defence or rescue unto her in the Countrey; And there being then, no hope of escape to any Sanctuary, she being guarded as strictly by these Ruffians as was the Holy Sepulcher by the Pharisies: She was transported out of her senses into a deep soon, but shortly after returning out of that Extasie, she Meditated deeply with her new recollected senses, which advised her to fortifie her fainting resolution, and rather to make use of the force of reason then the Vehemency of passion; and thereupon she chang­ed her angry and loud Exclamations, into soft & mild perswa­sions, hopeing thereby to alter the by as of their rigid Inclinations into a Compassionat sence of her sufferings, and certainly had not their consciences been seared with the hottest Iron in the Devils forge they would have been toucht with a sence of her grief, which would have wrung tears out of a Marble statute, but alas her softness of speech served but as a burning Glass to inflame the passions of some of them and the softness of her words where they most prevail'd, were applyed as water cast upon a Smiths forge, which makes it burn inward with more intension for a time, but afterwar [...]s break out with a greater eff [...]amation, she then found the Arabian saying true which sounds thus [...] Viz. Where power is wanting endeavour is vain she therefore remains groaning under the deplorable increase of her mise­ries whilst they in a rude and unmercifull courage, force the Coach-man to incite his Horses to a swiftter course; by this time darkness had muffled up the face of the world in a hood of obscurity as dark as Pitch, she being then only hap­py in not being able to discern the Defendent, but much more unhappy in wanting light how to avoid him, she then attempts [Page 17]the throwing of her self twice or thrice out of the Coach, either to end her grief with her life, or to escape by the obscu­rity of the night, but still she was prevented by the strictness of the guard they held over her, wherefore being now con­strained to obey the overruling force of a violent and invinci­ble necessity, she must sit still in the Coach melting her thoughts into the bitter Juice of tears, as if she had bin of the Hyades who wept themselves to death, and as every step of her rapid course was a variation of her misery, so sometimes she implores pity from them, and sometimes she cryes aloud for help from the Countrey, untill at last in the swift course of so great a vio­lence she was drawn beyound the conduct of her own inclinati­ons, so farr almost as the Bridg of Donogh-brook, where they forc't her out of the Coach with intent to put her behind one of the Horse-men, but then, she being transported beyond her ordinary temper by so just a cause of Indignation, and being prepared to run through all accidents of fortune, and desirous rather to precipitat her self into a nee [...]er and more certain danger of death in resistance, then to be carried away further into their merciless power, she managed that reliques of her remaining strength to the utmost of resistance, and though winter had then cast its cold influence in great extremity on the earth, she cast her self into the deep and miery High-way where she remain'd so long kneeling in the myre as if her knees had bin rooted in that posture, and strugled with them in that place, even to the Laceration and tearing of her Cloathes and the loss of such Ornaments as she carried about her, all which time she did with a loud and shrill voice represent unto the affirighted Neighbours the sad accents of her oppressed heart, expressing its self in sighs groans and most lamentable out­cries, proclaiming her protestations to the world against her go­ing along with them, or ever to consent to marry the Defen­dent, sed sola erat in agro, Clamavit, & nullus affuit qui liberaret [Page 18]eam, at length they perswaded her to a belief of that which they confirm'd with many oaths, which was their promise to bring her immediatly to Dublin in case she would afterwards permit the Defendent to address himself unto her, and she being then tyred even to the loss of breath and unable to make any further considerable resistance, told them that on the terms offered, she would admit of his addresses in Dublin, whereup­on she was put behind one of the Horsemen, but as soon as she was mounted on horseback she found cleerly that all promises though confirm'd by oath stood for Cyphers in their accompts, for she was immediatly tyed with Tenacious knots of strong li­gaments to one of the most Churlish and most Robustious Horsemen amongst them, who with the rest of that Rude Company, carried her away all that night, when according to their irregular revolutions, of their sundry passions, and the va­riety of her interchangeable misfortunes, sometimes a disturb'd imagination stopt the passages of her speech, and sometimes new and sharp resentments gave her a voice to cry out, at length that no parcel of Calamity might be wanting to increase her misery, they declining the high-ways as Heralds do in Italy, bring her through the solitudes of a Countrey so ruinous and desolate, so void of inclosures and habitations and so unfre­quented that the high-ways were not distinguishable from the rest of the land, not improperly resembling the Arabian deserts, where the Caravan Pilgrims from Damascus to Mecca find out their way by the compass and Starrs: at last when she might have grown into some doubt of the School-mens doctrine, de nemine desperandum in via, almost starved with hunger and cold, she arrived at a Cottage about twenty miles from the City, where being taken from her horse, a most every limb of her as it were complying with the unwillingness of her mind, wanted sence and motion to carry her into the house, so that they rather out of necessity then an officious civility carried [Page 19]her into that dismall Pagliarella or Cottage, where, as before [...] every stepp of her wandring abduction was but a variation of her unhappiness; so now every minute of her abode in one place, is to produce, if not more, at least greater misfortunes; for dureing his Commoration in this place, she is encounter'd with necessities as well as force, and inward perplexities of minde, as well as outward inconveniencies of body, in relation whereof I shall be brief, least they prove as troublesome to you as they were greivous to her; For I am assured that neither you nor this auditory could easily swallow the tediousness of my dis­course should I handle all at length, for long discourses will not be received by them so easily as Welsh-women swallow down Flummery, nor would they all be as easily credited by a ty­red auditory, for they are indeed much like the Cloysters of the Temple whereof a Greek Author saith thus [...] as incredible to those who saw them not, as they were an amazement to those who did but much more to the aflicted suf­ferer whose abode in that place was like that of Purgatory where durante Commoratione there is nothing but torture and forment, for here she did not only suffer under a totall disfur­nishment of all accomodations fitting for a person of her quali­ty, as want of competent fire to oppose the rigid season of the year, food to uphold her, and convenient bedding to repose her selfe on, but also she was Molested with terrours of death and other horrible affrightments, but these were nothing in respect, of what she first suspected in the agitation of her minde and afterwards found too true in the event, for not only the care of preserving her Virginity pierced her Brain, but also the fear of loosing it transfixt her heart, but what was worst of all is yet to be spoken off whereunto I shall discend by degrees, hoping that you will pardon my Language, if it chance to be sullyed in the representation of so foul a fact for as it will not [Page 20]become me to adulterat truth in the description of a rape; so I must not Mutilat my Clients cause in cutting off any thing that is essentially requisite yet it shall not be said of me as it was said of Zazius, Verbis inquinatis significantibus tamen utebatur, noe, I shall rather decline propiety of terms in representation of obscene actions for they are in some sort like the verity of faith which as Actisiadorensis obserues, auctores melius exprimunt per vocem non significatiuam quam per vocem significatiuam, at the first entrance into the house she found the now Defendent in a feverish fervour of minde, as sullen as a Bull-finch, and as surly as a Lyon, evaporating like Elna or Mongibello out of his inflamed bowels the discontented passions of his disappont­ed ambition, shortly after his countenace and undecent ge­stures did interpret his design to violate her Virgin Modesty, which more clearly after appeared, by the more express ex­plication of his words, soliciting her to unchast imbraces, whereby she feared, that he having gon so far, would not finde rest but in extreams, thefore her Caution put a strict watch on his behaviour all that day having as great a regard to every of his motions as Astrologers have to the Planet Dominant, and and when night began to wrapp them in darkness from the eye of the world, she being more willing to prevent ravishing by Death then to survive ravisht, and being as fearful that her weakned body had not sufficient power to resist, as she was as­sured she had not patience to indure the dishonour of a rape, she resolved to be her own Executioner, choosing rather to cast her self headlong, into the dark-Dungeon of the Grave, then to submit, as a tame sacrifice to his lust: wherefore she made a shift to convey into the straw that was assign'd unto her for her bed, a Sword, with intention either to distroy him or her self in case he should dangerously attemmpt her Chastity.

Observe I beseech you, Joseph did leave his cloak behind him (in a strumpets hand, rather then he would yield to her lewd [Page 21]inticements, Lucretia suffered Ravishment, and afterwards be­came her own Executioner, but this grand exemplar and sub­lime patern of Chastity, whose fear did produce effects of courage, being as willing to part with her life, as Joseph was to forsake his Garment, to preserve her Chastity, the richest Jewel of the female sex, did so farr exceed Lucretia the wonder of Roman Chastity, that she did not onely choose freely to give up her life, by a Noble Anticipation, to prevent that mischief which Lucretia survived, but also would rather have expired in a generous resistance then suffer the hazard of a disgracefull Succubition and Compression, I am not willing to arrest your attention with any long discourse foraign to a bare Narrative of the matter of Fact, yet before I proceed further therein I shall begg leave to interpose a short parenthesis in justification of the Ladies intention in particular, and of their practice who have hastened their own death, to prevent the intollerable dis­grace of Ravishment, hopeing it will not be accounted a trou­blesome or useless digression,

I shall therefore in a word or two humbly offer to your ju­dicious censure, what I conceive is at this time suitable to that subject, and may serve for the future to conduct the conscience in any case where persons shall be reduced to the deplorable election, of suffering Ravishment, or of laying violent hands on themselves.

I know that the learned Taylor late Lord Bishop of Down, in his cases of Conscience doth so much cry down a voluntary dying to preserve chastity, that he saith it is no other thing then to sin to avoid sin, which he compares to Fannius his case of fear,

[Page 22]and making use of these words of St. Chrisostome to leap into the Sea for fear of Ship wrack, and to dye before the wound is given, he at last concludes in this comparison that to do violence to our body to preserve it chaste is as the burning of a Temple to prevent its being profaned, he might have ex­pressed himself as elegantly in the words of the now Lord Archbishop of Canterbury in another case, if he had resembled such an act by the starting horse, that to shun a shadow lept into a precipice. I know also that St. Hierome on these words, Jonas. i. Mittile me in Mare expresseth himself thus much in fa­vour of that learned Bishops opinion, non est nostrum, mortem arri­peresed illatam ab aliis accipere, unde & in Persecutionibus nonlicet propria manu perire, that is to say, we must not snatch death with our own hands, but receive it when it is impos'd by others, and therefore in persecutions we must not dye by our own hands, so much St. Hierome in defence of the Bishop.

I cannot Iustifie the Ladies intention but in opposing the Bishops opinion, and by answering the allegation of St. Hierome, which seems in the sound of vvords to make so much for him.

To ansvver therefore the allegation out of St. Hierome is a thing that vvill easily be done, for the limitation of his vvords by an exceptive clause immediatly subjoyned to vvhat is alledg­ed, viz, non licet propria perire manu running in these precize terms viz, absque eo ubi Castitas periclitatur, brings St. Hierome to my side, and declares him opposite to the Bishop, and there­fore if the judgment of that ancient and most learned Father, be as vveighty a testimony to Truth as the opinion of the Bi­shop; I need say no more to bring both Scales at least to a Con­trapeso or aequilibrium; but to vveigh down the same vvith more pressure of argument on our side, I shall cast in a soprapeso compacted of Law, illustrious examples and due applause of those who in such streights have hastned their death.

The Law is clearly expressed in the words of Paulus libro undecimo recited in the ff. l. isti quidem. (). quod si dederit, where the subject being violation of Chastity, it is said, viris bonis iste metus Major quam mortis esse debeat. i. e. he that fears to loose his Chastity, fears more justly then he who fears the loss of life.

As for presidents I shall not being into example those w [...]o for less causes hastned their deaths, as the Prisoner of whom Seneca tells us that being to be exposed to wild Beasts in the The­atre, he broke his neck in the spondels of the Wheele where­with he was drawn; nor Sampson Saul or Razis [...] who are usually alledged as common Vouchers to prove that a man may hasten his ovvn death.

Be pleased to recal into your Memory that vvhich Bishop Taylor if he vvere alive could not deny; That vvhen the Muscovites, broke into Livonia, and in their sacking of the City Wenden used all manner of Cruelties, and Barbarous imma­nities to Men and Women, filling all the streets and houses vvith blood and Lust, a great many of the Citizens then run­ning to the Castle, blevv up themselves vvith their Wives and Children to prevent those horrours and flames of lust, which they abhorred more then death.

I am sure you cannot forget the example of Pelagia mentioned by St. Chrysostome, vvhich comes home to our case. Pelagia virgo quindecim annos nata sponte sibi necem maturavit, parata quidem [...]rat ad Cruciatus tormenta (que) & omne suppliciorum genus perferen­dum, sed metuebat ne virgininatis Coronam perderet, i. e. She being a Virgin of fifteen years of age, of her ovvn accord she hastned death to her self, she vvas indeed ready to have suf­fered all sorts of most exquisite Torments, but she vvould not loose the Crovvn of her Virginity.

So much may serve for the Legality and illustrious Exam­ples, of hastening Death to prevent Violation of Chastity.

I shall now make it appear that it is not only lavvfull and ac­cording to good examples, but a so just and very commenda­ble from the further discourse of St. Chrysostome on that occa­sion, hence you may perceive saith he, that the lust of wicked Hangmen struck fear into Pelagia, and therefore from their in­jurious lust the Maiden removed and snatcht her self, having had a just cause by her Voluntary death to prevent so great an injury, as the loss of her Virginity: it is also reported by Laurentius Muller that the Act of the forementioned Livo­nians who hasted their own deaths to escape the lust of the Muscovites, was by the rest of their Countrymen, and even by the Muscovites themselves reputed Excellent and admirable, and Bishop Taylor himself confesseth that the Au­thority of the book Macabees Commends with great applause the of Razia as glorious and great.

I having thus shewed you that the preservation of Chastity by Voluntary death may be justified by Law practised by Saints, & commended by great good & wise men; I shall now only ob­serve unto you that the last Consideration which is com­mendation of good holy and learned men, is the prime Argu­ment which the same Bishop useth to legitimate the Stratagem of a lye, or the prevaricateing with a sullen truth, to save a a mans life, in his cases of Conscience lib. 3. cap. 2. n. 10.

And now I am to return from this digression into the direct path of prosecuting my Narrative in which I may novv justly tell you that her intention had undoubtedly succeeded in ex­ecution had not her treacherous Maid novv apperaing an exerci­sed Agent in the affaires of abomination privily tooke avvay the svvord vvhich vvas sheathed above the hilt in the Stravv, vvhereby she became disabled to offend him or defend herself. I observe that the Auditory is already transported into admiration, but I shall say as did Charicleia in Heliodorus [...] i.e. Do ye vvonder at these [Page 25]things? these are yet greater which I am to relate: After this, she being much wasted by the abundant shedding of tears which some Philosophers tearm the sweat of an afflicted heart, and the excessive decay of her spirits by long wakeing, and relying upon the sworn promise of her Maids watchfulness, and the presumed humanity of the Family, she composed her self to a posture of rest, but alas the sleep of Condemned Crimi­nalls, and of women begirt with a streight Seige by a Barbarous Enemy was not more disturbd then hers, for that which should have afforded her rest to the reparation of her strength, serv­ed only to affright her imagination: untill at last in reality she found her self surprized by a Barbarous attempt of the Defen­dent to ravish her, she then in that Conflict sought for the Instrument of Death in the Straw, but found quickly that it was subtracted by her Maid, she was then plunged into a most desperat perplexity of mind, which had been enough to have swallowed all hopes of help had not her Vigorous reluctancy been seconded with an accident which hapned at that very time, which was a sud dain raging sire that took hold on the Thatch of the house. Though she then escaped the danger by quench­ing the Luxuriant heate of his imodest desires per jgnis appositi­onem yet you may well imagin what direfull impressions of fear and horrour, were begotten in the timorous minde of this dis­tressed Lady, for then she wisht that the happie accident which had put fire to the house, had also put her adversary into a flameing combustion: or that by a suddain incineration it had reduced her into Ashes. When the flame ceased, and her affli­cted minde remained under the terrour of these imaginations, her Treacherous Maid faced with the Vizar of a smiling countenance perswaded her again to repair unto her rest, assuring her that she would lye by her, and with her vigilancy and assi­stance would secure her from the violence of the Defendent. wherefore being ready to faint in her spirits for want of sleep [Page 26]she suffered her selfe to be perswaded to yeild to that which she perceived unresistably seizing upon her, but the Maid which should have been her preservation proved her destructi­on, insomuch that it was then with her as it was once with the Jews in the Siege of Jerusalem according to the words of a Persian Author, [...] remedium vitae causa mortis erat they both therefore lye upon the Bed of Straw, and after a while, the Maid most traiterously withdraws her self after the manner of Piantone which is partire senza licenza e abandonare un amico, to part without takeing leave; and like a thorough paced Beast in iniquity yeilds her place to the libidinous Defendent: who sur­prized the person of my slumbring Client with all endeavour he could use to deprive her of her pretious Virginity: she then a­wakned rather to an amazement then out of Sleep resisted him with the greatest opposition she could make, crying out for as­sistance, whilst her Maid behaved her self as an unconcern'd person, as if she had been one of the Daughters of Martinus Ame­lius or of the Family of the Achtsniets the people of the house terrified by so great a force as was then over them, gave noe help to her; but rather with a Cowardly silence seemed to ap­prove that villanous fact; which otherwise I believe in com­mon Charity they would have loudly declaim'd against, dure­ing which time also his accursed Complices not only encour­aged him in the pursuit of his lust by polluted discourses, more loathsom then the sulphurious evaporations of Hell, useing such words as might have moved Lucretia Portia or Penelope to Luxury, but also helpt him & disabled her in such Barbarous manner as that I may modestly express my self only in the words of Hydaspes to Claricleja dicere non possum caeterum vobis relinquo Consider andum, at last having benum'd her Senses with the bruis­ing of all her limbs as if he had been of the opinion which was [Page 27]tracqued to an eminent Person yet liveing by a Curtesan of honour in Rome, called Nina Barcarola who not being so curte­ous to that Person as to others, he caus'd her to be pub­liquely whipt in Rome, whereupon she writ a letter unto him setting forth that the reason of his severity to her, was, that he might take the more delight in her, for as much as Carne battuta was piu saporita flesh that was beaten was most savory.

Now the two Combatants as it were intangled in a Close, she was overmatcht by the prevalent force of his Lust; which govern'd the functions of his Libidinous limbs, and he like a stiffned pillar tooke such advantage of her imbecillity, that breaking the Seal of her secrets he blasted the verdent Law­rel of her Virginity by Carnal knowledge of her, in which act as it was said of Lewis the 12th of France his acting with his Queen, he did rather possess then enioy her, for I am most Consident upon the Credit of her own relation and other inducements of belief, that She tooke no more pleasure in that Compression and Coniungment, then a toothless Old woman would have done in chewing an hard crust. Manycir­cumstances of this foul fact I am forced to put into oblivion for want of tearms to express them and my words faile me & I want expression to set forth her resentments of them, yet it is easy for you to conceive in what manner she lamented the rigour of her misfortunes reflecting as well on the shame of her living friends as on the memory of those deceased: for as St. Hierom said of Nepotianus, ô Faelix Nepotianus qui haec non videt, so may she say of her good Mother and her Honourable Grand­father lately deceased, whose memory remains and will alwaies be preserved in honour, that they were seasonably taken off the Stage of this world before this misery might have befallen them, for undoubtedly they would have shrunk into horrour to have seen this day.

The matter is not yet ended, much is reserued for the [Page 28]latter Scene of this prodigious Tragedie, for the Complices of the Defendent do now boisterously endeavour to perswade her, that the only means to remedy this Blemish and to repair the ruins of her Fame, was to joyne the Ordinance of God to so foul a fact and to marry with the Defendent; but she though in the depth of her perplexities was judiciously convinc't that to have married him afterwards, was, but to turn a green wound into a Fistula or an Exulceration, and therefore pro­tested against it with as great detestation as she could express, whilst the Defendent seem'd rather to boast of, then to blush at so foul a fact.

You are now inform'd of a rape so Barbarous, so prodigious, that if it were possible to collect the voices of all Nations together, the Defendent would be Condemned by the suffrages of all mankind, unless the Enormonsness of the fact might authorise his Crime, or he might be made innocent, by the Circum­stances that did mainly aggravate it; or unless his force were as able to abrogate as to break the Law: for of all vices apper­taining to the Flesh saith Ottauiano Zuccaro, non é nissuno vitio checon esso seco porti piu puzzolente infamia.

I am now to informe you that the Defendent at last thinks it necessary to overspred with forged pretences, the broad face of so great a Crime, and therefore he would palliat the rape under the colour of Marriage with the Actrix. Nov­atus consecrated himself a Bishop, and the Defendent might as well have Married himself, if Coniugall relations might have been made up [...] but that would not serve his turn, he wants two things, first of all the consent of my Client, secondly Celebration of Marriage: the first he endeavoured, but found it too difficult to obtain, the latter he thought easie to Compass by a forged Licence, he therefore in the first place applyes him­selfe to her by all Arguments he could take from the ordinary and known topicks of perswasion to gaine her Consent, but she [Page 29]refusing Complyance, he cast a dismall Frown on his Counte­rance and in most furious accents of speech menaced her, some­times to send her to Gallway, and somtimes threatned her with expatriation, telling her that he would immediatly send her into France by a Ship then in her view, which he pre­tended he had prepared for that purpose, all this did not pre­vail, therefore he resorts to his instrument of force that incutiendo timorem, he might at least screw her up ad consensum non con­tradictionis, & prevails by what means I am unwilling to instance in, with a Priest, to attempt Marrying of them, in pronouncing some words of the Office of Matrimony, which he did utter, notwithstanding that she had by many absolute words and express and infallible signes (and in particular as you have heard by throwing with contempt the ring forceably pla­ced on her finger into the chimny) made sufficient indications of her dissent, even then when the Frowns of many angry and menaceing foreheads would have restrain'd her from the free­dom of a plenary Contradiction. The matter being thus done, he knew well enough that it was not the loosing of Virginity but conjugal allyance that made a Marryage: for it is a rule of law that nuptias non concubitus sed consensus facit, he was also suf­ficietly perswaded that the words of a Priest do not operat any thing as to the Celebration of Marriage without the lawful consent and mutual union of wills, and that the Priest could do no more without he consent in this case then if Poncio­nello had acted the part of a Priest, yet he being desirous as I said before to Cover his offence, and perhaps stirred up some what by his disappointed passion, to consult with malice that restless Hag and Mother of calumny, he endeavours by pub­lique impressions of Calumnious jactitations, at several times and in sundry places to make the world believe that she was his Lawful Wife, and to insinuate it vvith the greater verisi­militude into the beleef of the popularese he caused several let­ters [Page 30]to be vvritten intimateing a pretended Marriage, at last he brings her to the Tovvn poorer then a Carthusian and lean­er then a Romish lent, vvith intention to keep her secretly within his povver untill he might assure himself of her affection, but at her first entrance into the Tovvn she vvas by Gods providence so happie as to meet a friend of hers, by vvhose happie assistance and the Lord of Arans favour and prudence she vvas immediat-restored to liberty, and then she began to act her Part. liberis habenis, and in the first place the same day she came to Tovvn maks a protestation against the force and Injuries offered her in Authentique forme of Lavv, which as it was not possible to do it sooner, so she could not well have delayed it longer.

Sir: I know that Calumny is less regarded since it became so commonly interwoven in the dialect of these times, and that it was never very operative with wise men, where it was not accompanied with an opinion of sincerity in the Author, and I likewise know that this Calumny of jactitation of Marryage with my Client, is but a lying imputation proceeding from the disappointed ambition of him, who is but a profligat person, whose breath is sufficient almost to infect the aire and stayn the glory of the stars, yet my Client seeming thereby to be sully­ed in her Credit, which touches her in in the tenderest and most inward part of her concernment, and being as unwilling to con­ceal her misfortune as she was unable to lye under the imputa­tion of so foul a Calumny in this Age, wherein most eares are as Credulous as his tongue is licentious, applyes her self to this honourable Court, as the proper and free streaming Fountain of Iustice, wherein she now casts her self to wash out the stains of her wounded reputation, and hopes that the De­fendent being overwhelm'd at last under the burthen of his Crimes will find the Catastrophe of his pretensions partly in the doom of this Court and partly in the just severity of the Common Law.

Sir I have faithfully, though not curiously guided you by the Torch of truth into the knowledge of the matter of fact, and in my relation thereof I am confident that I have not abu­sed any thing but your patience, with which also I have com­plyed, in the omitting of many aggravations more then circum­stantial against the Defendant, and though I should now by a cleer shewing forth of evidence confirm every particular of what I have presented unto you, yet to recompence in some sort the length of my Narrative with the brevity of what I am to speake of, we are resolved to apply the evidence to no more points of controversie then are absolutely necessary to deter­mine the two great Articles viz, that there was not, nor could be any lawfull marriage contracted or celebrated between the Actrix and the Defendant from the time of the [...] and abduction untill her restitution to liberty in regard of the force and fear which continued all that time upon her, and that he is guilty of a scandalous jactitation of marriage for which he deserves to be first chastised with the severest rodds of Eccle­siastical discipline, and then to be transmitted a Consistorio ec­clesiae ad praetorium Regis. i. e. from the Court Christian to the Kings Bench.

WE have now reduced the matter of fact to its true species, and you may be pleased to observe, that we have proved with legal and sufficient evidence so much thereof in this cause as is requisite to the founding of our intention, for we have established beyond all contradiction the verity of the following particulars.

• First the abduction of the Actrix by the Defendant and his complices vi armatâ on the Twenty Seventh of January 1668. and that the Actrix or the vim passa from the time of that ab­duction untill her restitution to liberty in this City, continued under the force & terrour of the Defendant and his complices.
• Secondly, That during the continuance of that force upon her, she was most barbarously Ravisht by the Defendant.
• Thirdly, That immediatly upon her restitution to liberty she did protest in due form of law against the said force, and all Acts whatsoever done or suffered by her to her prejudice during that inter-space of time as invalid, and of no force to binde an obligation upon her.
• Fourthly, That the Defendant hath in a most vain glorious Jactitation boasted that a marriage was Celebrated between him and the Actrix during the time she was under that force and terrour.

I should now speake to such points of Law as are convenient to be applyed and fitly adjusted to the several matters of fact so proved; but in regard some circumstances of what was acted during the force seems to rest upon the Testimony of the Actrix, I shall first of all bring good Corroboration thereunto [Page 38]from undeniable Authorities of law, whereby it will appear in great visibility that [...] her own Testi­mony is sufficient evidence in that or the like cases. My first argument carries with it the weight of an undenyable Autho­rity, which is the opinion of Hyppolitus de Marsiliis a famous Jurist tractatu de fide jussoribus p. 614. num. 178, who saith de damno dato statur sacramento damnum passi.

Secondly, I know that a single opinion is usually accompted but the superficial glittering of a slight argument, I shall there­fore add unto the former Authority the attestation of Panor­mitan. extra de his quae vi metusue causa fiunt Cap. ult: where we have these words, probatâ violentiâ res amissae probantur per juramentum, & secuto petentis juramento sit condemnatio.

Thirdly, I shall make use in the next place of the Authority of Chassanaeus in his commentaries in Consuetudines Burgundiae p. 61. where he expresly declares that Statur juramento Virginis contra deflorantem, which words are so apposite and compleat that they need no addition, and so evident as that they want no interpretation.

Fourthly, I shall urge another Authority as cleer and as full as any of the former, but of more assured determination, and so powerfully convincing that there can be no evasion from it, and that is taken from the Sacred leaves of Holy writ, Deutre­nomy the 22th and the 24th where Grotius in his annotations referring to his book de jure Belli ac pacis lib. 2d. Cap. 1.12. saith lex Hebraea puellae de vi illata in agro credi vult.

Fifthly, Though so cleer and full Authorities as I have pre­mised need not be supplyed by former presidents or justified by instances of former judicial decisions; yet because examples are indeed the life and light of natural reason, and are the best fortifications in all controversies of this nature, I shall produce one or two presidents, the first is the case of Bishop Januarius 2. q. 1. Cap. imprimis (.) Gloriosus, where Gloriosus Comitiolus [Page 39]was ordered by decree, to restore and make recompence unto Bishop Januarius, whatsoever he should prove, by his own Oath, to have lost or suffered whilest he was under force and terrour, quicquid praedictus Episcopus per violentiam at (que) insecutionem ipsi­us expendisse, vel damnum pertulisse, dato sacramento firmave rit iidem episcopo restituendum condemnetur, where you may observe the very Image of our case, for the vim passus is admitted to prove his wrong and interest meerly by his own Oath, and the reason is well rendred in the gloss, hoc ideo est, quia res talis aliter nequit probari, to the same purpose you may consult the Code de fide instrumentorum l (.) ultima.

Sixthly, Again you have another the like case among those which are termed casus longi Bernardi, extra de his quae vi metu­sue causa fiunt cap. super eo, in these words, quidam dicebat se spoliatum fuisse a quibusdam adversariis suis per violentiam, con­venit illos in judicio, lite contestatâ▪ probavit solummodo per proprie um juramentum, singula quae amiserat, sed de violentia sibi illata, probavit per testes, & sic condemnati fuerunt, and this condem­nation was afterwards confirmed in the decretals by Gregory the Ninth, I shall add no more for proof of this point, for whatsoever is offered above the heaped measure of a plenary probation is to be esteemed as no more then a learned extrava­gancie.

So much for the cleering of our evidence, there is one thing more which I must offer to consideration before I proceed to the main descissory points of Law, and that is the justification of our proceedings.

I know no objection of moment that can be raised against the regularity and sufficiency of our proceedings in this cause, yet to answer the greatest Cavill that hath been made against us, I must take notice of what Doctor French hath spoken quoad litis ordinativa, I conceive it was a vast degeneration from ancient and Canonical practice, that he should have had admis­sion [Page 40]to speake in the behalf of the Defendant not onely pro­nounced Contumacious, but also excommunicated if not out­lawed, I do not mention this so much by way of complaint, as to put you in mind of what he said in a word or two, for though he spoke often yet he started but one objection, and that was onely to oppose the manner of our proceedings a­gainst the Defendant for that he was not personally cited, this objection he often retrived and as passionatly urged it against us, and no wonder, for it seem'd like Sampsons lock wherein his whole strength lay, it hath been formerly dissheveled, and it is now to be cutt off by a total abscision, to the which end I shall bring it to the test of Law and reason.

I shall never oppose any thing which I think is true, and therefore I must not deny so refulgent a truth as is the neces­sity of a Citation in all judiciary proceedings at least between party and party, which is not onely founded in the law of na­ture, but also by all other lawes owned and approved of as fundamentum juditii, for which reason the Clementine Pastoralis de sententia & re judicata declares in the case between Henry the Emperour and Robert King of Sicilia that sententia dici non meruit quae a judice in absent em nec citatum legitimé, ac inau­ditum, & per consequens indefensum lata fuit, which doctrine is also most cleerly expressed 33.92. cap. secularis & 36.96. Ca­pite multorum.

But whether a personal Citation be necessary in all cases or particularly in this, is the question, for resolution whereof in the negative, I might urge the indulgence of the law [...] ff. de Excusationibus made by Antonius Augustinus, which gives way to Cite persons [...] personaliter aut domi suae, which is as we use to say personally or by a viis & modis.

It is apparent upon inspection into this law that I do not mis­alledge the words, and that they sound cleerly consonant to this [Page 41]note; that in caling of persons to Judgement we may choose whether we will Cite them personally to appear, or Summon them in by a viis & modis for the words are alternate [...] personaliter aut domi suae and in alternatiues, it is well known that the debtor, or he who is to performe the obligation is to have his election, for saith the law si plura alternativé seu disjunctim adscripta sint unum adim­plere sufficit, ut obligationi satisfactum videatur.

But for as much as I should seeme to strain this Law too far and urge it further then our Case requires, by serueing up the sence thereof ad montem literae (for it would be as absur'd that the person should not be personally Cited where he may be had, as it would be irrational to require that he should be per­sonally summoned where he cannot be found: I will there­fore supply out of the principles of right reason the interpreta­tion of the Law where it seems defective, and accommodat the the words to a perfect understanding, and directly to our proper Case, by distinguishing between alternatues of simyle Election, and alernatives of preorditat disposiion; an alter­native of simple Election is where a person or persons obliged to performe any two or more things, may, without being Confined to any order of Election make choise of which he will to satisfie his obligation, as for Example if I oblige my self to pay unto Titius at a certain day, an hundred Barrells of wheat, or in lieuthereof, an hundred pounds sterl: it is then in my Choyfe to pay which I will, and by the payment of ei­ther I am totally disobliged(.)An alternative of preordinat E­lection is when the payment or performance of one thing or an other may satisfie the Debt, yet so as that the one is pri­marily intended and required, and the other is not sufficient unless subsidiarily upon the failing of the former, as for Ex­ample, by the Civil Lavv since the Epistle of Divus Hadrianus, (the Emperour and not Pope Hadrian the 4th as Fuller in his [Page 42]Ecclesiasticall History misapprehends) became of force, the Creditor may sue the principal Debtor, or his sureties, but cannot sue the suretie nisi excusso principali unless the fideiussor hath renounced the benefit of that Epistle, so it is in our Case, vve had liberty to Cite the Defendent personally or by a viis & modis but vvere limited by such course of preordinat Election, as that vve could not Cite him by viis & modis so long as we could have served him personally, so that Panormitau Capite causam Extra de dolo & Contumacia n. 5. saith Citatio debet primo fieri in persona si possibile est, alias fit domi, and therefore Histiensis quoted by Panormitantit. eodem saith, si in provincia est debet citari personaliter ubicunque reperiatur.

The question therefore vvill be vvhether the De­fendent vvere to be found or no for if he were not to be found in Provintia, it is most certaine that a viis & modis vvithout any personal Citation may be deemed suffici­ent and legal enough, as I shall prove by the subsequent allegati­ons vvhich are so cleer and manifest in the point, that no so­phistry or prevarication can vvrest them to another sense.

I shall begin vvith Bouhick Capite causam. Extra. de dolo & Contumacia, whose authority in this case is an evidence of un­controulable Certaintie, he saith si aliquis non potest inveniri personaliter ad citandum in provincia, sed bene extra. tune non est necesse eum personaliter citari, sed perinde est ac si non possit ali­cubi reperiri.

If you will cast more weight into the scales you may add hereunto many other Authorities as that of Panormitan. de dolo & contumacia cap: ultimo n. 1. citatio fit ad ecclesiam citandi quando non reperitur.

Again the same Author affords another Testimony to the some purpose as cleer as the former, capite inter quatuor. de Majoritate & obedientia. pro Citato habetur ille qui se occultat ut non possit Citari, and this agreeth with the Doctrine of the De­cretal. cap: quoniam (.) porro, ut lite non contestata non procedatur, [Page 43]Which is so cleer that it will leave no place for further doubt or scruple — porró speciales causae possunt occurrere in qui­bus casualiter est aliud observandum: ut verbi gratia: si super a­licujus Electione, vel copula maritali quoestio moveatur: tunc etenius no propter longam moram in Spiritualibus & temporalibus patiatur ecclesia laesionem: vel viro seu mulieri fornicationis occa­sio praebeatur: in huiusmodi casibus, si contumax apparuerit is; in quem actio fuit dirigenda seu quia peremtoria citatione recepta, venire contemnit: seu quia malitiose scipsum occultat: seu quiae impedit ne possit a [...]l eum citatio pervenire: testes, lite non conte­stata, sunt merito admittendi, & nihilominus si de causa liquat ad diffinitivam sententiam procedendum, hence the gloss upon the word impedit observeth, talis habetur pro citato denunciatione facta publicè ad do mumsuam, and his observation is there illustra­ted by several quotations Cap: ex tuae, de cle: non resid: de dolo & contumacia cap: ult: and for further illustration he there saith & ita sufficit quod publicè edictum proponatur ad domum suam vel ad ecclesiam.

Furthermore I conceive that where a litis contestation is not necessary, there, a personal Citation for one vvho is extra pro­vinciam is not requisite; but in cases vvhere there is a dispute de faedere Matrimonii, there is no necessity of a Litis contestati­on as appears in Bouhick de lite non Contestata, Capite. quoniam fre­quenter, by an argument taken a sensu contrario, for there he saith aut non agitur de faedere Matrimonij, sed de alio casu puta adulterio vel hujusmodi, & tunc non est procedendum lite non con­testatâ, vvhence vve may vvarrantably conclude, that in this case vvhere a matter of marriage comes into question, vve may preceed lite non contestata, and therefore vvithout a personal Citation.

Moreover ubi mora sit periculum allatura there is no necessity of a Litis contestation, but such a case as this vvill not suffer de­lay, for the lavv doth suppose there may be periculum fornicati­onis [Page 44]in case a young woman in fermento juventuis should remain unmarried until the person vvere Cited personally, for vvhich reason saith Boubick tit & cap. iisdem paulo inferius in causes Matrimonialibus & ipsas tangentibus indistincte procedi potest lite non contestatâ ad receptionem testium, the like you may see in the Clementine dispendiosam de judiciis.

Furthermore that I may baffle all opposition that can be made against us in this point, suffer me to add the Authority of celebrated Ruckerus in his consilia Matrimonialia vvith his reason annexed, non est opus ut requiratur absens extra provinciam seu civitatem, quia sic esset processus in infinitum, and for this opini­on he there quotes Bartholus and others.

This opinion hath as you have heard the suffrages of the best Doctors and Glossaries, I shall therefore make no further addition in Corroboration thereof, for I think I have more rea­son to beg pardon for having said so much, then to say any more to prove that a personal Citation is unnecessary in this case; I having novv removed the onely objections that could be surmised against our evidence and proceedings, I shall pro­ceed to the main decissory points of lavv, and enter into a more close and exact discussion of the Buisiness, and in the first place I shall speake briefly de vi & metu and shevv you first hovv they operat upon the vvill, secondly vvhat operation they have in this case as to point of lavv and impediment of marri­age, as to the first give me leave for your better satisfaction to recall into your memory some Philosophical notions vvhereby the violence offered to the vvill may be the better under­stood.

The principles of every thing may be reduced to a tvvofold difference, some are intrinsical as matter and form, some are ex­trinsical as the efficient and end.

Now, whatsoever belongeth to any thing according to its intrinsick principles cannot be termed violent, but onely that [Page 45]which ariseth from principles extrinsick, so that there is a two­fold extrinsick violence, one in respect of the efficient, and ano­ther in respect of the end, that which is violent in regard of the efficient, may be instanced in the motion of a stone or any heavie thing upward, that which is violent in respect of the end may be resembled by one who being in iminent danger of shipwrack casts his goods over board, being not violentated by any one per modum efficientis, but onely per modum finis, for that he would avoid the danger and so preserve his life.

Now between these two sorts of coaction there is a great difference, for coaction which is per modum efficientis is simply violent and involuntary having nothing of free will, as a stone in its projection upwards against its natural inclination.

But coaction which is per modum finis, because it participats somewhat of that which is voluntary, is not simply or absolute­ly violent, but onely secundum quid and such a violence is called by the Philosopher voluntarium permixium and as there is a twofold coaction so also is there a twofold agent capable of compulsion, the one natural, and that onely can be compelled per modum efficientis, as is a stone, for such an agent, when it doth not act by coaction, acts by a form simply determin'd to one thing, the other is a free agent and that cannot be violen­tated nor compel'd per modum efficientis, but onely per modum finis, and such a coaction may consist with liberty simply, this distinction you have in Aristotle in the 3d. of his Ethicks, where after his defining what is violentum, he gives an example of that which is violent per modum efficientis, as when the wind carri­eth away a man against his will, an example of that which is violent ratione finis he subjoyns there viz, such things as are wrought either by the fear of greater evils, or the love of a greater good, and of this second not of the first doth he doubt whether it be voluntary or noe.

Now the will which is a free agent hath a twofold act viz, [Page 46]an immanent and interiour act as that of nilling and willing, and an exteriour imperat act as it is termed by the Schoolmen as the act of moveing the bodily members in Locomotion, as to the first act the will cannot be compelled by any thing per mo­dum efficientis, but per modum finis, yet as to the exteriour acts it may be compel'd per modum efficientis, for it is most cleer that one may move the members of another mans body against his will.

I have now made it appear how the will may suffer violence by fear and force, in the next place I shall offer to consideration what operation vis & metus have in this case as to impediment of marriage. I shall now handle them apart, and first de metu, for quod metus causa gestum erit ratum non habebo saith the Praetor ff. quod metus causa gestum erit l. 1. but because Labeo saith in this law, metum accipiendum non quemlibet sed majoris malitatis. I will therefore first define fear by the common suffrages of Doctors and the Gossaries to be instantis vel futuri periculi causa mentis trepidatio, and then distinguish thereof thus, there are three kinds of fear according to Zasius Institutionibus de actioni­bus (.) quadrupli, the first is a Concussive fear which proceeds from threats, and such was the fear that possessed the mind of the actrix when the Defendent and his complices breathed out menaces to carry her to Galway, or to transport her into France unless she would submit to his desire.

Secondly, an impressive fear which the Schoolmen and some Lawyers term metus facti, as when blowes are given or one is in restraint as my Client was when guarded in the time of her abduction by the Defendent and his Marmidons.

Thirdly, a compulsive fear, which proceeds a vi armata, and this was the terrour that affrighted the Actrix, so she was first of all surprized and beset in hostile manner by eight armed Horsemen, and by them or most of them guarded in all places [Page 47]from the time of her said abduction untill her restitution to li­berty, with swords and Pistols.

Thus much of the definition of fear & the several kinds there­of as observed by Zasius, I am now to shew you the operation of fear as to the annulling and impeding several acts & particularly that of Marriage, fear excuseth a man from the tye of a regular profession, in so much that if one through fear be made to enter into religion he may freely return to his former secular condition cap perlatum extra de his quae vi metusue causa where fiunt Barnar­dus Summs up the case thus, A certaine Noble man holding his Wife in suspition Commanded some Souldiers under his Command that they should carry her to a Wood and there put her to death, They accordingly bring her to the Wood, but the sword being drawn to execute that Command, the Souldiers moved with a generous & pious Compassion tooke pitie on her, and spared her life on condition she should betake her self to a Monastery and there assume the habit of a Nun; whereupon she is led into a Monastery, the Knight her husband sent two Bi­shops to the Monastery to impose on her the Veyle; the Bishops taking into their grave Consideration, that she was a young woman and had a young Son, grew suspitious of her change of life; they take her aside den anding the reason of her transition into that State of life, she therefore declaring the whole mat­ter in order, tould them that it proceeded meerly from feare of death; and that as soon as she could she would return into the world, the one of these Bishops that he might seem to sa­tissie her husbands cruelty feigneth the puting on the Veile up­on her, after wards this Knight dyeth, the Wife then immediatly leaves the Monastery, and takes another husbands wherefore the Bishop of the Diocese at the instance of the Nuns Excommunicated her, the injured Lady insinuats the matter to the Pope, whereupon his Holyness delegats a power to cer­tain [Page 48]Judges of absolving her & her husband from the Sentence of Excommunication, she taking an oath eorum parere manda­tis, and that then they should call her, the Abisse and Nuns be­fore them, and if it should appear by lawfull proof that she had entred the Monastery not through fear of death but spon­taneously, or that notwithstanding she had entred by fear of death, she had ratified her profession after the decease of her Husband, that she should be forced by Ecclesiastical censure to return into the Monastery, otherwise not, whereupon the said Barnerdus makes this observation, votum timore mortis emissum non tenet.

Again this fear excuseth a man as to gifts promises, or release of actions by him made, in so much that if a man through fear gives, promiseth or releases, he may recover forbear or repeat Eod. Cap. 2. again fear excuseth from the obligation of an Oath for these are the words of Panorm. juramentum metu Prestitum non est obligatorium, Cap. significavit de eo qui duxit &c.

Furthermore a man is excused by fear a renuntiatione sui juris, for whosoever through fear renounceth a dignity or office, he may lawfully enter into it again notwithstanding any such re­nuntiation eod ad audaciam; and for that judged cases in law are the best interpretations thereof, you may be pleased to take notice out of the Archives of the Registry of Armagh, of what was decreed in the Church of St. Peter in Droghedagh Anno 1553. by a provinciall Synode even in the time of George Dowdall Archbishop of Ardmagh and Primate of all Ireland concerning those Priests and Prelats who had celebrated the Sacraments and other divine offices according to the rites of those who were then deemed Hereticks, diffinitum est quod omnes supradicti qui non voluntate sed metu hoc fecerunt admittentur ad gratiam & absolutionem vid Canonem 6. whence it appears that [Page 49]even Priests and Prelats may be excused by fear from such acts as are deemed very great transgressions of law.

Lastly to come directly to our case, If a man or woman contract marriage through fear they are excused a Contractu Matrimo­niali and are not thereby obliged.

The Canonists hold that there are three things considerable in marriage, sides, proles, & significatio unionis inter Christum & ecclesiam, Fidelity, Issue, and the mistical signification of union between Christ and his Church, now every one of these three are overthrown or most likely to be hindered by fear giving cause to a marriage, first the signification of the foresaid Union is taken avvay by fear, for as Christ assumed human nature vo­luntarily, so marriage which signifieth that Union, ought to be voluntary, and therefore void of fear, ut signum correspondeat signato.

Secondly fear is commonly an hinderance to issue in as much as that for the most part propter displicentiam ortam a timore non intendunt procreationi prolis as is observed by Antonius Genuensis in his praxis Neopolitana p. 278.

Thirdly fear is repugnant to fidelity which is the great pre­servative from Adultery, for as the last Cited author writeth propter metum seu invitas nuptias de facili conguges labuntur in adulterium, nam quod quis non diligit facile contemnit.

Moreover that nothing may be wanting to way down the ballance on our side, I shall cast in over and above the former reasons and authorities, the express opinions in point of such other Lawyers, casuist's and Schoolmen as will give a more pon­derous then needfull addition to what hath been said, to prove that timor inique incussus is a diriment impediment to marriage, be pleased therefore to hearken unto Petrus Anchoranus in whose opinion you may safely fix your judgment extra de his quae vi metusue causa fiunt. cap. absolutionis, omnia gesta per me­tum [Page 50]sunt nulla, his reason is this quia metus continet in se dolum dolus autem dans causam contractui reddit eum nullum as you may see l. elegaenter ff. de do. so.

So that Azpilcueta the Spanish Casuist concludes well p. 249. in these words, aunque los sacramentos que imprimen character Comoil baptismo, valgan, peró il contrato del Matrimonio Con­traydo per temor, no vale nada, proque anzi lo ordinò layglesia per muchos respectos and a a little after he subjoyns as followeth el Miedo obra esto no solamente, quando el Constrenido fingió Con­sentir y no consentiò enel casamiento, peró aun quando consenti [...] verdaderamente, St. Thomas also is of this opinion, 4. dist 19. I shall therefore Conclude with Malettus whose words are as pertinent in this behalf as his authority is Competent pte. 1. p. 586. Matrimonium metu cadente in constantem virum injuste incusso contractum jure ecclesiastico irritum est, this conclusion is cleerly deduced from several places of the decretalls, ex ca­pite cum locum, ex cap: cum veniens ex cap. de Consultatione de sponsalibus, and herewith agree the most famous of the Schoolmen Thomas of Aquin: in 4. dist 19. quaestione unica Arti­culo tertio, Banaventure on the same place Art unico q. 1. Richars dus Art: 2. q. 3. Durandus q. 2. Paludamus q. 1. Art: 3. Major. q. 1. and the reason of this Conclusion is recited by Incognitu [...] on the sentences lib 4. Dist: 3. & 31. out of the decretalls de sponsalibus cap requisivit, in these words, quia invitae nuptiae dificiles exitus habere Consueverunt.

1. ob: Perhaps it will be objected against us in extenua­tion of the fear alleged and proved by us, that the Defendent and his Complices did not draw their Swords nor make use of their Pistolls, to this I answer that the evidence given by us makes it apparent that they drew both their swords and Pistolls but put the Case [...] since prejudicio veritatis that they had made no use of their swords nay that they had layd down their Arms [Page 51]at her feet, let it be consider'd what we finde written l. quoties Paragrapho qui in potestate & l, in delictis in principio ff de noxa the words run thus, ibi sufficit terror armorum ut­videaniur deiceisse, idem dicendum est licet portans arma ea depo­nat, cum enim possit ijs armis uti nihil corum depositio Confert.

Ob. 2. It may peradventure be further objected, that it is not every fear that is a sufficient impediment to Mariage, and this I grant to be true in several instances, as for example, if Meius be not incussus a causa libera ad exiorquendum consen­sum, but a causa naturali intrinsica, for which season a Marri­age Contracted by him whom the Phisitian could he should dye unless he did sudenly marrie a Wife, is good and valid, because the sear that forced him upon marriage did arise from a natu­ral intrinsick Cause.

Secondly, Si justé incutiatur metus a lege vel a Judice for capite ex literis, Extra, de stonsalibus we read si metus juste incu­tiatur a lege vel a Judice Praecipiente Matrimonium, tali metu­minime infirmatur matrimonium, and there is also the same rea­son Si metus juslus incutiatur ab homine privato, for if a fa­ther shall threaten the Ravisher of his Daughter to accuse him Criminally upon the Statute of King James of force in this Kingdom, unless he take her to Wife, in this Case metus cense­tur juste incussus, and a marriage so Contracted and consum­trate is firm enough though it proceeded from sear of an accu­sation, but these cases of Justus metus, and incussus a causa libera do not come within the State of our Controversie, and therefore conclude nothing against us, nor do they require any further answer then that the fear raised in the minde of the Actrix was an unjust fear ex parte defendentis.

Ob, 3. It may be objected that weapons not drawn out in­to use are not sufficient to raise such a fear as may cadere in con­stantem virum, for answer hereunto, it will be necessary first [Page 52]of all to declare what manner of fear it is that may Cadere in fortem virum, which I shall do in the resolution of Malettus, ad metum cadentew in fortem virum reducitur metus mortis vel mutilationis, vel fustigationis, atrocis cruciatus, vel incarcera­tionis, vel exilij vel servitutis, vel stupri, amissionis status honorifici, amissionis omnium bonorum vel magnae partis, vel rei pretiosae vel metus infamiae tam juris quam facti, Malettus par­te [...]. malleatione 56. bractea 44. p. 589. Col 1. but to give a more direct answer to the objection I shall betake my self to the words of the Law l. 3. in principio, & quia armatiff. de vi & vi armata the words are these, metus armorum cadit in constantem virum, licet portans arma iis non matur, again a less fear then usually falls in constantem virum would voyd the Marriage of my Client, by reason not only of the imbecillity of her Sex but also of the frailty of her tender years, the Law doth much indulge imbecillity and frailty for which reason women ob fragilitatem sexus may notwithstand­ing their obligations to Creditors, plead the priviledge of the Vellejan Senatusconsult for their immunity, as also minors ob im­becilitatem ingenij, if they become bound for the payment of debts may plead the advantage of the Macedonian Senatuscon­sult which sets them free from any such obligation, both these concurred in my Client fragilitas sexus and imbecillitas ingenij at the time of her abduction she was a Minor and under the age of Sixteen years, and therefore a less fear then what may Cadere in constantem virum is sufficient, Autonius Genuensis de­clares his opinion thus Minor metus excusat magis mulierem quam masculum quandoquidem fragilior estratione sexus Cap. indignan­tur 32. q. 9. but Abbas in dicto Capite cum locum saith, ex parte mulieris requiritur metus qui cadere potest in constantem mulierem, & Minor metus, quando concurrit in famina tenera aetas; cum concurrent duae qualitates, sexus & aetatis, vide praxin Curiae Ar­chiepiscopalis Neopolitanae p. 278. Anno 3.

Ob. 4. It may also be objected that our former conclusion doth suppose a false foundation, and that there can be no such metus or fear as may Cadere in fortem virum, for that Aristotle in the third of his Ethicks Cap. 8. saith [...] i. e. fortioris esse in terroribus vacare terrore & perturbatione, and if no fear or terrour can befall a valiant man, how can such a pretension of fear be any impediment to marriage.

Answer. To this objection, I shall answer first as a Philoso­pher, Secondly, as a Critick. my first answer is agreeable to the ancient Greek Scholias, and the latin Modern Comentaries viz, that Aristotle did not hereby require that a constant or valiant man should be totally exempt from fear, but that such a person should not fear any thing but what right reason should dictate unto him as worthy of fear, nor in a higher degree then pru­dence should rate, now certain it is what Doctor Parisiensis libro quarto saith dictat recta ratio plus debere timere mortem vel Carcerem quam actum Matrimonij alias displicentem, my second answer shall consist chiefly in the true recital of Aristotles words in the Greek and a true translation of them the Greek words therefore are these [...] id est fortioris videtur esse in improvisis terroribus vacare terrore & perturbatione quam in perspicu­is, the words therefore as you may be pleased to observe in a true recital and a faithfull translation, do not run by way of opposition absolutely prohibiting all kinds of fear, but comparatively set forth that a valiant man is less to dread sud­dain and unexpected surprizes of fear, then apparent or ex­pected dangers. I confess that [...] rather may be wanting insome Copies, yet the particle which cannot relate to any other word then [...] or to one of the like import and would be infignificant if the other were not either expressed [Page 54]or implyed, justifies the copies where it is used to be most per­fect and authentique, hence it followeth that [...] or if you will not allowe that word in the text, then the particle: is to be rendred rather per magis comparativum then by potius correct­ivum, and not as it is taken Galatians 4.9. where Erasmus saith that [...] or Magis hoc loco correctionem verius babet quam comparationem, the words there are [...] nor, as it is rendred John the 3.19. [...] men loved darkness more then light, that is they loved dark­ness and not the light, not comparatively but oppositively, which sence of the word [...] though allowed by most other translations, yet the Ethiopick interpreter renders it in a compa­rative forme, [...] yet so as the sence is the same for the Ethiopick doth not render the words according to our Greek Copie, [...] dilexerunt homines magis tenebras quam lucem, but thus dilexit Deus mundum & elegit homo tenebras potius quam lucem for the words in the Ethiopick run thus [...] and it is clear that though we may love one thing better then another comparatively, and so may love both together, yet we cannot choose after that manner but we must take the one and leave the other, but by the way to justifie the Ethiopick translation it is most evident that Greek Authors do use the word [...] for eligere as for ex­ample [...] I choose this before that, and whoso­ever reads Appianus Alexandrinus de bellis civilibus will find that [...] and [...] are of like signification where the words [...] are transla­ted Malunt servire quam aequo cum caeteris jure vivere but let it be supposed that the word [...], were wanting in all eopies of Aristotle, we know it is a rule frequently made [Page 55]use off in the interpretation of Scripture, that positivus non­nunquam comparative debet intelligi, as in the Gospel of St. Mark Cap. 9. v. 43. the Greek runs thus in the very same Idiom with Aristotle [...] where though the litteral interlineary interprets [...] in the positive degree pulchrum yet the Persian translation ren­ders it comparatively by a word of the same sound and sig­nification with our comparative better, [...] melius tibi fuerit, and most other translations render it comparatively the Armenian indeed translates [...] in the positive de­gree thus laitse kets bonum erit tibi, yet the adjunction of the particle kets makes up a comparative sentence thus laitse kets hel ikeansn jaiptenits mtanel kan erchois tsern oinel erthal i chehen id est melius tibi fuerit mancum ingredi in vitam aeternam quam habere duas manus & abire in Gehennam, so that from what hath been principally said in answer to this objection it followeth that the words of Aristotle alledged against us are to be taken comparatively and not simply prohi­bitively viz, not but that a valiant man may fear, but that he is to be less fearfull in a suddain and unexpected surprize, then in apparent and expected dangers.

Ob. 5. It may be further objected that though the metus or fear was a just incussus at first, yet it was not so all the time they were together, I shall with a ready answer unload the weight of this objection by offering unto your consideration what is already proved viz, that she was altogether under the power of the Defendent and his complices untill the 2d. February, when she was rescued from him in this City which in con­struction of law continues the fear, for so saith Sanches lib. 4. disp. 18. Anno 7. durat timoris causa dum durat subjectio timo­rem incutienti,

But perhaps if the Defendent were present he would as im­pudently [Page 56]reply her unto, as he hath already falsly alledged else where that she seemed by the indication of some exteriour acts at the time of her feigned or pretended marriage to be at liberty, to this I answer that she was there so farr from en­joying her liberty, that it is apparent she was under a great force, which I make good by the words of Zanches de matri­monio lib. 4. disp. 18. Anno 9. which are these, ut autem actus exterior inducat metus purgationem censeatur (que) spontaneus deside­ratur ut omni ex parte significet liberam & spontaneam voluntatem quia si ullam aliam interpretationem recipere possi non censelitur purgare metum, but put the case that as to all exteriour acts she had seem'd to be at liberty, this had not been fufficient purgare metum so long as the first cause of fear continued, for thus saith Zanches lib. 4. disp. 18. Anno 7 durante causa metus, durat metus quamvis in actu exteriori appareat ommmoda libertas, paria enim sunt quod quis compellatur vel compella possit l. novissime ff. quod falso tutore auctore gesium esse dicetur.

Furthermore to shew you how little any indications of con­sent do signifie as to the purgeing of fear in a case of marriage, I shall collect into as contracted a brevity as I can, some un­doubted pos [...]tions which I find in Earboza his vota decisiva canonica, voto primo, delivered in a case of this nature debated and decided in curia Matritensi between two noble personages viz, Ludovick and Josepha which I shall apply in answer to this objection, the positions are these.

• 1 Metus antecedens nor purgatur per hilarem vultum tempore contracti Matrimonij extensum. Anno. 104.
• 2. Risus in actu Matrimonij contrahendi non est indicium con­sensus Anno 107.
• 3. Metus praeambulaus non purgatur ex cantu & risu puellae An­no 127.
• Metus non dicitur purgains ex osculo & refectione.
• [Page 57]5. Per verba sponte facio per metium passum tempore metus prolata, non purgatur metus, sed geminatur, ibid. Anno 8.

Nay Alciat. goeth farther resp. 5. idemest si matrimonio con­tracto subsequatur dotis instrumentum, but Abbas in capite super hoc de renuntiatione giveth one reason which serves to main­tain the truth of all the forementioned positions in these words, etiansi puella risit dum desponsaretur raptori eum (que) oscula­ta est, attamen ex quo durabat eadem metus causa, praesumitur me­tu consensisse, & risum illum finxisse, Bartholus also speaks to the same purpose l. penult ff. de condictione ob turpem & injustam causam, & in l. 2. ( ob quod rieto causa. I conceive there hath been as much said already as may serve to take off the force of the objection, yet to evict confession from any ingenious adver­sary, I will make use of some judgments in the case wherein lyes the sinews of proof for res judicata pro veritate accipitur, in the moneth of June 1589. it being then debated in Rota Ro­mana before the most illustrious Seraphino, whether consent was given by the woman, to the man who claim'd her for his wife and urged in proof of a free consent, that she had paid and defraid the expences of them both for their dyet, and that she had made several bargains, and had written several let­ters unto him wherein she expressed her self to be his Wife, the judgment was, that nulla fuit habita ratio ejus quod uxor fa­ciebat omnes expensas victus tam pro se quam pro viro, nec quod fe­cerit varios contractus, & scripserit literas viro in quibus gerebat, se pro uxore, cum non esset constituta in plena libertate, this judgment is related thus in praxi Curiae Archiepiscopalis Neapolitana p. 282. where the Author saith further in these words, & in eadem causa 23. Junij. 1589. coram Seraphino, ne (que) fuit habita ratio de muneribus Jocalium hinc inde transmissis propter radicem infect am metus precedentis.

And whereas it hath been urged as a great indication of her fredom from feare that she did declare her consent to Mr Archdeacon Rouse first I say there noe proof made of any con­sent whatsoever exprest by the actrix to the Archdeacon.

Secondly, I shall shew how little such a declaration of consent doeth operate in the like case, from an Example which we finde in the practice of the Arch Bishops Court in Na­ples p. 282. die. 27. Ian: 1589. in eadem causa Coram Gipsio fuit, neque habendam esse rationem quod matrimonium suerit Contractum in facie ecclesiae ad interrogationem Archiepiscopi, quafi quod me­tus hoc pacto purgatus conserctur, here the woman was married, not upon the interrogation of an Archdeacon, but an Arch­bishop, not in a privat Chamber guarded by the Complices of a Ravisher, but in facie ecclesiae, yet was it not thereby to be Concluded that she gave a free consent or that she was void of fear for it was thus declared upon the heareing of the Cause, hoc locum sibi vindicare, si dilucide ostenderetur, puellam adeo in libertate tunc temporis Constitutam fuisse, ut de domo & Civitate ex animi sententia exire ac etiam a [...]fugere potuisset: vide praxi [...] curiae Archiepiscopalis Neopolitanae p. 285. but sure I am that the defendent will not dilucide ostendere that the actrix was in so free a Condition in the Chamber where Mr Rouse is said to have interrogated her as that she could have gone away from them in plenam libertatem, nor will be prove it usque in Calendas Grae­cas vel Idus Romanas.

Lastly I conclude with Baldus that noe spontaneuos act of the Actrix Could purgare metum unlesse she were Constituta in loco tuto si enim non sit in loco tuto semper praesumitur metus durare, Baldus de his quae vi metusue causa fiunt if it shall be replyed that Mil­town was then reputed locus tutus, I answer that they per­haps may thinke it a place safe enough to secure to themselves but whosoever hath a soule able to set open the windows of [Page 59]sence may easily perceive that it afforded her noe safety from them, for as Baldus saith, arctatus sic quod non possit aufugere juste timet, & qui justé timet non est in loco tuto.

If it shall be further objected that Matrimoninm Copula Con­summatum may stand valid though fear was the cause thereof, I I shall allay the unreasonableness of such an objection with a double testimony to the contrary the one taken from Zanches the other from Reginaldns Zanches. lib. 4. Dis. 18. n. 5. non so­lum matrimonium ratum metu contractum, sed etiam matrimonium Copula Consummatum est invalidum. Reginaldus lib. 31 n. 19 Co­pula enim nihil operatur ad validitatem matrimonij nisi adsit Con-Consensus validus & liber.

If it shall be rep [...]yed that Ostiensis and Didacus as also Paluda­nus in. 4. Dist. 29 q. 1. Art 4, as they are quoted by Marcus An­tonius Genuensis p. 281. hold, verum perfectumque esse matrimo­nium quando subsecuta est ipsius viri Carnalis Copula etiamsi metu & vi Cognovisse mulierem alleget, I cannot deny the truth of those words unless I should prevaricat and deny my own knowledge, Nay I shall grant for corroboration of them that Menochius de presumptionibus. 4. n. 27. saith hanc veriorem esse opinionem, Yet I shall not yeeld any thing of the cause, but give a satisfactory answer to what is alledged, first by ob­serving the true force of the words which import no more, then that a marriage may be held true and perfect being seconded by carnal knowledge, notwithstanding the allegation of the man that he knew the woman, as being compelld by force and feare to act with her.

Secondly, By distinguishing between the Case of a man and woman, for as Monochius saith loco citato, in viro coeunte non possit metus aliquis considerari, quia si metus adesset, cessaret de­siderium, sine quo frustra adhibetur coreundi conatus, so that a man being according to the opinion of Menochius not subject [Page 60]to such compulsion, the allegation thereof, upon such hype thesis will not serve his turne, yet a woman being subject to such compulsion of Carnal knowledge as is Confest by ad La­wiers, it may be alledged by her as an advantagious excepti­tion against a forced marriage though seconded with Carnall knowledge, the reason of the diference is, for that mulier in­vita & coacta cognosci potest, at vir invitus & desiderio carens nec erigere nec coire unquam poterit saith Marcus Antonius Genu­ensis. p. 281.

But least it may seeme to pass away with a tacit allowance that he had Carnall knowledge of her after the said pretended marriage, we deny that he was with her in carnis congressu after his comeing to Milltowne, but should I grant that the Case were so, what advantage could the Defendent reape there­by, for put the Case since prejudicio veaitatis that the endea­vours of the Defendent and his wicked Complices had prevail­ed so far with her as to perswade her that the Marriage had been valid, whereas it was not, and that she had thereupon volunta­rily Consented to a Maritall Copulation, the Marriage would not thereby have been ratified or Consummate the reason is qui [...] nihil magis consensui contrarium quam error Zanches. lib: 4. Disp. 18. n. 5.

ob. It may also be objected that regularly all things metu facta may be reputed valid vntill rescinded by the action quod [...] vi metusue causa or otherwise, and that therefore this preten­ded Marriage is to hold untill rescinded by sentence of this Court.

To shew the insufficiency of this Argument I must distinguish, between the rule and the Case legally excepted from the com­prehention of the rule, for non ex regula jus sumatur sed ex ju­re est quod regula fiat, neither is the rule compleat without the exceptions, whence the Logitians say anomalia addita analogiae [Page 61]complet regulam perfectam, therefore I shall confess that there are some things metu facta which hold valid and are not to be re­scinded at all, insomuch that the ordination of a Deacon or Priest metu facta is valid by the Cannon Law as to the Character though not quoad votum castitatis, and that there are other things metu facta which hold their force untill a legal hearing and re­scission, as for example, if Titius be forced by Compulsion to sell his house and receive the money, the safe binds him untill he institute his Action vi & metus and obtaine rescission thereof by Judgement of the President of the Province Code de rescin­denda actione. l. 1.

Again a usurious Contract confirm'd by oath may hold, nay cannot be rescinded relaxatione Juramenti so saith Bertachinus Firmanus, ver­bo Contractus yet for all that which I have granted to fortifie the objection against me, I must say that matrimoninm metu habitum is invalid ab initio by dispositon of Law and needs noe rescission and thus much I am warranted to say by Navarr, de his qua vi metusue Cansa fiunt, eonsil 4. n. 6, & per cap. cum locum extra de sponsalibus, & cap: significavit de eo qui duxit in matrim &c.

The reason is, because, where the substance of an Act which proceeds from fear Consists in the liberty of the will there the Act is void ab initio, but so it is, that the substance of Marri­age abides in the liberty of the will as is confest by all Civilians Canonists and Casuists who hold that nvptias non concubitus sed consensus facit, wherefore saith Baldus ff quod metus eausa l. si mulier. si dos &c metus impedit omnem actum in quo re­quiritur voluntas spontanea, quia quando substantia actus est liber­tas volun tatis, actus metu factus est mullus ipso jure, he adds aliter se res habet si non requiritur talis actus, nec requirit percis­am v [...]luntatem.

If it shall be demanded wherefore Matrimonium ex dolo con­tractum should be more valid then Matrimonium metu contractum [Page 62]I shall give noe further answer then to shew the dissimilitude of both Cases perfectly represented in the words of Baptista Zilet [...] tus, quia matrimonium non bonorum accessione sed consensu per­ficitur.

One difficulty more may be here interposed upon an instance from the Common Law of the Land which is this, if a man mea­nace me in my Goods, and that he will burn certaine eviden­ces of my land which he hath in his hand, if I will not make unto him a Bond, yet if I enter into a Bond by this terrour, I cannot avoid it by Plea, and the reason is saith the Lord Chan­cellour Bacon, because the Law holdeth it an inconvenience to avoid a specialty by such matter of averrment, and therefore I am put to my Action against such menaces; though I must con­fess the Law to be as it is recited in this instance; yet I shall easily deliver my self from that difficulty if it may be so called, by destinguishing between Menaces relating to ones Estate or his person, for the Law is much different in the Case of menaces to ones person, and therefore if I be restrained in my person as my Client was, or threatned with battery or the burning of my house which is a safety and protection to my Person, or with burning an Instrument of manumission which is an evi­dence of my infranchisiment, if upon such menace or duress I make a deed I shall avoid it by Plea, and upon this distinction the Law varieth as you may see 13. H. 8.15. and 21. H. 7.28.

For if a trespasser drive away my Beasts over anothers ground, and I pursue to rescue them, yet am I a Trespasser to the Stran­ger upon whose ground I came; but if a man assaile my Person, and I fly over another mans ground then am I noe trespasser. Againe if a Sherriff upon a Capias falsly return a Cepi Corpus & quod est longuidus in prisona, there I may come in and falsifie the returne of the Sherriff to save my Imprisonment, for it is a Maxim of that Law that corporalis injuria non recipit estimatio­nem de futuro, yet I confess with Sir Frances Bacon in another [Page 63]Case that if a Sherriff make a false return that I am summoned whereby I loose my Land, yet because of the inconvenience of drawing all things to incertainty and delay, if the Sherriffs returne should not be Credited, I am excluded from any a­verment against it and am put to my action of deceipt against the Sherriff and the Summoners, and therefore it is said upon the like ground that the Law in many Cases which do concern Lands or Goods doth deprive a man of his present remedy and turneth him over to a further Circuit of remedie, rather then to suffer an inconvenience, but if it be a question of personal pain or tort, the Law will not compell him to sustain it and ex­pect remedie, because it holdeth noe damage a sufficient recom­pence for a wrong which is Corporal.

I having now broke thurrough those objections which lay as it were in ambush to intercept me in my passage, I shall proceed further to evince from right reason and sound Authority, that a Marriage Contracted by fear cannot be valid, nay that it is absolutely void ab initio without recission, and because weake arguments do many times stiffen infidelty, I shall make use of none but what are drawn from the Chiefest inducements of beleefe.

Be pleased therefore to observe a Case Cleerly stated and determined in the very same words by Panormitan, Cap. Abbas de his quae vi metusue Causa fiunt, where you may finde these words tenuit secundum matrimonium post primum meticulosum, nulla prius petita recissione per actionem quod metus causa i. e. the second Marriage was determined to stand good notwithstanding a former marriage inforced by fear, not rescin­ded by action, now if the first had been valid, the second could never have been adjudged good, without rescission of the former for Panormitan saith si valuisset primum matrimonium non tenuisset secundum, primo non annullato, the reason is be­cause matrimonium non potest consistere inter duos.

Again to argue with ampliation to a stronger case, if the Actrix had ratified such pretended marriage brought on by force with her oath, it would not have been valid by law quiaper juramentum non suppletur defectus consensus and therefore the casuist's say juramentum sequitur naturam actus supra quam cadit, & sor titur conditiones illius, and therefore I conclude that as such a marriage is invalid so also would the oath have been, and this is cleer ex capite qui duxit &c. Where with agree Zanches, Roderigues and Malettas Malleatione 56 saying ideo opus non esse relaxatione juramenti quando ma­trimonium per metum gravem celebratum fuit addito juramento, quia non opus est relaxatione ubi non est vinculum there being no need of relaxation, where there is no tye of obligation, so that I conclude with Doctor Parisiensis, olim incognitus upon the sen­tences that a marriage contracted by a forced consent cannot be ratified by an oath, and that for this reason, viz, that by such oath is sworn aliquid praeteritum, aut aliquid praeseus aut aliquid futurum, somewhat that is past, present or to come, first, if I swear what is past, it is most cleer, that my oath cannot ra­tifie such a marriage, for I either swear that I did lawfully con­sent, and so I am perjured, and periurium non facit matrimonium, or I swear that I did not lawfully consent, and then would it be less for the validateing of such a marriage.

Secondly if the oath be de presenti then I do either swear that I do inwardly from my heart yield a lawfull consent, and then I am perjur'd, and by force of perury a marriage cannot be made good, or I swear that I do not lawfully consent, and then it is much more invalid.

Thirdly, If the oath be de futuro, as for example I swear that I will consent unto thee, it is most certainly true that a marriage cannot be contracted by any such consent, because it requires consensum de praesenti verbis vel signis expressu, as you [Page 65]may see extra de sponsnlibus cap. cum locum, & capite tua nos, since therefore every oath must be de praeterito, aut de presenti aut de futuro, and none of these can ratifie a marriage contract­ed by fear, it follows therefore that the pretended marriage being already proved invalid by reason of fear, cannot be ra­tified by oath:

I need argue no more the invalidity of the pretended mar­riage from the impediment of fear; or ratione timoris incussi, I shall therefore proceed ad impedimentum vis illatae, which ac­cording to Duarenus l. 2. de eo quod metus Causa, is defined impetus qui repelli non potest, and is so odious in the Eye of the Civil and Cannon Law, that as all kinde of force is thereby prohibited, so also is there a most apt remedy and provision made for every kinde of force, and so saith Iohannes Eduensis, neque enim vim aliquam possumus inferre proximo, quin ei fit aliquo juris remedio succursum, and there is great reason for it, for violentiam Coercere est legi opem ferre, cap: sicut, extra de excessu prelatorum

vis or force is divided into these several kindes viz: vis inquieta­ua, vis turbatiua, vis expulsiua, vis Cumpulsiua For that which is called vis inquietativa you have the remedy of the Interdict quod vi & Clam, in. l 1. de vi & clam.

If you be infested with the second kinde of force which is vis turbativa, if it be in immoveables the Law affords you the interdict uti possidetis, if in goods moveable you may have the interdict called Interdictum utrobi

If you suffer a disseison, or disposession by the third kind of force which is tearmed vis expulsiua you may have for your immoveables the interdict unde vi and for your moveables the interdict vi bonorum.

Lastly if you suffer under a compulsive force which is our Case, you properly have the remeady of the action Called A­ctio [Page 66]quod metus causa as you may see in the Code and ff. under that title, I having defined force in general and divided it in­to its several kindes, I shall now apply my self to the last, which is vis compulsiua, and shew what influence it may have on our Case which consists of a Rape and other violence offered or attempted by the Defendent to inforce her to marry with him, but first of all I hould my self obliged to describe the Na­ture of a Rape, and how repugnant it is to the Law, as to the nature of it tria requiruntur ad raptum proprie, nimirum vit il­lata, abductio, & ut fiat causa concubitus, vel alterius libidinis, Abduction is Cleerly proved, the vis illata is apparent in her unwillsngness and resistance to be abducted, and their violent Carrying her away, and that it was concubitus causa appeares by the sadness of the event.

1. If there had been noe constraint upon her, and that she had gon away with him spontaneously without the knowledge of her Father it had not been a Rape but fuga voluntaria for saith Candidus, requiritur ad raptum ut vis inferatur ipsi vel hi [...] saltem ad quos pertinet.

Secondly. Had she been removed by force from one Roome of an house to another onely commodioris concubitus gratia it had been noe Rape, for he that forceth a woman to succumb to his lust whom he findes her in a certaine place without abducti­on to another place of some distance doeth not properly commit a Rape.

Thirdly. If she be not carryed away libidinis causa sed redi­gendi in servitutem, it is no Rape but plagium, or as they say furtum hominis, yet it is not requisite to a Rape that there should be actualis concubitus, but it is sufficient ut eo fine fiat, for saith Altisiodorensis, voluntas progressiua in actum pro facto reputatur.

So much may serve to describe the nature of a Rape, I am now to shew its repugnancy to Law, The Law of God pro­hibits [Page 67]it under the penalty of death to be inflicted on the Rap­tor Deutoronomie the 22. where it is said in the Hebrew Text [...] and if he lay hold on her he shall dye, the words seem at first to be very strict viz. that whosoever shall lay hold on a woman shall dye, therefore it will not be amiss perhaps to explicat the words [...] by the severall anoient and authentique translations of the Bible, the septuagint renders it by the word [...], inforcing her, the Syriack hath it [...] and shall apprehend or hold her by force, the Caldy paraphrase of Onkelos expounds it by the word [...] which though translated in the Biblia Polyglotta apprehenderit cleerly signifies to prevaile by force or violence as in a Conflict, and so the Samaritan Interpreter hath exprest it in the word [...]; and though the Interpreter of the Arabick translation agrees with the vu [...]gar Latin apprehends yet the Arabick word in that place is [...] & coercuerit eam which sense it beares in Raphalengius Golius and Gigaeus, and indeed the very same Hebrew word Fxodus the 9. and the 2. is taken for a violent detention and is by Buxtorfius Translated vi deti­nens, and noe wonder, for that Abenezra the Rabin ex­pounds the word [...] thus [...] that is to say by holding them forcibly by the hand or some other member, as if one should hold a dogg by the ears, Rabbi Solomon Iarchy also gives the like exposition of the word [...] these words [...] I shall not render the words too familiar in the vulgar English, yet take them in as modest tearms as I can express them in latin, idest apprehendens eum quasi per pudenda vi detineret eum, so much (as you may be pleased to observe) an addition to the rigour of the word by a true translation, takes by an equitable abatement from the seeming severity of the Law, and indeed it might have been supposed too rigorous a Law, that a man [Page 68]might not have so much as toucht any any woman without un­dergoing so great a penalty as death. But perhaps on the other side it might be thought a very remiss law that a Ravisher should go unpunisht or at most be punisht only with that which is incident naturally to all men, even to the most innocent, which is death, for the whole penalty here exprest is [...] & morietur he shall dye, and so it is in our English translation, but the Greek hath it [...] ye shall put him to death, the Syriack also renders it [...] he shall be slain or put to death, so also the Chaldy paraphrase and both the Samaritans, and there­fore it may be taken as an oversight in some of those worthy and learned persons who were the publishers of the polyglott Bibles to render it by the word morietur, for it is better expres­sed out of the Arabick Interpreter interficietur, for which rea­son the Italian, the Spanish, French, and Dutch, ought to be corrected as well as our English translation, all which follow the vulgar latin morietur, from this penalty and the Criticall Gusto that I have given you the true sense of the word [...] you may clearly perceive that by the Judaick law there could be no marriage between the Raptor and the Rapta.

I shall in the next place instanceint he Law of the twelve Tables, where I finde onely a plain prohibition without any pe­nalty subjoyned, for vim ingenuae feminae inferre caveto is all that I can observe mentioned in the remains of that Law Concern­ing a Rape.

But the ancient Rom in Laws afterward sharpned their seve­rity not onely against the Raptors, but also all accessories to that Crime, insomuch that they are brought under the pe­nalty of this Constitution, viz. Conscij veró aut Ministri raptus paenae capitali subjiciuntur, sive nolentibus sive volentibus virgi­nibus hoc egerint, parentibus si patientiam praebuerint, ac do­lorem compresserint, deportatione plectendis, sed & si quis inter [Page 69]haec Ministeria servilis conditionis fuerit compr [...]hensus, entra sexus distinctionem concremetur. vide Arnoldum de Herbolt de actionibus p. 642. and the Code de rapiu virginis l. 1. this law as you may observe by the by concludes worse against the treacherous maid of the Actrix, then the figure Bocardo where­in she yet deservedly remaines.

Nay the Canon Law punisheth not onely Servants but also all others, who are any way accessary to a rape with Excommunica­tion, infamy, incapacity for dignities and offices, as appeares by the Testimony of Gaspar Astete, libro segundo del estado de las Lonzellas, where he saith, el raptor y los que le dieron favore, son descomulgados infames e incapaces de todas dignitades. Which is the reason that by the Lawes of Heraldry whosoever he be who ravisheth a virgin, must bear his Escucheon reversed, and it appeares further by a rescript of the Concilium Aurelian­cuse, which was Celebrated in the time of Pope Hormisda, that the Church would not allow Sanctuary to Ravishers.

My next instance shall be in the Law of the Saxons, l. 49. about the year of our Lord 1032. where it is said in these words gif haw wudewan nyde name gebete wt bewere, gif haw meden nyde name gebete wet bewere i. e. qui viduam per vim stuprarit, proprij Capitis estimatione com­pensato, nec mitiori Conditione sit qui virgini vim intulerit, by this law also of the Saxons, you see there could be no marriage between the Raptor and the Rapta for gebete wet bewere he must loose his life,

I might also give instance of the ancient Lawes of Ireland in force about the same time under the Government of Brian Bor­haim, what the penalty of a rape was then in this Kingdom by that Law, I cannot yet directly finde out, but the effect thereof shews that the Law against Rape was most strict in it self, & as severely executed, for the Annalists say that in the reign of [Page 70]this Monarch a single woman might have travailed from Thi [...]us thuaid to Thuinchliodna being the whole length of Ireland and not meet one that would attempt to Ravish her.

Again what was the nature of this offence at the Common Law and what acts of Parliament have been enacted in Decla­tion, thereof I need not set forth at large, for it clearly appears in my Lord Cooke the third of the Institutes, Cap. 12. who there referrs you to a large Margin with a long and numerous traine of Ancient and Authentique▪ quotations, he there also ex­pressly recites Cases out of the Parliament Rolls, and the Re­cords in the Tower of London, to prove, in how great detesta­tion this offence was held in Ancient times and parilcularly in the Cases of Isabell the wife of Iohn Botiler: and of Margaret sometime wife of Sr: Thomas Malefait.

But to be more particular, Rape is Felony by the Common Law, according to to the Statute of Westminster the 2.34. and by the thirteenth of Edward the first, the Ravisher shall have judgment of Life and member.

Nay this offence by the Statute Lavv is ampliated so far as to become felony in the ayders and abettors as we [...]l as the prin­cipal, nay so far is it extended in the vvords of the Lord Cook as to bring accessories aide [...]s and abetters under the no­tion of principalis, for these are the vvords in the 3. of his In­stitutes cap. 10. if any be present, abetting and aiding any to do the act, though the offen"illegible"e be personal and to be done by one onely, as to Commit Rape, not onely he that doeth the Act is a principall, but also they that be present abetting and aiding the misdoer, are principal also, for proof hereof I recommend to your Consideration 11. Hen. 4. cap. 13. Anno primo Ed. 4. and shall further put you in minde that by the 11.12. and 13. Jacobi cap. 3. Clergie is taken avvay in Case of Rape.

I have novv shevved you the nature of a Rape and the re­pugnancie [Page 71]thereof to the Lavv of God, the Lavv [of the tvvelue Tables the Elder Roman Lavvs, the Ancient Saxon and Irish Lavves before the Conquest of Ireland, and to the Common Lavv, as also to the Ancient and recent Statute Lavves.

I shall novv dravv near to those Lavves vvhich are of most Concernment, to shevv that there could be no Mrrriage lavv­fully Contracted betvveen the Actrix and Defendent by reason of the said Rape and the force that vvas upon her dureing the time limited in the State of the Case, vvhich vvas from the first instant of her abduction untill her restitution to liberty.

To this effect I shall make use onely of the Civil Lavv and Canon Lavv, and the Doctrine of the best and most renovvn­ed Casuists as being the best rules by vvhich things of this na­ture can be vvarrantably determined, and though those reple­nisht treasuries might afford me abundant authorities and argu­ments, proportionable to the Offerings made for the Taberna­cle more then sufficient, I have made choise of a fevv, yet such as vvill stifly beare up the vvaight of the Cause, and I shall take my rise from the Code. l. 1. de raptu virginum ( l. 1.) vvhich book hath as much reason to persvvade as authoritie to oblige where it is of force, the vvords are these raptores virginum honestarum vel ingenuarum quasi pessima crimina peccantes, capitis supplicio plectendos discernimus.

In the next place be pleased to consult the Authentiques col­latione 9. tit. 25. novella 43. de raptis mulieribus where it is de­clared in these words, matrimonium inter raptorem & raptam non tenet.

If there were need of a more inlarged authority with a fur­ther addition of reason you might resort to Simon a Gronwegen vander made. cod de raptu virginum ( l. 1.) si vis publica raptum comitetur aliaeve circumstantiae crimen aggravent. [Page 72]facinoris atrocitas publicam vindictam poscit, quae per subsequeus matrimonium nequaquam tolli potesi aut aboleri, the reason which he gives is most prevalent, for it is no less then an undoubted rule of Law, viz: privatorum Conventio juri publico derogare non debet. There is an illustrious Example hereof in the registry of the Low-Countries, in the Case of Carolus Audax, which directly sutes with thelast recited authority.

If what hath been alledged out of the Civil Law hath not furnisht you with inducements, motives and arguments suffici­ent to decree, that there was not nor could be any marriage lawfully or validly Contracted, between them dureing the time of the [...], you may be pleased to consider fur­ther of vvhat I shall present unto you taken out of the text of the Canon Lavv, 36. q. 2. cap. 1. are these vvords repleat vvith authority in the point, raptor in uxorem non potest raptam accipere; but the reason subjoyned is yet more bigg vvith emphasis. Quia eorum coniunctio auctoritate canonum sancto­rum penitus prohibetur.

Again Extra 36. q 2. cap. placuit you have vvords of no less import then the former allegation, placuit ut hi qui rapiunt fae­minas, eas nullatenus habeant uxores, quamvis eis postmodum Conve­nient, aut eas dotaverint, vel nuptialiter eum Consensu parentum acceperint.

The councell of Aquisgrane also did not only separate such mar­riages, but would not allow that ever after they should be man and wife as we find in Eurchard, and the same was veri­fied in the Councel of Melda which for its warrant quotes a Synodall definition of St. Gregory to the same purpose.

Hence it was that Vrban the 8th of later times ordered Con­stitutione sexta, Regula Concellariae 49. that in all dispensations super aliquo gradu Consanguinitatis vel affinitatis ponatur Clausula, si mulier rapta non fuerit, though it was observed in rescripts [Page 73]of that nature long before in England and Ireland, and particu­larly in the Case of Nicholas Dowdall and Ellen Dilane of the Dio­cess of Armagh in the Reign of Phillip and Mary; for it appears in the Black book of Armagh fol. 20, by a rescript from Cardinal Poole to dispense with them in a then prohibited degree of consan­guinity, he there inserts this Clause in his letters to the then Archbishop of Armagh to absolve and dispense with them, dum­modo dicta mulier propter hoc ab aliquo rapta non fuerit, I finde al­so the like Clause in another rescript of the same Cardinal, in the behalf of one Richard Bedlewe and Matilda Bathe. The Civil and Canon Law being so express in the Case as I have already rela­ted, it were needless to offer any thing further of authority, yet to shew the Consent of other approved Authors, be pleas­ed in a word or two to hear the opinion of the Casuists to satis­fy you as well in point of Conscience as Law.

Emanuell Sa & Diana tractatu de Sacramentis p. 152. resolu­tione. 261. saye inter Raptorem & Raptam non potest fieri validum matrimonium, quamdiu est in potestate Raptoris, and so the Con­gregation of Cardinals have often declared saith Diana.

Herewith also agrees Rodrigues Lusitano cap. de matrimonio p. 641. non vale el matrimonio entre el que arrebata y la areba­tada mientras ella esta en su poder, furthermore. Carolus Mallettus Malleatione 57. Bractea 14. p. 605. tells us that matrimonium Contractum inter Raptorem & Raptam dum sub potestate Raptoris existit est prossus irritum.

We have now proved by Authority of Law and consent of Casuists, that there could be no valid marriage between the Actrix and the Defendent: ratione metus incussi & vis illatae, and particularly ratione raptus dureing the time which passed between the abduction and restitution to liberty. This done, I should immediatly proceed to declare his punishment, for his false and Calumnious jactitation of Marriage with the Actrix, but [Page 74]that I am necessitated to break through the ambush of some few doubts which lye in the way. The first is a supposal that the Actrix had given her consent to what was done, I answer, that the Raptor can never be admitted to the proof of such an allegation, but for better assurance of what I say, take the words of Pacianus de probationibus lib. 1. cap. 50. n. 30. p. 262. Raptor nou auditur probare volens puellam raptam spoute sibi Con­sensisse quando puella probavit violentiam.

I answer further, that were he admitted to such proof, nay could he make good proof thereof, it would not availe him in that behalf, for saith Navarr Consilio 2. de raptoribus ( p. 319.) decideing the Case between Iohn and Brancaleona on the one part, and the Father of Brancaleona of the other, consensus puellae ut raperetur, non sufficit. ut non dicatur rapta, quia ut dicatur talis sufficit ut contra voluntatem patris sit abstracta, siue id fiat de voluntate puelle siue Contra voluntatem ejus and the Doctrine of Thomas Aquinas 2.2. q. 154. Art. 7. justifieth this decision, you have also the same Case and the like decision together in Mar­tinus Azpilcueta titulo de raptoribus in these words Iohannes ra­puit Brancaleonam patri, ipsa tamen volente & consentiente cum qua contraxit matrimonium, postmodum mota lite a patre, fuit lata sententia contra dictos Iohannem & Brachaleonam it is also said there that rapiens non potest raptam ducere in uxorem nisi post quam separata fuit ab illo. It will be objected perhaps that the arguments which we offered in proof of her dissent and op­position to the pretended marriage viz. he [...] weeping and cry­ing are but fallible and might have been feigned, for we read in the ancient Annals of Ireland that Dearberguill the Daughter of Malaughlin King of Meath, and not his wife as Cambrensis mis­tooke it,) being for a long time enamour'd with Dermott Mac Murrough then King of Leinster, she sent him word by a privat messenger, that her husband King Tighearnan was then gon a [Page 75]Pilgrimage to St: Patricks Purgatorie, and that she desired him without any delay to come for her promiseing to become his wife, it appears also in the same Story that Dermott Mac Murrough did imbrace the motion and tooke hold of the opor­tunity which the absence of her husband gave him, yet notwith­standing her amours, her invitation of him and promises to come away with him without opposition, when he came for her she put on a seeming unwillingness, and to give the better Colour to her dissimulation, she struggled wept and cryed, as though she had never Consented to have Eloped with him; but that he had violently forced her away against her will and minde, so that the struggling weeping and crying of women are not alwaies certaine indications of their minde.

My answer to this objection shall be to shew the dissimilitude of both Cases, for in the Case of my Client, it is not so much as alledged, that she gave any incouragement unto, or was privie to the intention of the Defendent to take her away, Secondly, my Client afterwards made a protestation against the abductor, which the King of Meath's Daughter did not; if therefore that Queen had not invited Dermott Mac Murrough to that under­taking, or had she protested in forme of Law as my Client did, against it, her struggling weeping and crying might have been presumed to have been as unfeigned symptoms as my Clients were real arguments of her dissent.

If it should be alledged on the behalf of the Defendent that there is no full proof that he had Carnal knowledge of her, and that therefore the pretended Marriage doeth not appeare to be void ratione raptus to this objection I should make three answe [...]s, the first is that we have sufficiently proved the violent Compression of her, the 2. is that in case we had no direct proof thereof Fontanella saith, upon a general presumption of Law, rapta mulier vix a nullo creditur unquam integra exiisse a [Page 68]manu raptoris Clausula 5. where he instanceth de Helena & rapin ejus a Theseo, My third answer is, that Carnal knowledge is not necessary to the Consummation of a Rape, for it may be non intercedente Copula and therefore Carolus Mallettus saith delictum raptus in ipsa abductione consummatur, Malleatione. 57. p. 605. all which agrees with what I alleadged before out of Altisi­odorensis,

If it should be objected that Paulus that ancient and most learned Lawyer lib 2. sententiarum tit. 19. instanceth of some Marriages in case of Rape and thereupon saith matrimonia haec jure non contrahi, sed tamen contracta non solvi, i. e. such Mar­ages ought not to have been made, but being made they cannot be dissolved, for answer hereunto, I must distinguish inter legem perfectam & imperfectam. The imperfect Law is that which does not indeed rescind the fact done contrary to its prohibiti­on but inflicts a punishment upon the transgressour, such as was the lex furia testamentoria, and such as is the Law concern­ing forbidden Marriages against the Fathers will which are those mentioned by Paulus the Lawyer, and which by the Civil Law comes under the notion of a rape, now in this Case of Marrying without consent of the Father the Marriage must stand, and the Married must abide the punishment, they be­ing notwithstanding in the valuation of the Civil Law reckned as Concubines, and their Children Bastards, and there was neither Dowrie nor Marriage Portion allowed, so that though such Marriage was civilly null and made uncapable by that law of Civil benefits and advantages; yet it vvas not made naturally null, and Paulus gives an excellent reason for it in these vvords, contemplationem enim publicae utilitatis pri­vatorum commodis anteferri, for it is of publique Concern that marriages naturally valid be not rescinded, but it is of privat Commoditie and emolument that the Father should [Page 69]be pleased in the choyse of his Son in Lavv, but the instance out of Paulus concerns onely a marriage without the Fathers consent, but not against the consent of the ravisht Party, for such Marriage as I have already proved, comes under the other mem­ber of the Distinction viz. lex perfecta, which either in its self or at least by the ministry of the Magistrat, rescinds whatever was done against her prescript, and herewith agrees the Law non du­bium C. de legibus, where it is said nullum Contractum, inter eos videri volumus subsecutum, qui contrahunt, lege Contrahere prohi­bente, and furthermore the same Law denounceth ea quae lege fieri prohibentur, si fuerint facta, non solum inutilia sed pro infectis etiam habeantur, me thinks that Doctor French who hath spoken so much formerly should now, rather then say no­thing, desire the benefit of pro infectis habeantur which I shall allow him in as large a manner as the gloss will afford, which saith, maleficia contra legem faecta, haberi pro factis ad incommo­dum facientis, sed pro infectis ad commodum injuriam passae.

It may perhaps be objected further, that the Actrix hath lost the benefit of reclamation, for she ought to have commenced her suit immediatly data oportunitate recedendi, for qui vult se liberare ratione metus ab aliquo vinculo debet illo cessante statim reclamare according to that old and celebrated distich in the glosse,

To this objection the main force whereof (if any there be) lyeth in the words statim reclamare, I answer thus, that the word statim, though it be alwayes Confined to a short time, it doth not every where import an instant but admits of aliquod temporis interval­lum [Page 68] [...] [Page 69] [...] [Page 78]& tempormentum, ff de soluto matrimonio, l quod decimus. lib: 24. tit. 3. infor:) so that Lucas de Penna, on the Code de erogati­one militaris annonae. l. 5. ( lib: 12. tit. 37. saith that the word statim is sometimes extended adunum sometimes ad duos menses, within which time our suit was Comenced.

I confess that Skene in his exposition on that part of the Laws of Scotland which they call Regiam Majestatem, exposeth himself in these very words that the Complaint of a Rape should be made the same day and night in the quilk the Crime is commit­ted, quia lapsu diei hoc crimen perscribitur, Skene de verbo Rape and hence it is I believe that Spellman speaking of the Consuetudes or Statutes of Scotland saith si ultra unam noctem expectaverit rapta ad habendum concilium amicorum suorum ita quod recenter non faciat sequelam, & hoc probetur, Defendens id est Rapior quietus erit, I think we are more concern'd in the opinion of Fleta. lib. 3 cap. 5. & praeterea whose opinion it is, that conque­ri oportet foeminam cui illata est vis intra quadraginta dies, which termination of time as a good Antiquarie observes vvas derived from the Salique Lavv.

But to make a more direct ansvver to these tvvo instances, as for the Constitutions of Scotland, they have no bindeing force on us, vvho are govern'd by Lavvs of our ovvn, and as for that of Fleta, I think it is not applicable to our Case, but to an appeale of Rape at the Common Lavv, according to the first of Westminster the first and the 13. and the 3. Edward 1. vvhere vve read that any person may sue vvithin 40. dayes, but if not then, the King shall have Suit, furthermore the time of such appeal hath been inlarged in after times as appears by Stampford in the Pleas of the Crovvn, speaking of a shorter time antiently limited for prosecution of an appeal at the Common Lavv, vvho vvrites after this manner, tamen le ley nest issint prisa cest jour car si homme fait fresh suit, Comeni que il ne Comensa son apel. deni­on [Page 79]tres Ans apres uncore sera dit asses bon. i. e. The Lavv is not so taken at this time for if fresh suit be made, although an ap­peal be not Commenced within two or three years, it shall be good enough, wherefore to compare this case with ours, we say that she did not only Commence her suit so soon as she recover­de her selfe out of the amazment that this force brought upon her which could not have been done sooner; but also immedi­atly on the first night she came to Dublin, she made a protest in due forme of Law whereby she perpetuated her right both of action and exception, for annulling the Marriage for want of Consent which is apparent in the remarque of Antonius Genuen­sis p. 282. for there he saith Notandum praeterea protestationem puellae, multum removere Consensum, non obstante quod sit Con­traria facto, cum protestatio in his quae dependent a voluntate no­stra, removeat Consensum ab actu durante causa metus.

But let it be granted ex suprabundantia cansae that we were bound by the vvords of Fleta conquaeri oportet faeminam intra quadraginta dies, or that we vvere obliged by the Regiam Majest­atem of Scotland in these vvords. Si ultra unam noctem expectave­rit rapta ad habendum consilium amicorum as also in these vvords lapsu diei hoc crimen praescirbitur yet we have pursued the ri­gour of boath [...] for she not only Consulted vvith her friends thereof but also made a for­mall Complaint to the Magistrat, and had him thereupon Com­mitted to Prison the same night she came to Tovvn; vvhich vvas so short an interspace of time as came vvithin the strict confinement of a statim reclamare.

About the year 1 [...]2. there depended a cause of this nature between Simon Abrey and Alsoon Knight before one William Thunder official of Roger Cross Arch-deacon of Dublin, which by appeal was brought into judgment before Robert Waren then principal official of the Metropolitical Court of the Arch-Bishop [Page 80]of Dublin, it seems the official of the Arch-deacon though the Marriage between the said parties was contracted per vim & metum decreed them to Co-habit as man and wife, and this sentence was confirmed by the Arch-bishops principal official for which he gave the reason following, viz, quia dicta Alsona quam citò potuit ab eodem Simone non effugit sed cum eo aliquandiu permansit, but the said Alsoon upon this sentence pro­nounced, appeald from the Metropolitical Court at Dublin to the Primatiall Court at Armagh, when John Arch-bishop of Ar­magh delegated by special Commission James Leech one of the Canons of the Cathedral of Armagh to hear and determine the said cause of appeal, where having fully heard both parties at Termon Fechan, though he found that the said Alsoon had Co­habited with the said Symon for a moneth, and her parents were consenting thereunto; yet for as much as it appeared unto him that the Marriage was contracted per vim & metum, and that she made reclamation against the said marriage and fled from the said Simon, (as my Client did from the Defendent) so soon as she could, he voyded and nullified the sentence of the Arch-deacon of Dublin his Official, and of the Archbishop of Dublins principal Official, and decreed by his sentence definitive as follo­eth.

By these two sentences of the Arch-bishop of Armagh his delegat, and the Arch-bishop of Dublin his principall officiall though of a contrary tenor each to other it appears that the vim passa making that reclamation, and flying so soon as she could did enough to avoid a marriage contracted per vim & metum, they both agreed in point of law, that reclamation and flight quam cito potuit was sufficient to that effect, for Robert Waren the Arch-bishop of Dublins principal official being right­ly informed in point of law though mistaken as it seems in mat­ter of fact decrees thus, quia quam cito potuit ab eodem Simone non effugit sed cum eo aliquandiu permansit, igitur eandem Aliciam eidem Simoni fore compellendam adharere decernimus and again James Leech delegated in the same cause by the Arch-bishop of Armagh, being rightly informed as well in matter of fact as of law decreeth in manner following,

Quia invenimus per depositiones testium fide dignorum quod dicta Alsona seu Alicia quam citius potuit dicti Simonis comitivam effugit matrimonium igitur de facto & non de jure inter dictos Aliciam & Simonem contractum per vim & metum, quatenus de facto & non de jure processit cassamus irritamus & annullamus so that the Arch-bishop of Dublins principal official pronounced for the marriage, because he thought that the vim passa had not made reclamation nor fled so soon as she could, and the Arch-bishop of Armaghs delegat declared it no marriage because he was assured by good proofs, as you have been in this cause that [Page 83]the vim passa did make reclamation and flye from the Defendent so soon as she could quod erat probandum.

H [...] therto I have proceeded in reference to the fear and force that vvas upon her, vvhereby it appears as I humbly conceive that you ought in justice to pronounce sentence against him, non declarando irritandum dictum matrimonium, sed a principio irritum fuisse, for Panormitan holdeth in hujusmodi matrimoni­um non est opus quod petatun rescissio but this is not all, vve hum­bly expect and desire that the Raptor be also Excommunicated, for Excommunicationis paena Raptor una cum ei faventibus punitur cap. si quis virginem 36. q. 2. vvhich is the Constitution of Grego­ry the 2. in synodo Romana.

If it shall be objected that the Raptor is already Excommu­nicated and therefore is not to be Excommunicated againe in the same Cause for that it vvould be vain and void of effect, to this I ansvver, true it is, that the first Excomunication hath more effects then the second can have, yet the second is not vvithout its effect, for there are three effects of Excommuni­cation first a declaration of being separated from God, the second a separation from the communion of the faithfull, the third effect is a strict retention of the partie vvithout the com­munion of the Church, untill he be absolved, I confess that it is the third effect onely that is vvrought upon one ex­communicated the second time, so that though he should be absolved from the first Excommunication, yet he is to be barred the communion of the Church untill he obtain absolution from the second Excommunication, for it is true vvhat Panormitane saith de Iudaeis & sacracenis cap: ita quorundam ( p. 86.) ad primos duos effectus secunda exeommunicatio nihil operatur, sed quoad tertium, scilicet effectnus retinendi eum extra communienem donec fuerit absolotus, bene operatur, & idem dicendum est saith Panormitan detertia, quarta & nlteriori, vvhere it is apparent [Page 84]that he may be Excommunicated and that to good effect the second, third, fourth time or oftner, Againe there is a tvvo­fould Excommunication the one for a Contempt, the other pro­pter delictum, vel injuriam alicui illatam, the Defendent being Excommunicated already for his Contempt, may be absolved upon his appearance, submission and security given parere man­datis ecclesiae, but if he be once Excomunicated propter delictum he cannot obtaine absolution quousque parti laesae fuerit satisfa­ctum, untill the partie injured receive satisfaction. Wherefore in regard he may be legally Excommunicated the second time and that is most just he should I conceive vve have good reason to desire it.

Much might be spoken to the aggravation of this Crime vvere the severity of punishment my chiefest aime, yet I shall make use at present but of tvvo aggravations, the one is taken from the consideration of her being under the guard and tuition of her father, for in the booke of Ecclesiasticus Cap. 42. it is said filia patris abscondita est, vigilia & solieitudo ejus aufert son [...]num, ne forte in adolescentia sua adulter a efficiatur hereby it is easily observed, that that offence vvhich vvould have been noe more then fornication in a young Woman at her ovvn disposall is deemed adultery in her vvho is under the tuition of her Pa­rents, and the reason is very good, for it is founded in the simili­tude betvveen such a young Woman and a Wife, for even as a marryed Woman for as much as she is under the protection of her husband, and her body is her husbands, if she have to do vvith any other man in congressu carnis doeth by the injury hereby done unto her husband become an adulteress, so a vit­gin vvhilst she remaines in the povver of her Father and is his as to the Custody of her person, vvhen she yeelds though through fear her body to any man, injures him, and as Gasper Astete saith se puede llamar adultera may be called an adulteress [Page 85]as she is termed Eclesiasticus the 42 whence it is inferred by the Casuists, that, when she vvho is under the povver of her Father looseth her Virginity even in the Case of Rape; it is such a circumstance as must necessarily be mentioned in her Confes­sion, for that it changeth speciem peccati, and is a sin of inju­stice as vvell as of Luxurie, vvhereas a Virgin not being un­der the povver, of a Father but at her own dispose, if she loose her Maiden-head, although it be a sin of Luxury, the Doctors say it is no sin of injustice, noris it an offence to any other for so much as she is domina sui Corporis.

The other aggravation is so well expres'd in the words of the Poet Catullus that the recital of them in their Original, will be sufficient without prostitution to vulgar understandings.

There remains yet in arrear one branch of the Cause his jactitation of Marriage which in the opinion of Grotius Deserues as great a penalty as his other offence for in his annotations on the 22 Deuteronomy he saith diffamater par habetur inferenti vim virgini, andn owonder for the Rabins reckon Calumniators amongst. [...] that is to say amongst those who are not to see God in glory ( vid animadver: in Pirk p. 253)

This matter of diffamation is so clearly proved against him, and the Law is so evident in daily practize as to that point, that shall not so much abuse your patience and leasure, as to spend time and words in rendring it more evident, nor shall I desire more of your justice therein at present, then to pronounce him guilty of an unjust and temerary jactitation of Marriage with the actrix, to impose on him perpetual silence in that behalf, and lastly to Condemn him in all our expences, all which we hope and humbly desire that you will immediatly pronounce, for that we are confident the Case is so Cleer that it need not lye longer in the ballance of deliberation, and that whatsoe­ver I have said in this debate may be interpreted no other­wise then [...]

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