himselfe against any such matters. It being impossible for him to adduce probatione befor the assyse proceed to advyse and give their verdict, they being by the law oblidged ex incontinenti to proceed to the advyseing, but the pannall oppones his said defences against the relevancy, and noe man will pretend that witnesses are receiveable upon ane indytment soe irrelevant in itselfe. The pannall adhereing always to the forsaid defences against the relevancy of the lybell, and humbly intreating ante omnia your lordship's interloquitor in jure therupon, doth in the next place, ingeniously declaire befor Almighty God that he abhorres and trembles, to hear any such expressiones as these lybelled charged upon any Christian, farr more to have them laid to his own charge, neither will the pannall allow any of his lawyers either to palliat or extenuat the haynousness of the words lybelled in any sort, but doth simply and absolutely deny the same in every poynt and article thereof; and as he utterly abhorres the same, soe he will propone noe defence which may in the least seem to justifie or vindicat any such expressiones as these lybelled, and denys that ever such escaped him, and in caise that ever any of the expressiones lybelled did escape the pannall (which he absolutely denyes and abhorres) the same hes certainly bein when the pannall hes bein excessively drunk; and it is well knowen that men in drink and after cups are mad and furious, and the pannall humbly conceaves that if any such villanous expressiones when he was soe madly drunk have escaped him (which he absolutely denyes, detastes and abhorres) yet the same can never be sustained to inferr against the pannall the paines lybelled. Because, Primo, by the twenty first act parliament first king Charles the second, the punishment therin contained is only appointed to be inflicted upon persones not distracted in their witts, and if any such expressiones as are lybelled did ever escape the pannall, it is offered to be proven positively that the pannall was absolutely furious and distracted at that tyme. Soe that the forsaid act of parliament can never be extended against the pannall as to any expressiones uttered by him when he was madd and furious; as said is, and the other act of parliament lybelled upon, viz. the act sixteen hundred and nyntie five, appoints allenarly the third cryme to be capitall, and this is the first tyme that any such villainous cryme as this was charged upon the pannall, and consequently he can never be said to have incurred the certification therin contained. But the pannall doth utterly deny and perfectly detest and abborre all the villanous expressiones contained in the lybell. In this indytment, Kinnynmount is lykewayes accused for alleadged adultery with Jannet Nisbet, and the pannall baving alleadged that denying that pairt of the lybell, the act of parliament did militat only against nottour adultery, and nottour adultery could not be inferred from any of the qualifications lybelled; VOL. XIII. and my lord advocat having restricted his lybell to simple adultery, by offering to prove the pannalls frequent goeing to bed with the said Jannet Nisbet, the pannall did absolutely deny the same; and it was further alleadged for him, that albeit their goeing to bed togither, were proven (and which the pannall denyed) yet the same could never be sustained to inferr against the pannall the crymes and paines lybelled; unless carnall dealling were lykwayes proven, but the most that the same could amount to was a scandall, which is only proper to be remitted to the Kirk session, to be cognosced by them. In respect whereof, December 13, 1697. Intran' Patrick Kinnynmount, of that ilk. Indyted and accused for being guilty, actor, airt and pairt of severall murders, abuses, hamesuckens and insolencies, committed upon severall of his majesties leidges, conforme to his indytment recorded 11th of August last. Pursuers.-Sir James Stewart, bis maj'ts advocat; Sir Patrick Hume, his maj'ts sollicitor. Pro'rs in Defence.-Sir David Thoires; Mr. Thomas Skeine. The lords commissioners of justiciary, with consent of his majesties advocat, desert the dyet simpliciter against Kinnynmount, as to the haill crymes lybelled in the said indytment. The said Patrick Kinnynmount of that ilk, being also indyted for the cryme of adultery with Jannet Nisbet his servant, and for horrid blasphemy. The lords commissioners of justiciary, deserted the dyet off consent of his maj'ts sollicitor, as to the said article of adultery, simpliciter; and did proceed to give their Interloquitor upon the article of blasphemy, whereof the tenor followes : The lords commissioners of justiciary haying considered the indytment pursued at the instance of his majesties advocat, against Patrick Kinnynmount of that ilk, for the cryme of blasphemy (which is the only article now insysted in) with the debate therupon. They find the said indytment as it is restricted by his majesties advocat, to have bein committed in the four or fyve last moneths of sixteen hundred and nyntie six, or two or three first moneths of sixteen hundred and nyntie seven; relivant to inferr the paines lybelled, and finds the defence that the pannall was furious or distracted in his witts relivant in the termes of the act of parliament, but repells the alledgi ance of fury or distractione, aryseing from drunkness, and also repells the haill other defences proponed for the pannall, and remitts the poynts found relivant to the knowledge of the assize. Sic Subscribitur, J. FALCONAR, I. P. D. C. Efter pronouncing of the which interloquitor, my lord advocat consented to the deserting of the dyet, and accordingly the lords commissioners of justiciary deserted, and be thir presents deserts the dyet, as to the cryme of blasphemie simpliciter. Sic Subscribitur, 4 N J. FALCONAR, I. P. D. C. 409. The Proceedings in Parliament upon the Bill of Divorce between his Grace the Duke of NORFOLK and the Lady MARY MORDANT:* 12 WILLIAM III. A. D. 1700. PROCEEDINGS IN THE HOUSE OF LORDS. February 15, 1700. UPON reading the Petition of Henry duke of Norfolk, praying leave to bring in a bill to dissolve his marriage with the lady Mary Mordant, and to enable him to marry again, he having certain proof of his wife's living in adultery with sir John Germaine: it is ordered, that the said Petition be taken into consideration to-morrow. February 16. Read the first time, An Act to dissolve the duke of Norfolk's marriage with the lady Mary Mordant, and to enable him to marry again:' In the words following; 'Humbly sheweth, and complaineth to your 'most excellent majesty, your true and faithful lady Mary, as if she were naturally dead) with any other woman or women with whom he might lawfully marry in case the said lady Mary was not living: and, that such matrimony, when had and celebrated, shall be a good, just, and lawful marriage, and so shall be adjudged, deemed, and taken to all intents, 'constructions, and purposes; and, that all and every child and children, born in such matrimony, shall be deemed, adjudged, and 'taken to be born in lawful wedlock, and to be legitimate and inheritable, and shall inherit the said dukedom of Norfolk, office of earlmarshal of England, and all other earldoms, dignities, baronies, honours, and titles of honour, lands, tenements, and other hereditaments from and by their fathers, mothers, and other ancestors, in like manner and form as any other child or children born in lawful ma according to the course of inheritances used in this realm; and to have and enjoy all privileges, pre-eminencies, benefits, advantages, subject Henry duke of Norfolk, and earl-trimony shall or may inherit or be inheritable, 'marshal of England, That he did, some years since, marry the lady Mary Mordant, his now wife; and, that she hath, for divers years, lived in separation from the said sub-claims, and demands, as any other child or ject, and bath had unlawful familiarity and 'children born in lawful wedlock may have or 'adulterous conversation with sir John Ger-claim by the laws and customs of this king'maine, bart, and is guilty of adultery on her 6 dom. And be it further enacted, That the part, and hath broken the bond of matrimony.said Henry duke of Norfolk shall be entitled Forasmuch therefore, as your said subject 'bath no issue, nor can hope for any other than spurious issue to succeed him in his honours, dignities, and estate, unless the said 'marriage be declared void, and annulled by parliament, and your said subject be enabled to marry any other woman. May it please your most excellent majesty, out of your princely goodness and compassion to your 'said subject's misfortune and calamity, and 'for the future support and comfort of him'self and family, that it may be enacted: And be it enacted by the king's most excellent majesty, by and with the advice and consent "of the lords spiritual and temporal, and of the 'commons in this present parliament assembled, and by the authority of the same, that the 'said bond of matrimony being violated and broken by the manifest open adultery of the 'said lady Mary Mordant, be, and is hereby ' enacted, declared, and adjudged to be from henceforth wholly dissolved, annulled, va'cated, and made void to all intents, constructions, and purposes whatsoever: and, that it 'shall aud may be lawful to and for the said 'Henry duke of Norfolk, at any time or times hereafter, to contract matrimony, and to marry (as well in the life-time of the said * See vol. 12, p. 883 and 927, for two former Trials relating to this affair. to be tenant by courtesie of the lands and inheritance of such wife whom he shall hereafter marry; and such wife as he shall so marry shall be entitled to dower of the lands and tenements whereof the said Henry duke of Norfolk shall be seized of such estate whereof she shall be dowable, as any other husband or wife may or might claim, bave, or enjoy. And the child or children born in such marriage shall and may derive and 'make title by descent or otherwise to and from any of their ancestors, as any other child or children may do, any law, statute, restraint, prohibition, ordinance, canon, constitution, prescription, or custom had, made, exercised, or used to the contrary of the premises, or any of them, in any wise notwithstanding. And be it further enacted by the authority aforesaid, that the said lady Mary 'shall, and is hereby barred and excluded of and from all dower and thirds, and of and 'from all right and title of dower and thirds unto or out of any of the honours, manors, lands, or hereditaments of the said duke; and, that all conveyances, jointures, settlements, limitations, and creations of uses and trusts of, into, or out of any honours, manors, lands or hereditaments, at any time hereto'fore made by the said duke, or any of his ' ancestors or trustees, unto, or upon, or for the ' use or benefit of the said lady Mary, or any 6 of the other part, according to the true intent and meaning of the said Quinquepartite indenture and articles; and also, during the joint Jives of the said duke and duchess, shall and may enjoy 500l. per annum, by virtue of an ' indenture Quadrupartite, dated the 15th day ' of June, 1694, made, or mentioned to have 'been made, between the said duke of Norfolk ' of the first part, the said earl of Peterborow ' and the said duchess of the second part, William lord Lemster of the third part, and sir ‹ John Mordant, knight and baronet, and William Longueville, esq. of the fourth part. And then, and in such case, the said duke of 'Norfolk, his heirs, executors, and administra payment of the said sum of 10,000l. any thing herein contained to the contrary thereof in anywise notwithstanding. But on pay'ment of the said 10,000l. in manner aforesaid, 'she the said lady Mary shall be wholly barred ' and excluded from her said jointure, and of and 'from all other advantages out of the real and ' personal estate of the said duke, as aforesaid.’ Ordered, That the duchess of Norfolk may have a copy of the said bill; and that his grace the duke of Norfolk shall be heard by his counsel, to make good the allegations of his bill, on Tuesday next; and that the duchess may have counsel to attend at the same time, if she please. February 17. ⚫ the issue of her body, or for easing, discharging, or counter-securing any the manors, 'lands, or hereditaments of the said lady Mary, or any of her ancestors, shall be from hence⚫ forth, so far as concerns the said lady Mary, or any issue of her body, or any interest for ⚫her or them, utterly void and of none effect; and all and every the said honours, manors, 'lands, or hereditaments of the said duke, or any of his ancestors or trustees, shall from ⚫ henceforth remain, and be to and for the use ' and benefit of the said duke, and such other 'person or persons, and for such estates and in⚫terests, and in such manner and form as if the said lady Mary was now naturally dead without any issue of her body. And also,tors, is and are discharged of and from the ⚫ that all limitations and creations of any use, • estate, power, or trust, made by any of the ⚫ ancestors of the said lady Mary, unto or for ⚫ the use or benefit of the said duke, his heirs ⚫ or assigns, out of any the manors, lands, or ⚫ hereditaments of any the ancestors of the said lady Mary, shall be from henceforth void, and of none effect. And be it further enacted by the authority aforesaid, that the said duke of Norfolk, his heirs, executors, ‹ administrators, or assigns, shall, on or before ‹ the 25th day of March, 1701, pay, or cause <to be paid, unto the said lady Mary, or her ‹ assigns, the sum of 10,000l. of lawful money of England, which was the portion in money paid on 'her marriage with the said duke; < and on default of payment of the said sum of 10,000l. on or before the said 25th day of March, then, and in such case, she the said lady Mary, and her assigns, during her na<tural life from the decease of the said duke, if < she shall survive him, shall be entitled to, and shall and may have and enjoy such jointure and other advantages as she might or may ⚫ have or claim by virtue of a certain indenture, Quinquepartite, made upon and in considera❝tion of the said marriage, bearing date the 13th day of June, 1677, and made, or mentioned to have been made, between Henry late ‹ duke of Norfolk, then earl of Norwich, father ⚫ of the said duke, and the present duke, by ⚫ the name of Henry lord Howard of the first part; Henry earl of Peterborow and the said duchess, by the name of the lady Mary • Mordant, sole daughter and heir apparent of the said earl of Peterborow, of the second • part; Henry marquis of Worcester, William earl of Powis, and Henry lord O'Brian, of the third part; Arthur Onslow, esq. and • Thomas Dalmatroy, esq. of the fourth part; Simon Fox, esq. and Thomas West, gent. of the fifth part: And by virtue of the agree⚫ments contained in certain articles bearing date the 28th day of April, in the year of our Lord 1694, made, or mentioned to have been made, between the said duke of the one part, and the said Henry earl of Peterborow on be⚫half of the said duchess; and the said duchess Upon reading the Petition of Mary duchess of Norfolk, praying to be heard by her counsel before any further proceedings be made on the said bill, it is ordered that the duchess shall be heard by her counsel as desired, on Tuesday next. February 20. the duchess of Norfolk, as also counsel for the After hearing counsel, upon the Petition of duke of Norfolk, the following order was made: It is ordered, That this House will hear witof fact, since the rejecting of the first bill, exnesses for the duke of Norfolk, only to matter cept only Mr. Daniel Germaine, Mr. Simon Briane alias de Brienne, Mrs. Anna-Maria Briane or de Brienne, Mrs. Judith Possette or Persode, Mrs. Elianor Vaness, who are at liberty to give evidence to matters of fact before that time, which were not then before the House; and are hereby required to attend this House, as witnesses on the behalf of his grace the duke of Norfolk, to-morrow morning. Also, That to-morrow this House will proceed to hear counsel and witnesses for the duke of Norfolk, to make good the allegations in his bill; at which time the duchess of Norfolk's counsel shall be present. This clause was added after the bill was brought into the House of Lords. February 21. The counsel being called in, they for the duke having opened the nature of their evidence, Mrs. Elianor Vaness was sworn; and being asked some questions by the duke's counsel, she appeared to be a Dutch woman, and could not well understand English; and an in terpreter being offered by the duke's counsel, How did they live together during that time? Saw you them in bed together at any time, at that place in the Cockpit ?—Yes. How often?-Many times; as often as man and wife she saw them in bed, but did not put them in bed in those two months. Did you think any otherwise, but that they had been inan and wife?-She did not at first, but afterwards she did; and then they kept her within doors, for fear she should tell it. Whither did the duchess go after that two months ?-To Vauxhall. How long did she live there?-About two Then the following orders were made: viz. That the agents for the duke of Norfolk do forthwith deliver a list of the witnesses they intend to examine on the behalf of the duke to the duchess of Norfolk or her agents: That to-morrow this House will proceed to hear counsel and witnesses for the duke of Nor-years. folk, to make out the allegations in his bill; at which time the duchess of Norfolk's counsel shall be present. That Daniel Germaine, Simon Briane alias de Brienne, Anna-Maria Briane alias de Brienne, Judith Possette alias Persode, Goutaken, Pontack, Susannah Barrington, Hugonee, Mrs. Keemer, Joseph Berger, William Lane, John le Fountaine, Jonathan Browne, Hatter, Welburne do, and are hereby re and Did sir John Germaine use to come and keep company with the duchess there?—Yes; he used to come and dine with her sometimes; and he lay there sometimes. What conversation had sir John Germaine with the duchess at Vauxhall ?They conversed together as man and wife. How long? Sometimes one night, sometimes two. How often did he use to come thither?— quired, to attend this House to-morrow as wit-Sometimes twice, sometimes three times a nesses to be examined on the behalf of the duke week, and sometimes but once. of Norfolk. That William Allen and John Maitland do, and they are hereby required to attend this House, on service of this order, as witnesses to be examined on behalf of the duke of Norfolk. DEPOSITIONS OF ELIANOR VANESS. viz. Q. Do you know sir John Germaine and the duchess of Norfolk?-A. Yes. How long have you known them?-Two years. When did you first come acquainted with them?-Sir John Germaine's sister hired me for a cook-maid the summer after the king came for England. In what month of that year?-In May. Did you live with either of them as a servant maid?--I lived two months with my lady duchess, in sir John Germaine's house. How long did you live in the house with them?-Till they went to Vauxball. Had they one bed, or two?-But one. What name did the duchess go by at Vauxhall?-By the name of the lady Beckman. What kin was sir John Germaine pretended to be to the lady duchess?-Her brother: my lady duchess said so. Did you go with them to Vauxhall, or not? -She went with the lady duchess. Whose servant was you there?-Lady duchess's. How long did you serve the lady duchess? She staid with her till she went to Millbank. How came you to leave their service? They seut her away upon the account of the late trial. Who went with you?-Mrs. Susannah, chambermaid to the lady duchess; and Mr. Nicholas, that was gentleman to sir John Germaine. What is his name?-Nicholas Hosier. Whither was you ordered to go?-To Holland, to the Hague: they paid her in full, and promised fifty livres besides. How long was the duchess in the house before they went to Vauxhall ?-Two months. Where was that house?-Just over Spring-ther Philip, at the Hague. garden. Was any part of it paid? and by whom?She received it in four quarters, from his bro At the time when the lady duchess lived with sir John Germaine, what company and conversation did they keep with one another, and in what manner ?--Like man and wife. Where was it the lady duchess lived when you came first into Englaud?-In sir John Germaine's house. Where did she live then?-The duchess lived there then. How long continued she there?—About two months. Whose brother?-Sir John Germaine's brother. Who hired you when you came to England? What kin is she to sit John, Germaine?— His sister; and they promised, if matters, did not go for the duchess, she would come to Holland herself, and take her into her service again. Have you seen sir John Germaine and the duchess in bed together at Mill-bank?——Once or twice. How long had the lady duchess lived at Millbank ere you left her service?-Nine or ten weeks. How came you to see them in bed together? ---By reason none was suffered to come into the room, the bed-chamber, but she and another maid, to bring necessaries, as water to wash their hands, and to clean the room. Did you see them at their undressing, when they went to bed? She undressed them herself, and saw them in bed. Give an account how you two came to be admitted into the chamber, and what you saw there?-She helped them to bed, and saw them go to bed together. Saw you them next morning?—Yes. On what occasion came you into the chamber in the morning?-She came with chocolate, and water to wash their hands. Did yon ever see Mr. Nicholas Hosier there? -Yes; he did the business that she did when she could not be present; he was valet de chambre. Was be valet de chambre to sir John Germaine, or to the duchess ?—He belonged to the duchess at Vauxhall, and afterwards to sir John Germaine. Came he to sir John Germaine before the lady duchess went to Vauxhall, or not?-The duchess was at Vauxhall when he came to sir John Germaine. Who lived with the duchess at Vauxhall?Sir John Germaine's sister. Who hired you?-Mrs. Briane, Mr. Briane's wife. Was there no other relation of sir John Germaine's that lived there besides?-Mrs. Judith. What Mrs. Judith? What is her name?She does not know. What kin was Mrs. Judith to sir John Germaine?-His sister. Did the duchess use to go to no other place? -None but to the neighbouring gardens, to gather flowers. When you were at Mill-bank, did you ever see the duchess's father?-She hath been several times at the duchess's father's, and the lady duchess told her father and mother, that she brought her from Holland; she dressed three dishes of meat by order of the duchess. Who was the lady duchess's father? Where did he live?-He lived at Mill-bank, but could not tell his name; the lord Peterborough, she says, but could not think on it before now. When she lived with Germaine at the Cock pit, was there no other that lived with them at that time ?-Nobody. Did sir John Germaine's brother-in-law or sister lie in the house, at any time?—Yes; when they came first to England they used to lie there. -Name them?-Mr. Briane, and his wife. Did you see any of sir John Germaine's relations, at any time, in the room during the time that the duchess was in bed with him?Yes; Mr. Briane and his wife. Elianor Vaness cross-examined. Q. Was it at Vauxhall that the lady duchess said, that Germaine was her brother? A. Yes. Did the duchess tell you, that sir John Germaine was her brother?-She gave it out among the neighbours, but never told her so. Was you cookmaid?-She was hired for cookmaid. Did you continue to act as cookmaid?—Yes, at Vauxhall, Was you at the Cockpit ?-She used to clean the rooms, and nobody was suffered to come into the room but she, Mrs. Susannah, and Nicholas. Was there no other woman in the house but you?—Yes, Mrs. Susannah. Where did you see sir John Germaine and the duchess in bed ?-At Vauxhall. When came you from Holland?-About five or six weeks ago. Where have you been since?-She does not know no place nor street in London. How came you over?-About a year and half ago she met Nicholas at Amsterdam; she asked him how he did, and if he had got a place. He answered, No; but he believed he should very soon have one in England. Who sent for you, or brought you over from Holland this last time?-She met Mr. Nicholas about a year ago, and said, she had a great mind to go and live in England again; and he said, he would get a place for her. Who sent for her?-Does not know. When you came over, who paid your pas sage, and first took care of you?-Nicholas hath given her what she spent since. Who brought you to town? And who furnished you with money? And where did you land? What house did you first come to?She landed at Gravesend. Who received her there; or, when she came to town, brought her to any place to lodge at? -Nicholas brought her to a place where she was secure. What place is it?—She does not know, she never was in London. Did you not live at Vauxhall, and at sir John Germaine's house in the Cockpit?-She was no further than those houses; she means, she was never in the city of London. Where is the house she has been at these six weeks?-She cannot tell whereabouts it is. Was you not sent for back from Holland to be a witness?-No, knew nothing of it till about now about eight or nine weeks ago. In what street is the house you have been at?-1 cannot tell. How long is it since you went into Holland, since you left the duchess's service ?—About eight years ago. Did you never tell any body the occasion of your going over?-Yes, in Holland, but not here. To whom did you tell it?-To a great many. Know you any of those to be in England Was sir John Germaine in bed at that time that you did tell it to ?-Does not know any. with the duchess ?-Yes. |