My lord advocat having therafter insisted upon the horrid expressions lybelled and alleadged, that the same was simply capitall, without the necessity of adding, that the pannall did obstinately continue therin. therefore may have tyme and place more easily marked: Quarto, tyme and place make noe difference as to the cryme of blasphemie and the witnesses will condescend upon both when they depone. To all which it was replyed for the pannall, That the former defences stood unquestionably relevant notwithstanding of the saids answers, and as to which the common law and opinione of all lawyers is repeated and opponed, and as all pursuers in criminall lybells are oblidged to make their lybells relevant and to come paruti et instructi, soe incidiæ non sunt strucnde pro vita hominis: and what greater snair can be layd for the lyfe of a man than to sustaine such ane indytment as this, by which the pannall is absolutely precluded from his competent defences of Alibi, both as to himselfe and wit It was answered for the pannall, that he did not only deny the haill expressions lybelled, but utterly from his very soull and heart did detaste and abhorre the same, nor can the pannall be persuaded that ever any such expressions did escape him; and ingeniously declaires, that from his very heart he abhorrs to hear such expressions laid to the charge of any Christian; and if he were conscious to himselfe of any such guilt (as truely he is not) he would rather throw himselfe upon his inajestie's mercy, than offer to propone any defence ther against, but being conscious to himselfe of noe such guilt, and only apprehensive of de-nesses, and is also precluded from adducing bauched and suborned witnesses, his defence against the said indytment is shortly this, viz. That the said indytment as to the blasphemy Jybelled, is no wayes relevant, in respect it does not condescend upon the place where the expressiones lybelled are alleadged to have been uttered and spoken by the pannall, and all criminal lawyers that ever wrote doe unanimously agree in this, that in all criminall Jybells Locus delicti ought necessarily to be lybelled, because by and attour the common brocard, that dolus latet in generalibus, no criminall lybell ought to be sustained in capitali crimine, which is contryved of purpose to preclude the pannall from the benefite of any defence competent and allowed to him by law, such as alibi as to the pannall himselfe, or alibi as to one or more of the witnesses adduced against the pannell. 2. As this lybell doth not bear the locum delicti, soe neither doth it condescend upon any definite tyme, but allennarly beares the expressions lybelled to have bein spoken by the pannall upon one or other of the dayes of one or other of the moneths of one or other of the yeares ssixteen hundred and nyntie six and seven, which is in such generall termes, that it is truely admired how my lord advocat can contend or pretend that such a generall lybell as to the tyme either can or ought to be sustained before any court of the kingdome, farr less before such a soveraigne court where none but persones weill knowen in criminall lawes doe sitt as judges. And whereas my lord advocat in his informatione pretends that he oppones the lybell, bearing that the pannall used the saids expressiones frequently, at least upon one or other of the dayes of the saids two yeares: Secundo, that he is content to restrict his lybell to one or other of the dayes of the four last moneths of the year sixteen hundred and nyntie six, and three first moneths of the year sixteen hundred and ninety seven and Tertio, his lo'p pretends, that there is noe necessity to condescend upon tyme or place in the cryme of blasphemie as in other crymes of mutilatione or manslaughter, which leave visible effects, and other witnesses who might have bein present at the tyme, and might have clearly exculpat the pannall as to what the witnesses adduced against the pannall, (and who are all knowen to be persones most suspect) might happen to depone against him. Secundo, the pannall having subjected himselfe to a legall tryall, and ventured his lyfe upon the issue of this indyt ment, thor is in effect a judiciall transaction betwixt the pursuer (both as to the relevancy and probation) and the pannall, for he being informed by his lawyers that the said indyment was unquestionably irrelevant as not com descending upon the tyme and place, bath thereupon subjected himself to tryall by your lop's justice, and repeates and oppones his former defences as to tyme and piace against the rela vancy of the indytment; neither can my led advocat be allowed to alter, qualifie or restrict the indytment in prejudice of the panuall, bet the relevancy therof as it stands must be deter mined by your lop's interloquitor, in jure qu in criminalibus non licet vagari. Tertio, lin the crymes of murder and mutilatione, the tyme and place be necessary to be condescended upon (as my lord advocat himselfe acknow ledgeth) then multo magis ought the same to be condescended upon in the cry me of blasphemie, ubi non extat corpus delicti, nor any markt vestige of the cryme remaining, and noe diffe rence or reasone can be assigned why time and place ought not to be lybelled in the cryme f blasphemie as weell as in others. Quarto, the pannall hes ventured his life upon the issue of this lybell as it is lybelled, and repeates his former defences against the relevancie of the same. And as my lord advocat cannot be allowed to alter or qualifie the same from what is lybelled soe neither can his lo'p be allowed to qualify the same by depositiones of witnesses, because therby the pannall would be precluded not only from the benefite of your lop's predetermining the relevancy of the qualificationes to deponed upon, and soe run the hazard of suffer ing probatione to be led upon matters that p sibly in themselves are not relevant, but al to be precluded all possibility of exculpating 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 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 wit-proven (and which the pannall denyed) yet the nosses are receiveable upon ane indytment soe irrelevant in itselfe. of 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 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 weell 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 abborres) 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 abhorre all the villanous expressiones contained in the lybell. In this indytment, Kinnynmount is lykewayes accused for alleadged adultery with Jannet Nisbet, and the pannall having 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. same could never be sustained to inferr against the pannall the crymes aud 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 adul tery, simpliciter; and did proceed to give their Interloquitor upon the article of blasphemy, whereof the tenor followes : The lords commissioners of justiciary hav ing 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 alledgiance of fury or distractione, aryseing from drunkness, and also repells the hall other de; fences 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 interlo quitor, my lord advocat consented to the de serting 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. | lady Mary, as if she were naturally dead) February 15, 1700. 'with any other woman or women with whom he might lawfully marry in case the said lady UPON reading the Petition of Henry duke of Mary was not living: and, that such matriNorfolk, praying leave to bring in a bill to dis-mony, when had and celebrated, shall be a solve his marriage with the lady Mary Mor-good, just, and lawful marriage, and so shall dant, 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, be adjudged, deemed, and taken to all intents, constructions, and purposes; and, that all and every child and children, born in such that the said Petition be taken into considera-matrimony, shall be deemed, adjudged, and tion to-morrow. 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 al! other earldoms, dignities, baronies, honours, and titles of bonour, lands, tenements, and other heredita'ments from and by their fathers, mothers, and other ancestors, in like manner and form as any other child or children born in lawful ma Humbly sheweth, and complaineth to your 'most excellent majesty, your true and faithful 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, bis now wife; and, that she hath, for divers years, lived in separation from the said sub'ject, and hath had unlawful familiarity and adulterous conversation with sir John Ger'maine, bart. and is guilty of adultery on her 'part, and hath broken the bond of matrimony. Forasmuch therefore, as your said subject hath 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 himself 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 and 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. according to the course of inheritances used of the other part, according to the true intent and meaning of the said Quinquepartite indenture and articles; and also, during the joint ' lives 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'tors, is and are discharged of and from the 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 counTuesday next; and that the duchess may have sel, to make good the allegations of his bill, on counsel to attend at the same time, if she please. 'the issue of her body, or for easing, discharg ing, or counter-securing any the manors, ⚫lands, or hereditaments of the said lady Mary, or any of her ancestors, shall be from henceforth, 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 interests, and in such manner and form as if the said lady Mary was now naturally dead without any issue of her body. And also, 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 natural 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 consideration 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 behalf of the said duchess; and the said duchess This clause was added after the bill was brought into the House of Lords. 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 witnesses for the duke of Norfolk, only to matter cept only Mr. Daniel Germaine, Mr. Simon of fact, since the rejecting of the first bill, exBriane 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, counsel and witnesses for the duke of Norfolk, That to-morrow this House will proceed to hear which time the duchess of Norfolk's counsel to make good the allegations in his bill; at shall be present. 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, counsel withdrew, and the House agreed, that the duchess's counsel should have an interpreter also; and the counsel being called in again, were told so by order of the House, and that they might proceed to any other witness. The duke's counsel desired that they might begin with Mrs. Vaness, and withdrew. 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 man and wife?—She did not at first, but afterwards she did; and then they kept he 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 twe years. Did sir John Germaine use to come and keep company with the duchess there?—Yes; be used to come and dine with her sometimes; and he lay there sometimes. 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 Norfolk, 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 What conversation bad sir John Germaine Persode, Goutaken, Pontack, Susan- with the duchess at Vauxhall?--They co nah Barrington, Hugonee, Mrs. Keemer, versed together as man and wife. Joseph Berger, William Lane, John le Fountaine, Jonathan Browne, Hatter, aud Welburne do, and are hereby required, to attend this House to-morrow as witnesses to be examined on the behalf of the duke 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. Elianor Vaness sworn, deposeth as followeth, 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 Vauxhall. How long?-Sometimes one night, sonstimes two. How often did he use to come thither?Sometimes twice, sometimes three times > week, and sometimes but once. Had they one bed, or two?-But one. What name did the duchess go by at Vaur hall?-By the name of the lady Beckman. What kin was sir Johu Germaine pretended to be to the lady duchess ?-Her brother: my lady duchess said so. Did you go with them to Vauxhall, or net? -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 sent her away upon the account of the latt trial. Who went with you?-Mrs. Susannab, chambermaid to the lady duchess; and Mr. Nicholas, that was gentleman to sir John Ger maine. What is his name?-Nicholas Hosier. Who took care of your passage?-Nichals Hosier. Whither was you ordered to go?-To Hol land, 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 England ?-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 bro ther. Who hired you when you came to England? What kin is she to sir John Germaine?-His sister; and they promised, if matters dis not go for the duchess, she would come le 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. |