their plan of keeping the marriage secret. In the latter end of November in the same year, Mr. Hervey sailed for the Mediterranean, and returned in the month of January 1747, and stayed here till May in the same year. Mean while she continued to reside in Conduit-street, and he to visit her as usual, till some differences arose between them, which terminated in a downright quarrel; after which they never saw each other more. He continued abroad till December 1747, when be returned; but no intercourse, which can be traced, passed between them afterwards.

in the year 1747. The circumstances of that birth, the notice which people took of it, and the conversations which she held about that, and the death of the child, furnish part of the evidence that a matrimonial connection actually subsisted between them.

After having mentioned so often the secrecy with which the marriage and cohabitation were conducted, it seems needless to observe to your lordships, that the birth of a child was suppressed with equal care. That also made but an awkward part of the family and establishment of a maid of honor.

My lords, that which I call the second period, was in the year 1759. She had then

cording to the rites and ceremonies of the church of England.

"Le mariage dans l'ordre civil est une union légitime de l'homme et de la femme, pour avoir des enfans, pour les élever, et pour leur assurer les droits des propriétés, sous l'autorité de la loi. Afin de constater cette union, elle est accompagnée d'une cérémonie religieuse regardér par les uns comme un sacre. ment, par les autres comme une pratique du culte public; vraie logomachie, qui ne change rien à la chose. Il faut donc distinguer deux choses dans le mariage, le contrat civil ou l'engagement naturel, et le sacrement ou la cérémonie sacrée. Le mariage pourrait donc subsister avec tous les effets naturels et civils, independamment de la cérémonie religieuse. Les cérémonies même de l'Eglise ne sout de. venues nécessaires dans l'ordre civil que par ce que le magistrat les a adoptées. Il s'est même écoulé un long temps, sans que les ministres de la religion aient eu aucune part à la célébration des mariages. Du temps de Justinien le consentement des parties en présence de témoins, sans aucune cérémonie de l'Eglise, légitimoit encore le mariage parmi les chrétiens. C'est cet empereur qui fit, vers le milieu du sixième siècle, les premières lois pour que les prêtres intervinssent comme simples témoins, sans ordonner encore de bénédiction nuptiale. L'émpereur Léon, qui mourut" [qu. monta] "sur le trône en 886, semble être le premier, qui ait mis la cérémonie religieuse au rang des conditions nécessaires. La loi même qu'il fit atteste que c'était un nouvel établisse

ment.

"De l'idée juste que nous nous formons ainsi du mariage, il résulte d'abord que le bon ordre et la piété même rendent aujourd'hui nécessaires les formalités religieuses, adoptées dans toutes les communions chré- | -tiennes. Mais l'essence du mariage ne peut en être dénaturée; et cet engagement, qui est le principal dans la société, est et doit demeurer toujours soumis, dans l'ordre politique, à l'autorité du magistrat." Voltaire Dict. Philosoph. art. Droit Canonique, sect. 6.

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twelve years. But the infirm state of the late lord Bristol's health seemed to open the prospect of a rich succession, and an earldom. It was thought worth while, as nothing better had then offered, to be countess of Bristol; and for that purpose to adjust the proofs of her marriage.

Mr. Amis, the minister who had married them, was at Winchester, in a declining state of health. She appointed her cousin, Mr. Merrill, to meet her there on the 12th of February 1759; and by six in the morning she arrived at the Blue Boar inn, opposite Mr. Amis's house. She sent for his wife, and co nmunicated her business, which was to get a certificate from Mr. Amis of her marriage with Mr. Hervey. Mrs. Amis invited her to their house, and acquainted her husband with the occasion of her coming. He was ill a-bed; and desired her to come up. But nothing was done in the business of the certificate, till the arrival of Mr. Merrill, who brought a sheet of stamped paper to write it upon. They were still at a loss about the form, and sent for one Spearing, an attorney. Spearing thought that the merely making a certificate, and delivering it out in the manner which had been proposed, was not the best way of establishing the evidence which might be wanted. He therefore proposed, that a check-book (as he called it) should be bought; and the marriage be registered in the usual form, and in the presence of the prisoner. Somebody suggesting that it had been thought improper* she should be present at the making of the register, he desired she might be called; the purpose being perfectly fair, merely to state that in the form of a register, which many people knew to be true'; and which those persons of honour, then present, give no room to doubt. Accordingly his advice was taken, the book was bought, and the marriage was registered. The book was entitled, Marriages, Births, and Burials in the parish of Lainston. The first entry ran, The 22d of August, 1742, buried Mrs. Susannah Merrill, relict of John Merrill, esq. The next was, The 4th of August 1744, married the honourable Augustus Hervey, esq. to Miss Elizabeth Chudleigh, daughter of colonel

So in former edition.

Thomas Chudleigh, late of Chelsea College, deceased, in the parish church of Lainston, by me Thomas Amis. The prisoner was in great spirits. She thanked Mr. Amis, and told him, it might be a hundred thousand pounds in her way. She told Mrs. Amis all her secrets; of the child she had by Mr. Hervey; a fine boy, but it was dead; and how she borrowed 100l. of her aunt Hanmer to make baby clothes. It served the purpose of the hour to disclose these things. She sealed up the register, and left it with Mrs. Amis, in charge, upon her husband's death, to deliver it to Mr. Merrill. This happened in a few weeks after.

Mr. Kinchin, the present rector, succeeded to the living of Lainston; but the book remained in the possession of Mr. Merrill.

In the year 1764 Mrs. Hanmer died, and was buried at Lainston. A few days after, Mr. Merrill desired her burial might be registered. Mr. Kinchin did not know of any register which belonged to the parish; but Mr. Merrill produced the book which Mr. Amis had made; and taking it out of the sealed cover, in which it had remained till that time, shewed Kinchin the entry of the marriage, and bade him not mention it. Kinchin subjoined the third entry, Buried, December the 10th, 1764, Mrs. Ann Hanmer, relict of the late colonel William Hanmer: and delivered the book again to Mr. Merrill.

In the year 1767 Mr. Merrill died, Mr. Bathurst, who married his daughter, found this book among his papers; and taking it to be, what it purported, a parish register, delivered it to Mr. Kinchin accordingly. He has kept it as such ever since; and upon that occasion made the fourth entry, Buried, the 7th of February, 1767, John Merrill, esq.

The earl of Bristol recovered his health; and this register was forgotten, till a very different occasion arose for enquiry after it.

The third period to which I begged the attention of your lordships in the outset, was in the year 1768. Nine years had passed, since her former hopes of a great title and fortune had fallen to the ground. She had at length formed a plan to attain the same object another way. Mr. Hervey also had turned his thoughts to a more agreeable connection; and actually entered into a correspondence with the prisoner, for the purpose of setting aside a marriage so burdensome and hateful to both. The scheme he proposed was rather indelicate; not that afterwards executed, which could not sustain the eye of justice a moment; but a simpler method, founded in the truth of the case; that of obtaining a separation by sentence' a menså et thoro propter adulterium;' which might serve as the foundation of an act of parliament for an absolute divorce. He sent her a message to this effect, in terms sufficiently peremptory and rough, as your lordships will hear from the witness. Mrs. Cradock, the woman I have mentioned before as being Mrs. Haumer's servant, and present at the marriage, was then married to a servant of Mr. Hervey,

and lived in the prisoner's family with her husband. He bade her tell her mistress,' that he wanted a divorce; that he should call upon her (Cradock) to prove the marriage; and that the prisoner must supply such other evidence as might be necessary.'

This might have answered his purpose well enough; but her's required more reserve and management; and such a proceeding might have disappointed it. She therefore spurned at that part of the proposal; and refused in terms of high resentment,' to prove herself a whore.' On the 18th of August following she entered a caveat at Doctors Commons, to hinder any process passing under seal of the court, at the suit of Mr. Hervey, against her, in any matrimonial cause, without notice to her proctor.

What difficulties impeded the direct and obvious plan, or what inducement prevailed in favour of so different a measure, I cannot state to your lordships. But it has been already seen in a debate of many days, what kind of plan they substituted in place of the former.

In the Michaelmas session of the year 1768, she instituted a suit of jactitation of marriage in the common form. The answer was a cross libel, claiming the rights of marriage. But the claim was so shaped, and the evidence so applied, that success became utterly impracticable.

A grosser artifice, I believe, was never fabrigated. His libel stated the marriage, with many of its particulars; bat not too many. It was large in alleging all the indifferent circumstances which attended the courtship, contract, marriage ceremony, consummation, and cohabitation; but when it came to the facts themselves, it stated a secret courtship, and a contract, with the privity of Mrs. Hanmer alone, who was then dead. The marriage ceremony, which, in truth, was celebrated in the church at Lainston, was said to have been performed at Mr. Merrill's house, in the parish of Sparshot, by Mr. Amis, in the presence of Mrs. Hanmer and Mr. Mountenay, who were all three dead. Mrs. Cradock, whom but three months before he held out as a witness of the marriage, was dropped; and, to shut her out more perfectly, the consummation is said to bave passed without the privity or knowledge of any part of the family and servants of Mr. Merrill; meaning perhaps that Cradock was servant to Mrs. Hanmer. It was further insinuated, that the marriage was kept a secret, except from the persons before-mentioned.

To these articles the form of proceeding obliged her to put in a personal answer upou oath. She denies the previous contract; she evades the proposal of marriage, by stating that it was made to Mrs. Hanmer without her privity; not denying that it was afterwards communicated to her. The rest of the article, which contains a circumstantial allegation of the marriage, together with the time, place, witnesses, and so forth, she buries in the fornulary conclusion of every answer, by deny. ing the rest of the said pretended position or

people of fashion. To be sure, the preamble does not expressly prove the legislature to have foreseen or expected, that these would be the crimes of higher life, or nobler condition. But the act is framed to punish the crime, wherever it might occur; and the impartial temper of your justice, my lords, will not turn aside its course in respect to a noble criminal.

Nor does the guilt of so heinous a fraud seem to be extenuated, by referring to the advice of those by whose aid it was conducted, or to the confident opinion they entertained of the success of their project. I know this project was not (nor did I ever mean to contend it was) all her own. Particularly, in that fraudulent attempt upon public justice, it could not be so. But, my lords, that imparting a criminal purpose to the necessary instruments for carrying it into execution, extenuates the guilt of the author, is a conceit perfectly new in morality, and more than I can yield to. It rather implies aggravation, and the additional offence of corrupting these instruments. Not that I mean by this observation to palliate the guilt of such corrupt instruments. I think it may be fit, and exceedingly wholesome, 'to convey to Doctors Commons, that those among them, if any such there are, who, being acquainted with the whole extent of the prisoner's purpose, to furnish herself with the false appearance of a single woman in order to draw the duke into such a marriage, assisted her in executing any part of it, are far enough from being clear of the charge contained in this indictment. They are accessaries to her felony; and ought to answer for it accordingly. This is stating her case fairly. The crime was committed by her, and her accomplices. All had their share in the perpetration of the crime: each is stained with the whole of the guilt.

My lords, I proceed to examine the witnesses. The nature of the case shuts out all contradiction or impeachment of testimony. It will be necessary for your lordships to pronounce that opinion and judgment, which so plain a case will demand.

Sol. Gen. My lords, we will now proceed to call our witnesses.-Call Ann Cradock.

(Who came to the bar, and one of the clerks held the book to her, upon which she laid her hand.)

Cl. of the Cr. Hearken to your oath.The evidence that you shall give on behalf of our sovereign lord the king's majesty,

inform your lordships whether she has not had a security for some provision, or benefit, or a promise, in consequence of the evidence she is to give on this indictment ?-Cradock. No. Examined by Mr. Solicitor General.

How long have you been acquainted with the lady at the bar?-Above 32 years.

Where did you first become acquainted with her?-I saw the lady first in London, afterwards at Lainston.

What occasion carried you to the lady at Lainston ?-Along with a lady that I served. Name the lady.—Mrs. Hanmer.

Was Mrs. Hanmer any relation to the lady at the bar ?-Her own aunt.

Was the lady at the bar at Lainston along with Mrs. Hanmer?-Not when I first went down to Lainston.

Did she come down there afterwards?Yes.

Do you remember seeing Mr. Augustas Hervey there at that time?-I remember seeing Mr. Augustus Hervey there, but not at the time I first saw the lady there.

in

When did Mr. Hervey come there?—It was June, at the Winchester races.

How long did he stay there at that time?cannot particularly say how long he might stay: he was coming and going.

I

Were you in Lainston church with Mr. Hervey and that lady, at any time in that summer ?—I was.

At what time of the day?-It was towards night: it was at night, not in the day.

Upon what occasion?-To see the marriage. Name the persons who were present.-Mr. Merrill, Mrs. Hanmer, Mr. Mountenay, Mr. Hervey, Miss Chudleigh, and myself.

Who was the clergyman?-Mr. Amis, who belonged to the church.

Were they married there ?-Yes; I saw them married.

Was the marriage kept secret?—Yes. By what ceremony was the marriage?By the matrimonial ceremony; by the Common Prayer Book.

Were you employed to take care, that the other servants should be out of the way?Yes.

Did they return to Mr. Merrill's house after the marriage ?-Yes, they did.

How far is the church from the house?it is in the garden. Not a great distance, but I cannot say how far:

Did Mr. Amis return with the party into the

Lords. Aye, aye.