*

these small circumstances, because they happen to be recollected by the witness.

The marriage was consummated the same night; and he lay with her two or three nights following; after which he was obliged to re

"Marriage is to be betwixt one man and one woman only, and they, such as are not within the degrees of Consanguinity or Affinity prohibited by the Word of God. And the parties are to be of years of discretion, fit to make their own choice, or upon good grounds to give their mutual consent.

"Before the solemnizing of Marriage between any Persons, their purpose of Marriage shall be published by the Minister three several Sabbath dayes in the Congregation, at the place or places of their most usual and constant abode respectively. And of this Publication, the Minister who is to joyn them in Marriage, shall have sufficient Testimony, before he proceed to solemnize the Marriage.

"Before that Publication of such their purpose (if the parties be under age) the consent of the Parents, or others, under whose power they are (in case the Parents be dead) is to be made known to the Church-officers of that Congregation, to be Recorded.

"The like is to be observed in the proceedings of all others, although of age, whose Parents are living, for their first marriage. And in after marriages of either of those parties, they shall be exhorted not to contract marriage, without first acquainting their parents with it, (if with conveniency it may be done) endeavouring to obtain their consent.

"Parents ought not to force their children to marry without their free consent, nor deny their own consent without just cause.

"After the purpose or contract of marriage hath been thus published, the marriage is not to be long deferred. Therefore the Minister, having bad convenient warning, and nothing being objected to hinder it, is publikely to solemnize it in the place appointed by Authority for publique Worship, before a competent number of credible witnessess, at some convenient hour of the day, at any time of the year, except on a day of publique Humiliation. we advise that it be not on the Lord's day. "And because all relations are sanctified by the Word and Prayer, the Minister is to pray for a blessing upon them to this effect:

And

"Acknowledging our sins, whereby we have made ourselves less than the least of all ⚫ the mercies of God, and provok'd him to imbitter all our comforts earnestly in the name of Christ to intreat the Lord (whose presence and favour is the happiness of every condition, ' and sweetens every relation) to be their portion, and to own and accept them in Christ, who are now to be joyned in the Honourable 'estate of Marriage, the Covenant of their God. And that as he hath brought them together by his Providence, he would sanctifie them ⚫ Sɔ in Scobell.

6

turn to his ship, which had received sailing orders.

Miss Chudleigh went back, as had been agreed, to her station of maid of honour in the family of the princess dowager. Mr. Hervey

by his Spirit, giving them a new frame of 'heart fit for their new estate; enriching them with all Graces, whereby they may perform 'the duties, enjoy the comforts, undergo the cares, and resist the temptations which accompany that condition, as becometh Chris'tians.'

"The prayer being ended, it is convenient that the Minister do briefly declare unto them out of the Scripture,

"The Institution, Use, and ends of Mar'riage, with the Conjugal duties which in all 'faithfulness they are to perform each to other, exhorting them to study the holy Word of God that they may learn to live by Faith, and to be content in the midst of all Marriage 'cares and troubles, sanctifying God's name in 'a thankfull, sober, and holy use of all Conjugal comforts, praying much with and for one another, watching over and provoking each other to love and good works, and to live together as the heirs of the Grace of life.'

"After solemn charging of the persons to be married, before the great God, who searcheth all hearts, and to whom they must give a strict account at the last day, that if either of them know any cause, by præcontract or otherwise, why they may not lawfully proceed to marriage, that they now discover it: the minister (if no impediment be acknowledged) shall cause, first, the man to take the woman by the right hand, saying these words:

"IN. do take thee N. to be my married wife, and do, in the presence of God, and 'before this congregation, promise and covenant to be a loving and faithfull husband unto 'thee, untill God shall separate us by death.' "Then the woman shall take the man by his right hand, and say these words;

"I N. do take thee N. to be my married husband, and I do, in the presence of God, ' and before this congregation, promise and 'covenant to be a loving, faithfull, and obe'dient wife unto thee, untill God shall separate us by death.'

"Then without any farther Ceremony, the Minister shall in the face of the Congregation, pronounce them to be Husband and Wife, ac cording to God's Ordinance; and so conclude the action with Prayer to this effect; "That the Lord would be pleased to accompany his own Ordinance with his blessing, beseeching him to enrich the persons now married, as with other pledges of bis love, so particularly with the comforts and 'fruits of marriage, to the praise of his abundant mercy, in and through Christ Jesus,'

"A Register is to be carefully kept, wherein the names of the parties so married, with the time of their marriage, are forthwith to be fairly Recorded in a Book prepared for that pur

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 he returned; but no intercourse, which can be traced, passed between them afterwards.

This general account is all I am able to give your lordships of the intercourse between Mr. Hervey and his wife. The cause of the displeasure which separated them, is immaterial to be enlarged upon. The fruit of their intercourse was a son, born at Chelsea, some time

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 sacrement, 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 devenues 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 Je 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'empereur 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 aujour d'hui nécessaires les formalités religieuses, adoptées dans toutes les communions chrétiennes. 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.

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 pe riod, was in the year 1759. She had then lived at a distance from her husband near 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 regis tered 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. 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

The first entry

* 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 ber 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 1007. 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. Kiuchin, 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 men⚫ så 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. Hanmer's servant, and present at the inarriage, 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 be 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 bave 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 fabricated. His libel stated the marriage, with many of its particulars; but not too many. It was large in alleging all the indifferent circumstances which attended the courtship, coutract, 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 have 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 upon 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 formulary conclusion of every answer, by deny, ing the rest of the said pretended position or