THE CASE OF WARE and SHIRLEY As it was set forth in matter of FACT And argued in several points of LAW in the Consistory of Dublin, in Michaelmas Term 1668.  
BY Dudley Loftus, J. U. D.  
●●blin, Printed by Benjamin took, Printer to the Kings most Excellent Majesty, and are to be sold by Samuel Dancer, in Castle-street, 1669.   

SIR.  
WE have with a most strict regard observed all requisits, even to the least Circumstance of our duty, in prosecuting the Contumacy of the Defendant in this Cause, so fair, as right practice, and the known rules of proceed 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 Penitential 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 sense 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 speak in his behalf, for were he strengthened with the patronage of the best Advocates in the World, and assisted with all other advantages which usually make Victory hopeful, 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 any advantage of prosecution, hitherto, or hereafter to be taken against him, unless it be, by the burden of his own Crimes, nor shall I take the freedom 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 than the just dimensions of Truth, which I have always esteemed as the Rubrics of the Missal, whereunto as the Ritualists observe, it is more dangerous to add then to omit any part thereof, nor shall I describe it in the imagery of an Orator, 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 Ears of the learned, with refined subtleties of Law and Scholastic discourses my chiefest aim being rather to satisfy the bench in a sh●rt Discourse, than the Curiosity of the standers-by in an unnecessary profusion of words, for I am of the Arabian Authors Minds who: saith there is no benefit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 etc. 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 engagement 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 affairs, but things so horrid and dreadful to human ears, that I have not any exaggeration of words great enough to express their Exorbitancy, 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 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 remark, a crime above the rest so heinously flagitious, that the very name thereof, carries to every man's understanding such a notion of horror, as it requires as much faith in the Hearers to believe it, as it did wickedness in the offenders who perpetrated it, the relation whereof may perhaps wring Tears out of those pale faced and obdurate walls, put the Bench into a Swett, make the Bar to groan, bind up the senses of the standers-by in the Stupidity of a dull amazement, and transport myself to the utmost bounds of a sober passion whilst I in the recital find an unaccustomd horror, entering into the Marrow of my shivering Bones, & unusual resentments invadeing every part of my soul. I shall say no more in General to excite your attention, but betake myself to the narratio facti, wherein I am to set forth not only the fraud and violence which the Defendant used against the Plaintiff in a most Prodigious rape, but also the impudence of his Calumny in the jactitation of Marriage with her which I shall 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 recital 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 on the persons for the Disparity of their Condition will be of force not only to show 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 Can rake out of the foulest Channels of Hell, none could be greater or sharper in her esteem, and therefore the Lacedaemonian, who in Commending his Sword said it was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sharper than Calumny, if he had ever experimented so sharp a Calumny as this would not have made that Comparison. Whilst I speak of the Defendant, I shall endeavour to Imitate Johannes Mylaeus a famous jurisconsult 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 subsidy books, nor do I think that my Client in the choice of a Husband will tie herself so strictly to the rule of Logic as to hold that â quantitate res dicuntur pares aut impares, we shall therefore allow his Patrimony better than his Education or birth, which as reports inform 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 only as an imposthume ready to burst with a tumid Plethorie of self Conceit, but as a Monster possessed 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 reins of restraint, until at last 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 scorned to subject his Appetite to the Yoke of reason, or to confine himself within the bounds of Moderation, for rustica gens nescit habere modum, he than knows not how to measure the height of his Fortune; but by a Precipice, and so becomes the Engineer of his own Misfortunes, as being neither wise in the Choice of his purposes, not prudent in the use of means, nor happy in the employment of Instruments he sets on work for the Acchieument of his designs. In his Conversation he hath showed himself so frentless a a plece of Impudence that shamerfaceness never cast her Veil on his Forehead; And so little remorse of Conscience possesseth his Soul that no sin seems to trouble him which he can Vaile or Mask from human perception. And such hath been the lowness of his mind that the hope of Interest did prevail more with him then the horror 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 Compliance with other men's humours, a crooked deformity from his own, He was often subject to wrathful discomposures of mind and frequently hurried by the giddy and rapid Violence of his passions to such a pass; as that he could neither speak sense nor hearken unto reason; Whilst he Evapourated the heat of his inflamed Bowels, he was of so obdurate an heart that you might as soon Pump water out of the hardest Rocks or dissolve them into streaming Fountains, as draw a Tear of Compassion or sorrow from him, for he esteemed the bitterest Tears of oppressed Women but as the fluid drops of a sickly rheum; Again such was his disposition that he was apt out of stomachful hatred and revenge to Vomit out spiteful untruths, and to brand 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 only Arguments he used to invite Consent, seeking ratherby the insolency of a rude Carriage and peremptory menaces to Vex Women to a Compliance then by soft persuasions or the Courtship of fair 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 affairs, I might perhaps tell him that his Horoscope hath cast so Ghastly a Glance upon his Nativity as doth portend a direful event, & would if published to his notice like the Fumes of Mercury and Orpiment loosen his joints to tremble 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 Defendant is rather cross to my Natural Inclination than a digression: for to speak to any man's prejudice agrees no otherwise with me then as Motion to light or heavy 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 Concourse of people took the advantage of so many Witnesses to show you how little probability there is, that any Woman should Consent to marry with a man so dangerously qualified, especially my Client, 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 parallel Lines together as to conjoin these two in Marriage, for every one knows that a Judicious woman may be resembled to our sense which as St. Thomas observes delectatur rebus debite Proportionatis and that it is in Marriage as it is in Music 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 Music, than the Jonick and Doric, which agrees with justitia Condecentiae mentioned in the Schoolmen which tunes up the hearts of Married people to a Melodious unisone; I am now to draw the other line of the parallel 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 Ancestors, levelly her Affections to the meanness of his despised bed, which cannot be made Jsoperimetricall to her quality, and that they were no more likely to agree in a marital State, than Contraries can be Lodged together in their most intent degrees; nor more likely to be Conjoined in affections then the literae Illegabiles in the Persian writings. To speak of her Birth and with my words to Magnify her in remembrance of the many Virtues and honours which have shined with great Brightness as well in her Mothers as in her Father's family would be to no more purpose then to show light to the Sun, or to breath on a perfect Diamond, and to speak of her fortune would be to publish that, which is already well known; Therefore I shall transfer myself from that Consideration of dissimilitude between them, unto her Education and Personal endowments, She had her Education altogether under her Mother who was not only a great pattern of Virtue and Modesty, but a severe instructor of her in the rudiments of Religion the rules of Morality and all principles of Virtue and Honour, under whose Discipline 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 Female Sex, wherefore she hath been so well fixed by Education in the centre of a  resolution, that she could never be drawn (by persuasions or any other moral inducements of delight commodity or advancement that the World could suggest unto her) to Yield to the bent of any exorbitant Lust or Immodest desire, and since the death of her Good Mother, she hath always professed that she never thought her will could be carried in its proper Orb, but when it was placed in the good liking of her nearest Relations and discreetest Friends, according to whose precepts and Admonitions she endeavoured strictly to conform her deportment in all things, she is not therefore like the young Women of St. Frianos' Gate in Florence, nor was she when the Defendant 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 only 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 Ermine which had rather expose its self to the hazard of Death by the Hunter's Violence, then seek the preservation of life in the ways of defilement; So much of her Education in Virtue and modesty, which gives her a large claim 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 splendour of Eloquence. In the first place she having been instructed that an Estate without Virtue and merit is but a Testimony of good Fortune and no Advancement to felicity, she hath not only endeavoured to keep herself by a Modest retirement out of the bad Customs which over whelmed this Age, but also hath Laboured the exornation of herself, with all qualities belonging to a Gentlewoman; So that to speak Negatively of her per remotionem imperfectionis, she is not blinded with passion nor puffed up with Pride, nor precipitated by ambition, nor tickled by vain glory, nor melted by pleasures, nor inflamed by Lusts, nor enraged with revenge, nor turmoiled by Ambition; And again to describe her positively, for the comeliness of her Statute, Figure, Port, Gate, Complexion, Countenance, Promptness of what, 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 endowments, 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 tolerable 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 Defendant 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 crowned 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 world's duration she would never have consented to the Fetters of his embraces.  
I am now nearer approaching to the thing in hand, and am in the first place to reduce into a succinct and Methodical Narrative the beginning progress & conclusion of the whole matter of Fact, as well for the information of the Court; as to satisfy 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 subtle a Theory of Poison, lest he should thereby give occasion for the too ready practice thereof, So I dare not be too particular in relating the many subtleties and contrivances which the Defendant used in this affair, least bad inclinations in others may be too fully instructed to act the like evils, If I should afford them too broad an inspection extended to all circumstances, the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And my first rise is, that the Defendant forgetting the aforementioned disparity between him and my Client grew up to so high a conceit of himself, as that he presumed to make addresses to her in the way of Marriage, which he seemed 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 herself, and finding nothing in him that might fit him for her acceptance, she immediately desired him to discharge his mind of such vain hopes, and afterwards he renewing his motion to the same purpose, she repelled 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 withal assureing him that it was as easy to blow Flint into flames with a pair 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 noise of Peacocks, 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 nonconformist a Surplice, she feared him as a Monster and avoided him as the Plague; Accounting his company as pestilential as the infectious exhalations of the Dog's star, or the Malign 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 Dunghills become Comets of a direful influence: hereupon the Defendant finding that the more he reinforced his attempts the more she stiffened 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 despair, and that there did not remain in her disposition the least compliant 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 sharpened his revenge as a Persian Author saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on the Whetstone of his petrified heart, and put himself upon a design as Barbarous and heinous 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 washed 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 sense the Defendant 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 suffered, are not to be compared with the Violation of Virginity) first of all therefore by a sly and crafty insinuation, he winds himself into a familiar, though secret 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 mere shop of subtleties, a practised 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 Mistress, and draws her so far along with him, as that she had at length not only a finger in his Plot, but was also engaged therein up to the Elbows; 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 ray of Vision falls upon the Extension, according to the definition 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 importunate invitation from her sister to sup at her house in New-street, as a Screen 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 persuasion she condescended 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 suspicion, she was entertained until 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 herself to her Coach, which being put into motion (as she thought homeward) she fell occasionally into earnestness of discourse with her Maid, which together with the darkness of the night so surprised her animadvertency of the way, that she never doubted whether she was going, until at last, hearing some noise 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 Squadrens 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 Coachman intimating their intent on to carry her away by force besides this she observed then in the Carriage of her Maid more than ordinary cause to suspect her fidelity, and moreover the appearance of the Defendant who at the same time flashed terror out of the angry Caverns of his Pumified face, cast the greatest injections of horror into her terrified fancy: hereupon cold fear seized the blood in her veins, and huddled 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 sense thereof with a moderate, Woe is me! she according to the sharpness of her Resentments cried 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 noises they could make, lest her complaints being understood, she should be rescued. I leave you therefore to imagine 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 imagined forms of futurein creasing troubles, whilst they with their Menacing incitations adding speed unto the Coachman's pace, every step of her rapid progress represented new horrors 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 Country; And there being then, no hope of escape to any Sanctuary, she being guarded as strictly by these Ruffians as was the Holy Sepulchre by the pharisees: She was transported out of her senses into a deep soon, but shortly after returning out of that Ecstasy, she Meditated deeply with her new recollected senses, which advised her to fortify 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 persuasions, hoping thereby to alter the by as of their rigid Inclinations into a Compassionate sense of her sufferings, and certainly had not their consciences been seared with the hottest Iron in the Devil's forge they would have been touched with a sense 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 prevailed, were applied as water cast upon a Smith's forge, which makes it burn inward with more intention for a time, but afterwards 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 unmerciful courage, force the Coachman 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 Defendant, but much more unhappy in wanting light how to avoid him, she than attempts the throwing of herself 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 been of the Hyadeses 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 cries aloud for help from the Country, until at last in the swift course of so great a violence she was drawn beyond the conduct of her own inclinations, so far almost as the Bridge of Donogh-brook, where they forced her out of the Coach with intent to put her behind one of the Horsemen, 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 herself 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 relics 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 herself into the deep and miry Highway where she remained so long kneeling in the mire as if her knees had been rooted in that posture, and struggled with them in that place, even to the Laceration and tearing of her  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 affrighted 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 Defendant, sed sola erat in agro, Clamavit, & nullus affuit qui liberaret eam, at length they persuaded her to a belief of that which they confirmed with many oaths, which was their promise to bring her immediately to Dublin in case she would afterwards permit the Defendant to address himself unto her, and she being then tired 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 clearly that all promises though confirmed by oath stood for Ciphers in their accounts, for she was immediately tied 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 disturbed imagination stopped 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 highways as Heralds do in Italy, bring her through the solitudes of a Country so ruinous and desolate, so void of enclosures and habitations and so unfrequented that the highways 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 Stars: 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 sense and motion to carry her into the house, so that they rather out of necessity than an officious civility carried her into that dismal Pagliarella or Cottage, where, as before● every step of her wand'ring 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 encountered with necessities as well as force, and inward perplexities of mind, as well as outward inconveniencies of body, in relation whereof I shall be brief, lest they prove as troublesome to you as they were grievous 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 tired auditory, for they are indeed much like the Cloisters 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 afflicted 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 total disfurnishment of all accommodations 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 herself on, but also she was Molested with terrors of death and other horrible affrightments, but these were nothing in respect, of what she first suspected in the agitation of her mind 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 losing it transfixed her heart, but what was worst of all is yet to be spoken off whereunto I shall descend by degrees, hoping that you will pardon my Language, if it chance to be sullied in the representation of so foul a fact for as it will not become me to adulterate truth in the description of a rape; so I must not Mutilat my Client's 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, Noah, 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 observes, auctores melius exprimunt per vocem non significativam quam per vocem significativam, at the first entrance into the house she found the now Defendant in a feverish fervour of mind, as sullen as a Bull-finch, and as surly as a Lion, 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 unchaste embraces, whereby she feared, that he having gone so far, would not find rest but in extremes, therefore 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 ravished, and being as fearful that her weakened body had not sufficient power to resist, as she was assured she had not patience to endure the dishonour of a rape, she resolved to be her own Executioner, choosing rather to cast herself 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 assigned unto her for her bed, a Sword, with intention either to destroy him or herself in case he should dangerously attemmpt her Chastity.  
Observe I beseech you, Joseph did leave his cloak behind him (in a strumpet's hand, rather than he would yield to her lewd enticements, Lucretia suffered Ravishment, and afterwards became her own Executioner, but this grand exemplar and sublime pattern 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 far exceed Lucretia the wonder of Roman Chastity, that she did not only 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 disgraceful Succubition and Compression, I am not willing to arrest your attention with any long discourse foreign to a bare Narrative of the matter of Fact, yet before I proceed further therein I shall beg leave to interpose a short parenthesis in justification of the Lady's intention in particular, and of their practice who have hastened their own death, to prevent the intolerable disgrace of Ravishment, hoping 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 Tailor 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, 
Mortisque timorem,  
Morte fugant ultroque vocant venientia fata.  and making use of these words of St. Chrisostome to leap into the Sea for fear of Ship wrack, and to die 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 leapt into a precipice. I know also that St. Hierome on these words, Ionas. i Mittile me in Mare expresseth himself thus much in favour of that learned Bishop's 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 imposed by others, and therefore in persecutions we must not die by our own hands, so much St. Hierome in defence of the Bishop.  
I cannot justify the Lady's intention but in opposing the Bishop's opinion, and by answering the allegation of St. Hierome, which seems in the sound of words to make so much for him.  
To answer therefore the allegation out of St. Hierome is a thing that will easily be done, for the limitation of his words by an exceptive clause immediately subjoined to what is alleged, viz, non licet propria perire manu running in these precise terms viz, absque eo ubi Castitas periclitatur, brings St. Hierome to my side, and declares him opposite to the Bishop, and therefore if the judgement of that ancient and most learned Father, be as weighty 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 weigh down the same with 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 straits have hastened 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 lose his Chastity, fears more justly than he who fears the loss of life.  
As for precedents I shall not being into example those who for less causes hastened 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 Wheel wherewith he was drawn; nor Samson Saul or Razis● who are usually alleged as common Vouchers to prove that a man may hasten his own death.  
Be pleased to recall into your Memory that which Bishop Tailor if he were alive could not deny; That when 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 with blood and Lust, a great many of the Citizens then running to the Castle, blew up themselves with their Wives and Children to prevent those horrors and flames of lust, which they abhorred more than death.  
I am sure you cannot forget the example of Pelagia mentioned by St. chrysostom, which comes home to our case. Pelagia virgo quindecim annos nata sponte sibi necem maturavit, parata quidem ●rat ad Cruciatus tormentaque & omne suppliciorum genus perferendum, sed metuebat ne virgininatis Coronam perderet, i. e. She being a Virgin of fifteen years of age, of her own accord she hastened death to herself, she was indeed ready to have suffered all sorts of most exquisite Torments, but she would not lose the Crown 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 lawful and according to good examples, but a so just and very commendable from the further discourse of St. chrysostom 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 snatched herself, 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 shown 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 lie, or the prevaricateing with a sullen truth, to save a a man's 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 now justly tell you that her intention had undoubtedly succeeded in execution had not her treacherous Maid now apperaing an exercised Agent in the affairs of abomination privily took away the sword which was sheathed above the hilt in the Straw, whereby 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 wonder at these 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 term the sweat of an afflicted heart, and the excessive decay of her spirits by long waking, and relying upon the sworn promise of her Maid's watchfulness, and the presumed humanity of the Family, she composed herself to a posture of rest, but alas the sleep of Condemned criminals, and of women begirt with a straight Siege by a Barbarous Enemy was not more disturbed than hers, for that which should have afforded her rest to the reparation of her strength, served only to affright her imagination: until at last in reality she found herself surprised by a Barbarous attempt of the Defendant 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 desperate 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 happened at that very time, which was a sud deign raging sire that took hold on the Thatch of the house. Though she then escaped the danger by quenching the Luxuriant heat of his imodest desires per jgnis appositionem yet you may well imagine what direful impressions of fear and horror, were begotten in the timorous mind of this distressed Lady, for than she wished that the happy accident which had put fire to the house, had also put her adversary into a flaming combustion: or that by a sudden incineration it had reduced her into Ashes. When the flame ceased, and her afflicted mind remained under the terror of these imaginations, her Treacherous Maid faced with the Vizard of a smiling countenance persuaded her again to repair unto her rest, assuring her that she would lie by her, and with her vigilancy and assistance would secure her from the violence of the Defendant. wherefore being ready to faint in her spirits for want of sleep she suffered herself to be persuaded to yield 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 lie upon the Bed of Straw, and after a while, the Maid most traitorously withdraws herself 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 yields her place to the libidinous Defendant: who surprised the person of my slumbering Client with all endeavour he could use to deprive her of her precious Virginity: she then awakened 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 herself as an unconcerned 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 no help to her; but rather with a Cowardly silence seemed to approve that villainous fact; which otherwise I believe in common Charity they would have loudly declaimed against, dureing which time also his accursed Complices not only encouraged him in the pursuit of his lust by polluted discourses, more loathsome than the sulphurous evaporations of Hell, useing such words as might have moved Lucretia Portia or Penelope to Luxury, but also helped him & disabled her in such Barbarous manner as that I may modestly express myself only in the words of Hydaspes to Claricleja dicere non possum caeterum vobis relinquo Consider andum, at last having benumbed her Senses with the bruising of all her limbs as if he had been of the opinion which was tracqued to an eminent Person yet living by a Courtesan of honour in Rome, called Nina Barcarola who not being so courteous to that Person as to others, he caused her to be publicly whipped 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 savoury.  
Now the two Combatants as it were entangled in a Close, she was overmatcht by the prevalent force of his Lust; which governed the functions of his Libidinous limbs, and he like a stiffened pillar took such advantage of her imbecility, that breaking the Seal of her secrets he blasted the verdant Laurel 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 enjoy her, for I am most Confident upon the Credit of her own relation and other inducements of belief, that She took no more pleasure in that Compression and Coniungment, than 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 terms to express them and my words fail 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, o 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 always 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 horror to have seen this day.  
The matter is not yet ended, much is reserved for the latter Scene of this prodigious Tragedy, for the Complices of the Defendant do now boisterously endeavour to persuade her, that the only means to remedy this Blemish and to repair the ruins of her Fame, was to join the Ordinance of God to so foul a fact and to marry with the Defendant; but she though in the depth of her perplexities was judiciously convinced 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 Defendant seemed rather to boast of, then to blush at so foul a fact.  
You are now informed of a rape so Barbarous, so prodigious, that if it were possible to collect the voices of all Nations together, the Defendant would be Condemned by the suffrages of all mankind, unless the Enormonsness of the fact might authorize 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 Ottaviano Zuccaro, non é nissuno vitio checon esso seco porti piu puzzolente infamia.  
I am now to inform you that the Defendant at last thinks it necessary to overspred with forged pretences, the broad face of so great a Crime, and therefore he would palliate the rape under the colour of Marriage with the Actrix. Novatus consecrated himself a Bishop, and the Defendant might as well have Married himself, if Conjugal 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 easy to Compass by a forged Licence, he therefore in the first place applies himself to her by all Arguments he could take from the ordinary and known topics of persuasion to gain her Consent, but she refusing Compliance, he cast a dismal Frown on his Counterance and in most furious accents of speech menaced her, sometimes to send her to galway, and sometimes threatened her with expatriation, telling her that he would immediately 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 signs (and in particular as you have heard by throwing with contempt the ring forceably placed on her finger into the chimney) made sufficient indications of her dissent, even then when the Frowns of many angry and menaceing foreheads would have restrained her from the freedom of a plenary Contradiction. The matter being thus done, he knew well enough that it was not the losing of Virginity but conjugal alliance that made a Marriage: for it is a rule of law that nuptias non concubitus sed consensus facit, he was also sufficietly persuaded 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 than 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 public 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 with the greater verisimilitude into the belief of the popularese he caused several letters to be written intimateing a pretended Marriage, at last he brings her to the Town poorer than a Carthusian and leaner than a Romish lent, with intention to keep her secretly within his power until he might assure himself of her affection, but at her first entrance into the Town she was by God's providence so happy as to meet a friend of hers, by whose happy assistance and the Lord of Arans favour and prudence she was 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 Town makes a protestation against the force and Injuries offered her in Authentic form of Law, 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 Marriage 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 air and stain the glory of the stars, yet my Client seeming thereby to be sullied 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 lie under the imputation of so foul a Calumny in this Age, wherein most ears are as Credulous as his tongue is licentious, applies herself to this honourable Court, as the proper and free streaming Fountain of justice, wherein she now casts herself to wash out the stains of her wounded reputation, and hopes that the Defendant being overwhelmed at last under the burden 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 complied, in the omitting of many aggravations more than circumstantial against the Defendant, and though I should now by a clear showing forth of evidence confirm every particular of what I have presented unto you, yet to recompense in some sort the length of my Narrative with the brevity of what I am to speak of, we are resolved to apply the evidence to no more points of controversy then are absolutely necessary to determine the two great Articles viz, that there was not, nor could be any lawful marriage contracted or celebrated between the Actrix and the Defendant from the time of the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and abduction until 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 King's Bench.   

The Case of Mrs MARY WARE, and JAMES SHIRLEY;  
As it was argued, Relating to the several points of Law incident unto, and emergent there out  
By Dudley Loftus LL.D. in the consistory Court before Dr: Willam Buckley Chancellor to the Arch Bishop of Dublin, in Michaelmas term 1668.  
DUBLIN. Printed by Benjamin took, Printer to the Kings Most Excellent Majesty for Samuel Dancer Bookseller in Castlestreet.   

SIR,  
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 until her restitution to liberty in this City, continued under the force & terror of the Defendant and his complices.  
Secondly, That during the continuance of that force upon her, she was most barbarously Ravished by the Defendant.  
Thirdly, That immediately 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 bind 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 terror.   
I should now speak to such points of Law as are convenient to be applied 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 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 undeniable Authority, which is the opinion of Hippolytus 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 accounted 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 expressly declares that Statur juramento Virginis contra deflorantem, which words are so apposite and complete that they need no addition, and so evident as that they want no interpretation.  
Fourthly, I shall urge another Authority as clear 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 clear and full Authorities as I have premised need not be supplied by former precedents 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 precedents, the first is the case of Bishop Januarius 2. q. 1. Cap. imprimis (.) Gloriosus, where Gloriosus Comitiolus was ordered by decree, to restore and make recompense unto Bishop Januarius, whatsoever he should prove, by his own Oath, to have lost or suffered whilst he was under force and terror, quicquid praedictus Episcopus per violentiam atque 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 merely by his own Oath, and the reason is well rendered 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 than a learned extravagancy.  
So much for the clearing 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 proceed.  
I know no objection of moment that can be raised against the regularity and sufficiency of our proceed in this cause, yet to answer the greatest Cavil 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 to speak in the behalf of the Defendant not only 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 only to oppose the manner of our proceed against the Defendant for that he was not personally cited, this objection he often retrived and as passionately urged it against us, and no wonder, for it seemed like Sampsons' lock wherein his whole strength lay, it hath been formerly dissheveled, and it is now to be cut 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 proceed at least between party and party, which is not only founded in the law of nature, but also by all other laws owned and approved of as fundamentum juditii, for which reason the Clementine Pastoralis de sententia & re judicata declares in the case between Henry the Emperor 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 clearly 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 clearly consonant to this 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 alternatives, it is well known that the debtor, or he who is to perform 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 seem to strain this Law too far and urge it further than our Case requires, by serueing up the sense thereof ad montem literae (for it would be as absurd 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 perform any two or more things, may, without being Confined to any order of Election make choice of which he will to satisfy his obligation, as for Example if I oblige myself to pay unto Titius at a certain day, an hundred Barrels 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 satisfy 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 Law since the Epistle of Divus Hadrianus, (the Emperor and not Pope Hadrian the 4th as Fuller in his Ecclesiastical History misapprehends) became of force, the Creditor may sue the principal Debtor, or his sureties, but cannot sue the surety nisi excusso principali unless the fideiussor hath renounced the benefit of that Epistle, so it is in our Case, we had liberty to Cite the Defendant personally or by a viis & modis but were limited by such course of preordinat Election, as that we 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 will be whether the Defendant were to be found or no for if he were not to be found in Provintia, it is most certain that a viis & modis without any personal Citation may be deemed sufficient and legal enough, as I shall prove by the subsequent allegations which are so clear and manifest in the point, that no sophistry or prevarication can wrist them to another sense.  
I shall begin with Bouhick Capite causam. Extra. de dolo & Contumacia, whose authority in this case is an evidence of  Certainty, 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 clear 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, Which is so clear 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: none 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 who is extra provinciam is not requisite; but in cases where 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, whence we may warrantably conclude, that in this case where a matter of marriage comes into question, we may preceded lite non contestata, and therefore without a personal Citation.  
Moreover ubi mora sit periculum allatura there is no necessity of a Litis contestation, but such a case as this will not suffer delay, for the la doth suppose there may be periculum fornicationis in case a young woman in fermento juventuis should remain unmarried until the person were Cited personally, for which 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 with 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 now removed the only objections that could be surmised against our evidence and proceed, I shall proceed to the main decissory points of la, and enter into a more close and exact discussion of the Buisiness, and in the first place I shall speak briefly the vi & metu and show you first how they operat upon the will, secondly what operation they have in this case as to point of la and impediment of marriage, as to the first give me leave for your better satisfaction to recall into your memory some Philosophical notions whereby the violence offered to the will may be the better understood.  
The principles of every thing may be reduced to a twofold 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 intrinsic principles cannot be termed violent, but only that which ariseth from principles extrinsic, so that there is a twofold extrinsic 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 heavy thing upward, that which is violent in respect of the end may be resembled by one who being in imminent danger of shipwreck casts his goods over board, being not violentated by any one per modum efficientis, but only 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 only 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 only 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 determined to one thing, the other is a free agent and that cannot be violentated nor compelled per modum efficientis, but only per modum finis, and such a coaction may consist with liberty simply, this distinction you have in Aristotle in the 3d. of his Ethics, 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 subjoins 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 Noah.  
Now the will which is a free agent hath a twofold act viz, an immanent and interior act as that of nilling and willing, and an exterior imperat act as it is termed by the Schoolmen as the act of moving 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 exterior acts it may be compelled per modum efficientis, for it is most clear that one may move the members of another man's 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 Defendant 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 Lawyer's term metus facti, as when blows are given or one is in restraint as my Client was when guarded in the time of her abduction by the Defendant and his Marmidons.  
Thirdly, a compulsive fear, which proceeds a vi armata, and this was the terror that affrighted the Actrix, so she was first of all surprised and beset in hostile manner by eight armed Horsemen, and by them or most of them guarded in all places from the time of her said abduction until 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 show 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 Sums up the case thus, A certain Noble man holding his Wife in suspicion Commanded some Soldiers 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 Soldiers moved with a generous & pious Compassion took pity on her, and spared her life on condition she should betake herself 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 Veil; the Bishops taking into their grave Consideration, that she was a young woman and had a young Son, grew suspicious 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, told them that it proceeded merely from fear 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 satisfy her husband's cruelty feigneth the putting on the Veil upon her, after wards this Knight dyeth, the Wife then immediately 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 Holiness delegates a power to certain 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 Abyss and Nuns before them, and if it should appear by lawful proof that she had entered the Monastery not through fear of death but spontaneously, or that notwithstanding she had entered 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 etc.  
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 provincial Synod even in the time of George Dowdall Archbishop of Ardmagh and Primate of all Ireland concerning those Priests and Prelates who had celebrated the Sacraments and other divine offices according to the rites of those who were then deemed Heretics, diffinitum est quod omnes supradicti qui non voluntate sed metu hoc fecerunt admittentur ad gratiam & absolutionem vid Canonem 6. whence it appears that even Priests and Prelates 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 mystical 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 away by fear, for as Christ assumed human nature voluntarily, so marriage which signifieth that Union, aught to be voluntary, and therefore void of fear, ut signum correspondeat signato.  
Secondly fear is commonly an hindrance 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 balance on our side, I shall cast in over and above the former reasons and authorities, the express opinions in point of such other Lawyers, casuists and Schoolmen as will give a more ponderous than needful 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 judgement extra de his quae vi metusue causa fiunt. cap. absolutionis, omnia gesta per metum 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 subjoins as followeth el Miedo obra esto no solament, quando el Constrenido fingió Consentir y no consentiò enel casamiento, peró aun quando consenti● verdaderament, St. Thomas also is of this opinion, 4. didst 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 clearly deduced from several places of the decretals, 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. didst 19 quaestione unica Articulo tertio, Banaventure on the same place Art unico q. 1. Richars does 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 decretals 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 Defendant and his Complices did not draw their Swords nor make use of their Pistols, to this I answer that the evidence given by us makes it apparent that they drew both their swords and Pistols but put the Case 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 since prejudicio veritatis that they had made no use of their swords nay that they had laid down their Arms at her feet, let it be considered what we find 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 Marriage, 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 Physician could he should die unless he did suddenly marry a Wife, is good and valid, because the sear that forced him upon marriage did arise from a natural intrinsic 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 Controversy, and therefore conclude nothing against us, nor do they require any further answer than that the fear raised in the mind 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 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 myself 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 void the Marriage of my Client, by reason not only of the imbecility of her Sex but also of the frailty of her tender years, the Law doth much indulge imbecility and frailty for which reason women ob fragilitatem sexus may notwithstanding their obligations to Creditors, plead the privilege 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 than 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 Abbess 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 Ethics Cap. 8. saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. fortioris esse in terroribus vacare terrore & perturbatione, and if no fear or terror can befall a valiant man, how can such a pretention of fear be any impediment to marriage.  
Answer. To this objection, I shall answer first as a Philosopher, Secondly, as a Critic. my first answer is agreeable to the ancient Greek Scholias, and the latin Modern Commentaries 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 than 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 chief in the true recital of Aristotle's 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 faithful 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 sudden and unexpected surprises 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 than 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or to one of the like import and would be infignificant if the other were not either expressed or employed, justifies the copies where it is used to be most perfect and authentic, hence it followeth that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or if you will not allow that word in the text, than the particle: is to be rendered 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 rendered John the 3.19. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 men loved darkness more than light, that is they loved darkness and not the light, not comparatively but oppositively, which sense of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 though allowed by most other translations, yet the  interpreter renders it in a comparative form, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yet so as the sense is the same for the Ethiopick doth not render the words according to our Greek Copy, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dilexerunt homines magis tenebras quam lucem, but thus dilexit Deus mundum & elegit homo tenebras potius quam lucem for the words in the  run thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and it is clear that though we may love one thing better than 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 justify the  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 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 literal 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 hell ikeansn jaiptenits mtanel can 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 alleged 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 fearful in a sudden and unexpected surprise, 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 Defendant and his complices until 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 Defendant were present he would as impudently reply her unto, as he hath already falsely alleged else where that she seemed by the indication of some exterior acts at the time of her feigned or pretended marriage to be at liberty, to this I answer that she was there so far 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 censeaturque 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 exterior acts she had seemed 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 show you how little any indications of consent do signify as to the purging of fear in a case of marriage, I shall collect into as contracted a brevity as I can, some undoubted positions 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.  
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 Abbess 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 eumque 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 judgements in the case wherein lies the sinews of proof for res judicata pro veritate accipitur, in the month 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 claimed her for his wife and urged in proof of a free consent, that she had paid and defrayed the expenses of them both for their diet, and that she had made several bargains, and had written several letters unto him wherein she expressed herself to be his Wife, the judgement 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 judgement 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, neque 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 freedom from fear that she did declare her consent to Mr Archdeacon Rouse first I say there no proof made of any consent whatsoever expressed by the actrix to the Archdeacon.  
Secondly, I shall show how little such a declaration of consent doth operate in the like case, from an Example which we find in the practice of the Arch Bishop's Court in Naples p. 282. die. 27. jan: 1589. in eadem causa Coram Gipsio fuit, neque habendam esse rationem quod matrimonium suerit Contractum in fancy ecclesiae ad interrogationem Archiepiscopi, quafis quod metus hoc pacto purgatus conserctur, here the woman was married, not upon the interrogation of an Archdeacon, but an Archbishop, not in a private Chamber guarded by the Complices of a Ravisher, but in fancy 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 hearing 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 defendant 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 no spontanevos act of the Actrix Can purgare metum unless 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 replied that Miltown was then reputed locus tutus, I answer that they perhaps may think it a place safe enough to secure to themselves but whosoever hath a soul able to set open the windows of sense may easily perceive that it afforded her no 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 yield any thing of the cause, but give a satisfactory answer to what is alleged, 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 compelled by force and fear 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 to such compulsion, the allegation thereof, upon such hype thesis will not serve his turn, yet a woman being subject to such compulsion of Carnal knowledge as is Confessed by ad Lawyers, it may be alleged by her as an advantageous exceptition against a forced marriage though seconded with Carnal 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 lest it may seem to pass away with a tacit allowance that he had Carnal knowledge of her after the said pretended marriage, we deny that he was with her in carnis congressu after his coming to Milltowne, but should I grant that the Case were so, what advantage could the Defendant reap thereby, for put the Case since prejudicio veaitatis that the endeavours of the Defendant and his wicked Complices had prevailed so far with her as to persuade her that the Marriage had been valid, whereas it was not, and that she had thereupon voluntarily Consented to a Marital 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 until rescinded by the action quods vi metusue causa or otherwise, and that therefore this pretended Marriage is to hold until rescinded by sentence of this Court.  
To show 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 complete without the exceptions, whence the Logicians say anomalia addita analogiae complete 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 until 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 until he institute his Action vi & metus and obtain rescission thereof by Judgement of the Precedent of the Province Code de rescindenda actione. l. 1.  
Again a usurious Contract confirmed 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 fortify the objection against me, I must say that matrimoninm metu habitum is invalid ab initio by disposition of Law and needs no 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 etc.  
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 confessed by all Civilians Canonists and Casuists who hold that nuptias non concubitus sed consensus facit, wherefore saith Baldus ff quod metus eausa l. si mulier. si does &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 than Matrimonium metu contractum I shall give no further answer then to show 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 menace me in my Goods, and that he will burn certain 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 terror, I cannot avoid it by Plea, and the reason is saith the Lord Chancellor 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 myself from that difficulty if it may be so called, by destinguishing between Menaces relating to one's Estate or his person, for the Law is much different in the Case of menaces to one's person, and therefore if I be restrained in my person as my Client was, or threatened 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 another's ground, and I pursue to rescue them, yet am I a Trespasser to the Stranger upon whose ground I came; but if a man assail my Person, and I fly over another man's ground then am I no trespasser. Again if a Sherriff upon a Capias falsely return a Cepi Corpus & quod est longuidus in prisona, there I may come in and falsify the return 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 Case that if a Sherriff make a false return that I am summoned whereby I lose my Land, yet because of the inconvenience of drawing all things to incertainty and delay, if the Sherriffs return should not be Credited, I am excluded from any averment against it and am put to my action of deceit 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 remedy, rather than to suffer an inconvenience, but if it be a question of personal pain or tort, the Law will not compel him to sustain it and expect remedy, because it holdeth no damage a sufficient recompense 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 weak arguments do many times stiffen infidelty, I shall make use of none but what are drawn from the Chiefest inducements of belief.  
Be pleased therefore to observe a Case Clearly stated and determined in the very same words by Panormitan, Cap. Abbas de his quae vi metusue Causa fiunt, where you may find 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 enforced 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 casuists 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 clear ex capite qui duxit etc. 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 clear, that my oath cannot ratify 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 than I do either swear that I do inwardly from my heart yield a lawful consent, and then I am perjured, 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 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 ratify 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 kind of force is thereby prohibited, so also is there a most apt remedy and provision made for every kind of force, and so saith johannes 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 far, cap: sicut, extra de excessu prelatorum  
vis or force is divided into these several kinds viz: vis inquietava, vis turbativa, vis expulsiva, vis Cumpulsiva 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 kind of force which is vis turbativa, if it be in immovables the Law affords you the interdict uti possidetis, if in goods movable you may have the interdict called Interdictum utrobi  
If you suffer a disseison, or disposession by the third kind of force which is termed vis expulsiva you may have for your immovables 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 remedy of the action Called Actio 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 kinds, I shall now apply myself to the last, which is vis compulsiva, and show what influence it may have on our Case which consists of a Rape and other violence offered or attempted by the Defendant to enforce her to marry with him, but first of all I hold myself 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 Clearly 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 appears by the sadness of the event.  
1. If there had been no constraint upon her, and that she had gone 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 Room of an house to another only commodioris concubitus gratia it had been no Rape, for he that forceth a woman to succumb to his lust whom he finds her in a certain place without abduction to another place of some distance doth not properly commit a Rape.  
Thirdly. If she be not carried 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 progressiva in actum pro facto reputatur.  
So much may serve to describe the nature of a Rape, I am now to show its repugnancy to Law, The Law of God prohibits 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 die, the words seem at first to be very strict viz. that whosoever shall lay hold on a woman shall die, therefore it will not be amiss perhaps to explicat the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by the several anoient and authentic translations of the Bible, the septuagint renders it by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, enforcing 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 clearly signifies to prevail by force or violence as in a Conflict, and so the Samaritan Interpreter hath expressed it in the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉; and though the Interpreter of the Arabic translation agrees with the vulgar Latin apprehends yet the Arabic word in that place is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 & coercuerit eam which sense it bears 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 no 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 dog by the ears, Rabbi Solomon jarchy 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 terms 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 might not have so much as touched 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 unpunished or at most be punished only with that which is incident naturally to all men, even to the most innocent, which is death, for the whole penalty here expressed is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 & morietur he shall die, 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 polyglot Bibles to render it by the word morietur, for it is better expressed out of the Arabic Interpreter interficietur, for which reason the Italian, the Spanish, French, and Dutch, aught to be corrected as well as our English translation, all which follow the vulgar latin morietur, from this penalty and the Critical Gusto that I have given you the true sense of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 you may clearly perceive that by the Judaic 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 find only a plain prohibition without any penalty subjoined, 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 sharpened their severity not only 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 haec Ministeria servilis conditionis fuerit compr ●hensus, entra sexus distinctionem concremetur. vide Arnoldum de Herbolt de actionibus p. 642. and the Code de rapiu virgins l. 1. this law as you may observe by the by concludes worse against the treacherous maid of the Actrix, than the figure Bocardo wherein she yet deservedly remains.  
Nay the Canon Law punisheth not only Servants but also all others, who are any way accessary to a rape with Excommunication, infamy, incapacity for dignities and offices, as appears 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 descomulgadoes infames e incapaces de todas dignitades. Which is the reason that by the Laws of Heraldry whosoever he be who ravisheth a virgin, must bear his Escutcheon reversed, and it appears 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 give haw wudewan nyde name gebete with bewere, give 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 lose his life,  
I might also give instance of the ancient Laws 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 find out, but the effect thereof shows that the Law against Rape was most strict in itself, & as severely executed, for the Annalists say that in the reign of 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 Cook the third of the Institutes, Cap. 12. who there refers you to a large Margin with a long and numerous train of Ancient and Authentic▪ 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 Isabella the wife of john 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 judgement of Life and member.  
Nay this offence by the Statute Law is ampliated so far as to become felony in the aiders and abettors as we●l as the principal, nay so far is it extended in the words of the Lord Cook as to bring accessories aiders and abetters under the notion of principalis, for these are the words 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 only, as to Commit Rape, not only he that doth the Act is a principal, 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 mind that by the 11.12. and 13. Jacobi cap. 3. Clergy is taken away in Case of Rape.  
I have now shown you the nature of a Rape and the repugnancy thereof to the Law of God, the Law [of the twelue Tables the Elder Roman Laws, the Ancient Saxon and Irish Laws before the Conquest of Ireland, and to the Common Law, as also to the Ancient and recent Statute Laws.  
I shall now draw near to those Laws which are of most Concernment, to show that there could be no Mrrriage lawfully Contracted betvveen the Actrix and Defendant by reason of the said Rape and the force that was upon her dureing the time limited in the State of the Case, which was from the first instant of her abduction until her restitution to liberty.  
To this effect I shall make use only of the Civil Law and Canon Law, and the Doctrine of the best and most renowned Casuists as being the best rules by which things of this nature can be warrantably determined, and though those replenished treasuries might afford me abundant authorities and arguments, proportionable to the Offerings made for the Tabernacle more than sufficient, I have made choice of a few, yet such as will stiffly bear up the weight of the Cause, and I shall take my rise from the Code. l. 1. de raptu virginum (l. 1.) which book hath as much reason to persuade as authority to oblige where it is of force, the words are these raptores virginum honestarum vel ingenuarum quasi pessima crimina peccantes, capitis supplicio plectendos discernimus.  
In the next place be pleased to consult the authentics 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 enlarged 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. 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 than 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 suits with thelast recited authority.  
If what hath been alleged out of the Civil Law hath not furnished 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 what I shall present unto you taken out of the text of the Canon Law, 36. q. 2. cap. 1. are these words  with authority in the point, raptor in uxorem non potest raptam accipere; but the reason subjoined is yet more big with emphasis. Quia eorum coniunctio auctoritate canonum sanctorum penitus prohibetur.  
Again Extra 36. q 2. cap. placuit you have words of no less import than 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 council 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 Council of Melda which for its warrant quotes a Synodall definition of St. Gregory to the same purpose.  
Hence it was that urban 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 of that nature long before in England and Ireland, and particularly in the Case of Nicholas Dowdall and Ellen Dilane of the Diocese of Armagh in the Reign of Philip 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 find also the like Clause in another rescript of the same Cardinal, in the behalf of one Richard Bedlewe and Matilda . 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 show 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.  
Emanuel Sa & Diana tractatu de Sacramentis p. 152. resolutione. 261. say 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 Defendant: 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 immediately proceed to declare his punishment, for his false and Calumnious jactitation of Marriage with the Actrix, but that I am necessitated to break through the ambush of some few doubts which lie 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 now 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 avail him in that behalf, for saith Navarr Consilio 2. de raptoribus (p. 319.) decideing the Case between john 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, sive id fiat de voluntate puelle sive 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 johannes rapuit Brancaleonam patri, ipsa tamen volente & consentiente cum qua contraxit matrimonium, postmodum mota lite a patre, fuit lata sententia contra dictos johannem & 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 mistook it,) being for a long time enamoured with Dermott Mac Murrough then King of Leinster, she sent him word by a private messenger, that her husband King Tighearnan was then gone a Pilgrimage to St: Patrick's Purgatory, 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 embrace the motion and took hold of the opportunity 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 cried, as though she had never Consented to have Eloped with him; but that he had violently forced her away against her will and mind, so that the struggling weeping and crying of women are not always certain indications of their mind.  
My answer to this objection shall be to show the dissimilitude of both Cases, for in the Case of my Client, it is not so much as alleged, that she gave any encouragement unto, or was privy to the intention of the Defendant 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 form 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 alleged on the behalf of the Defendant that there is no full proof that he had Carnal knowledge of her, and that therefore the pretended Marriage doth not appear to be void ratione raptus to this objection I should make three answers, 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 manu raptoris Clausula 5. where he instanceth the Helena & rapine 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 alleged 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 transgressor, such as was the lex furia testamentoria, and such as is the Law concerning forbidden Marriages against the Father's 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 reckoned as Concubines, and their Children Bastards, and there was neither Dowry 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 was not made naturally null, and Paulus gives an excellent reason for it in these words, contemplationem enim publicae utilitatis privatorum commodis anteferri, for it is of public Concern that marriages naturally valid be not rescinded, but it is of private Commodity and emolument that the Father should be pleased in the choice of his Son in Law, but the instance out of Paulus concerns only a marriage without the Father's consent, but not against the consent of the ravished 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 Magistrate, 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 than 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 immediately 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 gloss, 
Effuge Cum poteris ne consensisse puteris  
Nam si perstiteris illius uxor eris.   
To this objection the main force whereof (if any there be) lieth in the words statim reclamare, I answer thus, that the word statim, though it be always Confined to a short time, it doth not every where import an instant but admits of aliquod temporis intervallum & 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 spelman 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 concerned 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 Antiquary observes was derived from the Salic Law.  
But to make a more direct answer to these two instances, as for the Constitutions of Scotland, they have no binding force on us, who are governed by Laws of our own, and as for that of Fleta, I think it is not applicable to our Case, but to an appeal of Rape at the Common Law, according to the first of Westminster the first and the 13. and the 3. Edward 1. where we read that any person may sue within 40. days, but if not then, the King shall have Suit, furthermore the time of such appeal hath been enlarged in after times as appears by Stampford in the Pleas of the Crown, speaking of a shorter time anciently limited for prosecution of an appeal at the Common Law, who writes 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 tres Ans apres uncore sera dit asses bon. i e. The Law 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 herself out of the amazement that this force brought upon her which could not have been done sooner; but also immediately on the first night she came to Dublin, she made a protest in due form 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 remark 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 words of Fleta conquaeri oportet faeminam intra quadraginta dies, or that we were obliged by the Regiam Majestatem of Scotland in these words. Si ultra unam noctem expectaverit rapta ad habendum consilium amicorum as also in these words lapsu diei hoc crimen praescirbitur yet we have pursued the rigour of boath 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for she not only Consulted with her friends thereof but also made a formal Complaint to the Magistrate, and had him thereupon Committed to Prison the same night she came to Town; which was so short an interspace of time as came within 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  of Dublin, which by appeal was brought into judgement before Robert Waren then principal official of the Metropolitical Court of the Archbishop of Dublin, it seems the official of the  though the Marriage between the said parties was contracted per vim & metum decreed them to Cohabit as man and wife, and this sentence was confirmed by the Archbishops 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, appealed from the Metropolitical Court at Dublin to the Primatiall Court at Armagh, when John Archbishop 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 Simon for a month, 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 Defendant) so soon as she could, he voided and nullified the sentence of the  of Dublin his Official, and of the Archbishop of Dublins principal Official, and decreed by his sentence definitive as folloeth.  

IN DEI NOMINE Amen.  
AVditis, visis, cognitis & plenius intellectis meritis & circumstantijs, causae appellationis, & ipsius ●…sae principalis, primo coram honorabili Viro Magistro Gul. Thunder officiali Domini Rogeri Cross Archi-diaconi Dubliniensis, inter Aliciam Knight mulierem, partem actricem ex parte una, & Simonem Abrey ejus de facto maritum, partem ream ex parte altera, motae & aliquandiu pendentis indicisae; deinde per viam appellationis, ad Curiam Melropoliticam Dubliniensem devolutae, & ibidem finaliter terminatae, ac ad curiam Metropoliticam A●machanam totius Hiberniae Primatialem denuo per appellationis Viam devolutae, & nobis per Reverendissimum in Christo patrem & dominum Dom. Johannem Dei & Apostolicae sedis Gratia Archiepiscopum Armachanum, totius Hiberniae Primatem, fine Canonico terminandum commissae. Et quia nos visis & rimatis actis & processibus causarum hujusmodi coram Magistro Roberto officiali Curiae Dubliniensis judice a quo introductis, & coram nobis judice ad quem productis, invenimusque per depositiones testium fide dignorum coram nobis productoruni, contra quos seu quorum dicta, nihil pro parte dicti Simonis erat objectum, sive propositum, & alia legitima documenta animum nostrum juste moventia, memoratam Aliciam, suam intentionem, tam in appellationum, quam in sui principalis causis, bene & legitime fundasse. NOS igitur Jacobus Leech Ecclesiae Armachanae Canonicus, partibus, & causis antedictis Commissarius, per suprascriptum Reverendissimum Patrem, & Dominum nostrum Dom. Johannem Archiepiscopum & Primatem supradictum, specialiter deputatus: Christi nomine primitus invacato, & de juris Concilio peritorum ad plenum deliberati, supradictam Aliciam bene & legitime appellasse, ac judices supradictos a quibus exstat appellatum, nulliter & nequiter, injusle & inique sententiasse pronuntiamus, decernimus & declaramus; eorumque sententias infirmamus, cassamus, irritamus, & annullamus, viribusque vacuamus, & quia invenimus per depositiones testium fide dignorum, quod dicta Alicia per vim & metum amicorum suorum compulsa, matrimonium cum dicto Simone contraxit, & nunquam in eundem consensit, imò verius dissensit, quodque quam citius potuit, ipsius comitivam effugit, matrimonium igitur de facto & non de jure, inter dictos Aliciam & Simonem contractum, quatenus de facto & non de jure processit, cassamus irritamus, & annullamus, cassum, irritum & nullum dejure fuisse & esse pronuntiamus decernimus & declaramus, eosdemque ab invicem separamus, & divortiamus, ac dotes & donationes propter nuptias, paraphernalia inter eosdem praefata sive donata, decernimus hinc inde fore restituenda, ac utrique parti alibi in Domino nubendi licentiam impertientes, per hanc nostram sententiam definitivam quam in his scriptis fecimus justitiâ mediante, etc.   
By these two sentences of the Archbishop of Armagh his delegat, and the Archbishop of Dublin his principal official 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 Archbishop 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 Archbishop 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 Archbishop 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 Archbishop of Armaghs delegat declared it no marriage because he was assured by good proofs, as you have been in this cause that the vim passa did make reclamation and fly from the Defendant so soon as she could quod erat probandum.  
H● thereto I have proceeded in reference to the fear and force that was upon her, whereby 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, we 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. which 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 again in the same Cause for that it would be vain and void of effect, to this I answer, true it is, that the first Excommunication hath more effects than the second can have, yet the second is not without 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 faithful, the third effect is a strict retention of the party without the communion of the Church, until he be absolved, I confess that it is the third effect only that is wrought 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 until he obtain absolution from the second Excommunication, for it is true what Panormitane saith the judaeis & 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, where it is apparent that he may be Excommunicated and that to good effect the second, third, fourth time or oftener, Again there is a twofould Excommunication the one for a Contempt, the other propter delictum, vel injuriam alicui illatam, the Defendant being Excommunicated already for his Contempt, may be absolved upon his appearance, submission and security given parere mandatis ecclesiae, but if he be once Excommunicated propter delictum he cannot obtain absolution quousque parti laesae fuerit satisfactum, until the party injured receive satisfaction. Wherefore in regard he may be legally Excommunicated the second time and that is most just he should I conceive we have good reason to desire it.  
Much might be spoken to the aggravation of this Crime were the severity of punishment my chiefest aim, yet I shall make use at present but of two aggravations, the one is taken from the consideration of her being under the guard and tuition of her father, for in the book 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 which would have been no more than fornication in a young Woman at her own disposal is deemed adultery in her who 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 married Woman for as much as she is under the protection of her husband, and her body is her husbands, if she have to do with any other man in congressu carnis doth by the injury hereby done unto her husband become an adulteress, so a vitgin vvhilst she remains in the power of her Father and is his as to the Custody of her person, when she yields though through fear her body to any man, injures him, and as Gasper Astete saith see puede llamar adultera may be called an adulteress as she is termed Eclesiasticus the 42 whence it is inferred by the Casuists, that, when she who is under the power 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 well as of Luxury, whereas a Virgin not being under the power, of a Father but at her own dispose, if she lose her Maidenhead, 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 expressed in the words of the Poet Catullus that the recital of them in their Original, will be sufficient without prostitution to vulgar understandings.  
 flos in septis secretus nascitur herbis  
Ignotus pecori, nullo succissus aratro,  
Quem mulcent aurae, format sol, educat imler,  
Multi illum pueri, multae optavère puellae,  
Idem cum tenui captus defloruit ungue,  
Nulli illum pueri, nullae optavere puellae:  
Sic virgo cum intacta manet, dum chara suis,  
Cum castum amisit, polluta Corpore, florem,  
Nec pueris haec chara manet nec chara puellis.  
There remains yet in arrear one branch of the Cause his jactitation of Marriage which in the opinion of Grotius Deserves 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 practice as to that point, that shall not so much abuse your patience and leisure, as to spend time and words in rendering 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 expenses, all which we hope and humbly desire that you will immediately pronounce, for that we are confident the Case is so Clear that it need not lie longer in the balance of deliberation, and that whatsoever I have said in this debate may be interpreted no otherwise then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉  
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉   

Short Advertisements given to the said Court and Auditory after sentence pronounced, delivered in a speech by Dudley Loftus Doctor of the Laws etc.  
MY promise hath made me deptor to the expectation of this assembly for an advertisement which I thought to have given then in the series of my former discourse, which through hast I then omitted, if therefore I may presume on your favour and licence, I shall take advantage of so many witnesses of good note as are here present, to make a reflection in a word or two, on the Plaintiffs case, wherein If I shall say any thing not agreeable to your opinion, I shall in all the flexures of humility submit to your correction and the regulation of your better judgement, me thinks I hear most persons declare the satisfaction they have received in your most righteous judgement, yet some seem to be of opinion that the splendour of your justice shines upon the Lady no otherwise, then as the Sun profusely sheds its beams on blasted blossoms which receive no benefit thereby, and others think that chastity without Virginity is but as a Garland of Flowers that hath lost its scent and colour; for my part I have already declared my opinion, that untouched Virginity is the most precicus Jewel of the female sex, and I do agree with Ariosto who saith.  
Non nobilita ne gran fortuna basta,  
Se per nome e per opere non e casta.  
And I confess that it was a great misfortune that the bud of her Virginity was pulled from the stalk before it could spread or show itself in marriage, and that she cannot receive an equivalent exchange in satisfaction of that which she hath lost; yet I dare affirm that this loss hath not brought her into disgrace with prudent men, nor doth her honour thereby go into diminution, for she hath no more stained her reputation than she hath stung her conscience by enduring that which she could not avoid, insomuch that I dare appeal to the strictest tribunal on earth for judgement, whether she hath received so much as faniae vulnusculum by the force offered unto her; nay I am of opinion that some unsuccessful contests are to be preferred before some Victories for which reason Tornay in France bears a Badge of Reputation to this day for that Caesar confesseth in his Commentaries that he found a more valorous resistance there then elsewhere, I am confident the reason may be urged much more to the advantage of the persons who made the resistance than the place where it was made, and if so, I rest assured my Client hath more reason to glory on the Theatre of a public appearance then to shrink into the shade of obscurity, or to hid herself in the dark corners of a bashful retirement, for let us consider her first of all ratione metus concussi, and then ratione vis illatae, as to the first it is confessed that a married woman if she should yield to an adulterous act by reason of fear, (though it were so great as might be incident to a valiant man) she would in the opinion of the Casuists be held guilty of adultery, quia metu mortis non licet contra legem agere quae est juris naturae, eo quod intrinsicam habet malitiam, for not to preserve the fidelity of Wedlock is against the law of nature and in itself in trinsically evil, and therefore not excusable upon any consideration of fear though never so great: But a Virgin, if she through fear consent (which my Client did not.) to a constupration, she is not guilty of the formal evil thereof, for non censetur Cooperatio in malo nisi ubi res est intrinsice mala non pendens a voluntate Concurrentis saith Candidus de Confession sacramentali Artic. 23. Dubio. 12, but malitia stupri doth so depend on the will of the woman that illa concurrente tollatur, but illa renitente ponatur, the difference of the two cases consists in this, that the circumstance of the two cases consists in this, that the circumstance of adultery doth not depend ex voluntate faeminae as that of Constupration doth, so that if my Client had yielded through fear, she had not been guilty of the evil of Constupration, (though the stricter Casuists would perhaps extend it ad malitiam fornicationis) but the case is otherwise with my Client for fear did not prevail with her, she was compelled by force,  
And ye know that force and imbecility are the great distinguishers of sin insomuch that not to commit a sin through imbecility makes one guilty of sin, whereas to be concerned in sin through imbecility excuseth from sin, wherefore saith a famous Doctor of the Laws Johannes de Moutholon in affirmance of the first position, qui sola virium imbecillitate desinit peccare reus peccati est, quia ream mentem habet, vide Cap si cni etiam de paenitentia dist. 1. and in proof of the later position viz, that to be concerned in sin through imbecility excuseth from guilt, I shall produce a testimony from the very fountain of the law, for Azo who is termed fons legum saith in concurrence with Baldus, tolle voluntatem de medio & omnis act us erit indifferens, and therefore Gabriel Biel expresseth himself thus, in voluntariis neque vituperamur neque landamur, which agreeth with this saying of St. Austin, violentia non violatur pudicitiae faeminae, quia violenter Compressa, Carne non utitur, sed sine consensu toleratur quod alius operatur, that father is yet more clear in this point when spaking of a married man who forced a modest woman, he saith duo in adulterio fuerunt unus commisit, the reason hereof may be perfectly rendered in the observation of Nicholaus de Orbello, viz, that as the understanding being under the Dominion of anger is nor sui juris, so timentes vel vi oppressi non habent voluntatis plenditudinem nay rather velle non dicitur qui metus causa vult vel vi oppressus succumbit, to this you may add the words of Baldus Metus est participatio duarum qualitatum scilicet voluntatis & noluntatis, cujus effectus declinat ad velle, & affect us inclinat ad nolle. de his quae vi metusue causa fiunt, Cap. 1. n. 5. and Accursius declares that voluntas meticulosa est tac●ta quaedam contradictio, & mrgis accedit dissensui quam consensui.  
Perhaps the foregoing arguments did not slide so smoothly into the apprehension of the unlearned as I could wish, for they were taken out of the knotty timber of School divinity, which for the most part rejecteth the plain, yet I shall endeavour to make myself more inteligible to them in what remains.  
I know that many ingenious persons do oftentimes insinuat false opinions into the minds of the ignorant and do invade the persuasions of less discerning persons by a licentious rayllerie which may be termed a blamable liberty of practising wit too freely, and that it is an easy matter for such ignorant persons to be deluded thereby, who having no further recourse then to their own imaginations will not remit such matters to the examination of reason.  
Hence it is that this Lady's condition hath been drawn into debate, and though some persons and they of honour and judgement, hold it for as evident a truth, as that the three angles of a triangle are equal to two right angles, that she is no whit prejudiced by her late misfortune, yet others seem to be of opinion, that she is thereby brought under the suspicion if not prest●mption of worse dispositions, and a greater facility of temptation, and that therefore she is notably damnified in her reputation, which opinion is promoted with too much temerity by some of like mind with the Jesuists, who as the Franciscans say by a dexterous manner of depressing other religious orders, seek to procure grandeur to themselves, but do not consider that the best way to defend their own reputation, is to be careful of the credit of others, for my part I shall not precisely determine the matter to the tenet of either of those parties, for we are not now in the blazon, are tricking a coat in Heraldry, where so small a thing as a colour of one hair makes a coat another thing, as in Erminites; but I think that things of this nature are like to the time which the rules of religion appoint for the recital of hours, which as the Casuists teach habet aliquid latitudinis, the later opinion seems to me too severe & grounded upon a temerary surmise, not to be warranted by any principle of piety or rule of charity; and though the first opinion may be in courtship admitted as a favourable mistake, for the Lady's advantage; yet I think it best to temper the extremity of these two opinions in a middle way though Sub conditione crucis, my opinion therefore is that though she is not altogether as she was before to every fancy, yet is she not really or considerably the worse in the opinion of the most judicious and if there be any difference between the state of her untouched virginity, and her new confirmed chastity of mind, as to valuation it is almost like that of the stars in the firmament whose different magnitudes are not perceptible to the most clear seeing eye, so that I presume that a ravished innocent, and an untouched Virgin may seem to shine with equal splendour in their respective! Orbs, and that this chaste Lady may be resembled to the pure mettle of the Crown pieces of the sometime Lords Justices of this Kingdom, which though their stamp and impression should be altered, or lost, would notwithstanding carry no less intrinsic value in the same weight; the Duke of Somerset said that all his actings were blameless in the eye of justice, so I may say that all her sufferings in the time of her abduction were as innocent in the eye of honour, nay that the Heroic acts performed by her in the defence of her chastity do exceed a volumn of their virtues who have preserved the integrity of their bodies: quid enim prodest pudicitia corporis animo constuprato saith St. Hierome in Jeremiam lib. 2. cap. 7.  
Again it is a thing agreeable to the ingenuity of all worthy persons to observe that law which they impose upon others, and therefore l. ff. de pact is it is said nihil tam humanae fidei consentaneum est quam ea quae placuerunt servari, give me leave therefore in a modest freedom to ask the most virtuous Lady amongst you what she could have thought criminal in herself to have been forced as that Lady was, I hope enough hath been spoken to determine your judgement in this affair so far at least as to clear her reputation, and I know that to insist too much on the proof of so clear a truth would crush your attention as flat as a (B) after a cliff, I shall therefore immediately coast upon a conclusion and therein desire you rather to lament her late sufferings with tenderness of heart then judge her present condition with severity of censure, let no man discharge upon her innocency the misapprehensions of his wild fancy or untamed wit, let no man make her Rape farther matter of discourse, but rather let that misfortune be hidden under the vail of perpetual forgetfulness, let the Garland of chastity remain unwithered on her brow let her flourish in an honourable reputation whilst the Defendant deserves to have his goods confiscate and his Memory banished out of the world: and let her virtuous mind enjoy the quiet of a Serene conscience, whilst his black Soul is left during Divine pleasure to the dismal horror of midnight dreams, to the terrors of the law, and the dreadful apprehensions of the day of judgement.  
FINIS