Herbert's

every pope did swear: and how the papal authority was first derived from the emperor, and not from Christ. For this there were good arguments taken from the Scriptures and the Fathers. The book was signed by life of king both the archbishops and nineteen other bishops. It p. 418. [ed. was called the bishops' book, because devised by them. The lord Crumwel did use to consult with the archbishop in all his ecclesiastical matters. And there hapmatrimony pened now, while the archbishop was at Ford, a great archbishop. case of marriage: whom it concerned I cannot tell, but

Henry,

Lond. 1672.] Certain

cases of

put to the

the king was desirous to be resolved about it by the archbishop, and commanded Crumwel to send to him for his judgment therein. The case was threefold :

I. Whether marriage contracted or solemnized in law

f [The case was between the late duke of Richmond, (Henry Fitzroy, who died when about seventeen years of age), and the daughter of the duke of Norfolk, as the following extract from a letter to Crumwei from the archbishop shews. The original letter is preserved in the State Paper office, Miscel. Letters, temp. Henry VIII. and has been printed in the State Papers, vol. i. pt. ii. pp. 574, 5.-" And as touching your farther advertisement of the king's most gracious pleasure to be resolved in the case of matrimony between the late duke of Richmond and my lord of Norfolk's daughter, wherein his highness willeth me to call my doctors unto me, and to propone the same case amongst them, whether such marriage be matrimony or no: I assure your

lordship, that, without farther
convocation of doctors, I am
fully persuaded that such mar-
riages as be in lawful age con-
tracted per verba de præsenti are
matrimony before God. And the
same case is, (as I remember),
plainly opened and declared in
the king's grace's book of his
own cause of matrimony. How-
beit, I shall eftsoons consult here-
in with such learned men as at
this time be with me present,
and send unto your lordship our
resolution in the same. And if
his grace will have me further to
consult therein, then I must send
for other learned men, or else
come to London myself. Thus
Almighty God have your lordship
in his tuition. At Forde, the 14th
day of January.

Your own ever assured,
T. CANTUARIEN."

ful age per verba de præsenti, and without carnal copulation, be matrimony before God or no?

II. Whether such matrimony be consummate, or no? And, III. What the woman may thereupon demand by the law civil after the death of her husband? This I suppose was a cause that lay before the king and his ecclesiastical vicegerent, to make some determination of. And And I suspect it might relate to Katherine, his late divorced queen. The archbishop, who was a very good civilian as well His soluas a divine, but that loved to be wary and modest in all his decisions, made these answers:

That as to the first, he and his authors were of opinion, that matrimony contracted per verba de præsenti was perfect matrimony before God. 2. That such matrimony is not utterly consummated, as that term is commonly used among the school-divines and lawyers, but by carnal copulation. 3. As to the woman's demands by the law civil, he therein professed his ignorance. And he had no learned men with him there at Ford to consult with for their judgments: only Dr. Barbar, (a civilian that he always retained with him,) who neither could pronounce his mind without his books, and some learned men to confer with upon the case: but he added, that he marvelled that the votes of the civil lawyer should be required herein; seeing that all manner of causes of dower be judged within this realm by the common laws of the same. And that there were plenty of well learned men in the civil law at London, that undoubtedly could certify the king's majesty of the truth herein, as much as appertained unto that law; warily declining to make any positive judgment in a matter so ticklish. This happened in the month of Januarys.

["And as for the case of marriage wherein your lordship

first required to know, whether
marriage contracted and solemni-

tion.

Refuseth to grant a dis

And indeed in these times there were great irregularipensation ties about marriage in the realm; many being incestuous for the mar-and unlawful; which caused the parliament, two or three years past, viz. 1533, in one of their acts, to publish a

riage of a relation.

table of degrees, wherein it was prohibited by God's law
to marry.
But the act did not cure this evil: many
thought to bear out themselves in their illegal contracts
by getting dispensations from the archbishop; which
created him much trouble by his denying to grant them.
There was one Massey, a courtier, who had contracted 46
himself to his deceased wife's niece; which needing a
dispensation, the party got the lord Crumwel to write to
the archbishop in his behalf; especially because it was
thought to be none of the cases of prohibition contained
in the act. But such was the integrity of the archbishop,
that he refused to do anything he thought not allowable,
though it were upon the persuasion of the greatest men
or the best friends he had. But he writ this civil letter
to the lord Crumwel upon this occasion:

My very singular good lord, in my most hearty wise Cleopatra E. 5.h I commend me unto your lordship'. And whereas your His letter lordship writeth to me in the favour of this bearer, thereupon. Massey, an old servant to the king's highness, that being contracted to his sister's daughter of his late wife deceased, he might enjoy the benefit of a dispensation in that behalf; specially, considering it is none of the cases of prohibition contained in the statutek: surely, my lord, I would gladly accomplish your request herein, if the word of God would permit the same. And where you require me, that if I think this license may not be

[Cotton MSS. Cleop. E. v. fol. 102. British Museum. Original.] ["To your lordship." Cott. MSS.]

k [Stat. 28. Henry VIII. cap. 7. "For the establishment of the succession of the imperial crown of this realm.' It was passed a few months before on the king's

marriage to Jane Seymour. The
prohibited degrees were expressed
in it in nearly the same terms as
in the former act of succession,
25 Hen. VIII. cap. 22, but were
extended to cases of carnal know-
ledge." - Jenkyns' Remains of
abp. Cranmer, vol. i. p. 173.
n. r.]

granted by the law of God, then I should write unto
you the reasons and authorities that move me so to
think; that upon declaration' unto the king's highness,
you may confer thereupon with some other learned men,
and so advertise me the king's farther resolutionm. For
shortness of time, I shall shew you one reason, which
is this. By the law of God many persons be prohibited
which be not expressed, but be understood by like pro-
hibition in equal degree. As St. Ambrose saith, that
the niece is forbid by the law of God, although it be
not expressed in Leviticus, that the uncle shall not marry
his niece. But where the nephew is forbid there, that
he shall not marry his aunt, by the same is understood
that the niece shall not be married unto her uncle.
Likewise as the daughter is not there plainly expressed,
yet, where the son is forbid to marry his mother, it
is understood that the daughter may not be married
to her father; because they be of like degree. Even
so it is in this case and many other. For where it is
there expressed, that the nephew shall
uncle's wife, it must needs be understood that the niece
shall not be married unto the aunt's husband, because
that also is one equality of degree. And although I
could allege many reasons and authorities mo [re] for
this purpose; yet I trust this one reason shall satisfy
all that be learned, and of judgment.

not marry his