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LEGITIMACY AND DOWER

195

solemnization are now put in one office." An acknowledgment of these contracts appears in the Injunctions of King Edward VI., 1547: "Item, Whether you know any to have made privy contracts of matrimony, not calling two or more thereunto." 2

There has been much controversy on questions relating to legitimacy and dower in the case of irregular marriages, but there can be no doubt that, if Shakespeare entered into a contract of marriage per verba præsenti or cohabited after a contract per verba futuro, he could have been ordered by the Ecclesiastical Court to proceed to solemnization even after a subsequent marriage with another. This second marriage would also have been void at Common Law by sentence of the aforesaid Court. The difference between the Canon and Civil Law on this subject is shown in the following extracts :—

"A contract made per verba præsenti, or per verba de futuro followed by cohabitation, between persons able to contract, was deemed a valid marriage and equally binding as if made in facie ecclesiæ; it was indissoluble, and either party might in the spiritual court compel the other to solemnize the marriage ecclesiastically. Nevertheless it was decided by the House of Lords in the case of Reg. v. Millis, 10 Cl. & F., 534, that there could not have been a valid marriage before the Reformation without the presence of a priest ecclesiastically ordained, or afterwards without the presence of a priest or deacon."

"4

"There are three distinct points as to legitimacy on which the Canon Law was not accepted or recognized by the law of England:-First, that by the law of England, a ceremony before a priest was necessary to the validity of the marriage in order that the wife might have dower of her husband's land and the children be heirs; whereas by the Pre-Tridentine

1A Collection of the Laws and Canons of the Church of England, 1851, ii. 340. 2 Cardwell, Synodalia, i. 51.

3 The Revd. H. S. Bowden says: "Shakespeare in Fenton's defence of Anne Page's clandestine marriage lays down accurately the Catholic doctrine on the subject." The Religion of Shakespeare, p. 258. See Merry Wives of Windsor,

v. 5.

J. T. Hammick, The Marriage Laws of England, 1887, p. 5.

Canon Law which still prevails, where the decrees of the Council of Trent are not published, simple consent of the parties, exchanged secretly and without any ceremony, either per verba præsenti or per verba futuro subsequente copula without more constituted marriage. Secondly, the issue of a void marriage contracted bona fide; and thirdly, the issue of persons who subsequently to the birth of issue intermarry are legitimate by the Canon Law, but bastards by the Common Law."1

1 W. Nevill Geary, The Law of Marriage and Family Relations, p. 3.

EXCOMMUNICATION AND OTHER

PENALTIES

THE following description of the proceedings upon the refusal of one of the parties to carry out a contract of marriage is taken from A Treatise of Espousals or Matrimonial Contracts, by Henry Swinburne, 1686, page 231: "By Laws Ecclesiastical of this Realm, if any having contracted spousals and being convented and adjudged to celibrate matrimony accordingly, do refuse to undergo the Execution of the Sentence pronounced by the ecclesiastical judge, he or she so refusing may for his contumacy or disobedience therein be excommunicated. And if the party do still persevere in that state by the space of 40 days the ordinary may by a Significavit or Certificate under his Seal certify unto the Chancery the contempt of the party and craving the aid of the Secular power. Whereupon a writ de Excommunicatio Capiendo is to be directed to the Sheriff for the apprehension of the body of the same party excommunicated who being apprehended by virtue thereof is to be kept in prison, without bail or mainprise, until he or she have humbled themselves and obeyed the Monition of the Ordinary, which when it is done and the Church and party both satisfied, then is the Ordinary to absolve the party and to certify the same to the said Chancery. Whereupon a writ is to be directed as before for the release of the parties imprisonment, which writ is called Breve de Excommunicatio deliberando. To this punishment are they subject which have contracted spousals de præsenti and afterwards refuse to undergo the holy bond of matrimony."

VI

SHAKESPEARE AND WHITGIFT

WILLIAM SHAKESPEARE'S marriage licence is not the only document in which Whitgift, in his official capacity, is named in connection with the poet's affairs. As Archbishop of Canterbury he was authorized to license books and pamphlets under the injunctions issued by Queen Elizabeth on coming to the throne. After his translation from Worcester to Canterbury in 1583, Whitgift sent out certain Articles, including one "against printing and publishing of books and pamphlets without licence of the Archbishop or Bishop." In 1593 Shakespeare's Venus and Adonis, which was published by Richard Field, a Stratford man, was licensed by the Archbishop and entered in the Stationers' Register. Fo. 2976:

RICHARD FFEILD

Assigned over to master Harrison senior 25 Junij 1594.

xviii Aprilis

Entred for his copie under th[e h]andes of the Archbisshop of Canterbury and master warden Stirrop, a booke intituled Venus and Adonis. vjd s.2

It is not known in what form the licence was given, as the original document has not been preserved; but it must have been signed by the Archbishop. That Whitgift probably made himself acquainted with the nature of the poem dedicated to Lord Southampton is indicated by his close personal

1 Strype, Life of Whitgift, i. 232.

2 Dr. Edward Arber, A Transcript of the Registers of the Company of Stationers, London, ii. 630.

WHITGIFT AS LICENSER OF BOOKS 199

oversight of books and pamphlets entered with the Stationers' Company. In the Warden's accounts for the year ended July 10th, 1587, appears a sum of xiis "layde out in charges to procure a copie for my Lord of Canterburye of a popishe booke which was in pryntinge." "Item paid for goinge and comminge by water to Lambeth iij severall tymes and for other busynes about the Cumpanyes affayres at that time— iiis vd." Accounts for the year ended 10 July 1588. this entry Dr. Arber appends a note: "This and other like entries show that Archbishop Whitgift kept the officers of the Company pretty busy at work." "Item paid in search at Billingsgate iij dayes for bookes that came out of Scotland beinge ij barrelles and ij fyrkins delivered to my lordes grace (of Canterbury) xjs viijd." Accounts for year ended 10 July

1594.1

1 Dr. Arber's Transcript, i. pp. 520, 526, and 567.

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