The Tragedy of King Richard 111 (not by William Shakespeare)
Part 2 – “… the corruption of a blemished stock “ (continued)
Whatever the truth of bishop Stillington’s revelation, it could be argued that the passage of Titulus Regius through Parliament put the matter beyond doubt. However, that would be an overly simplistic argument as there were and still are legal objections to the disinheritance of Edward IV’s children, Indeed, the law governing this issue is as controversial as the facts. In the twentieth century the arguments against king Richard’s succession seem to have coalesced into three broad elements:
- First, under fifteenth century Canon law the pre-contract even if true does not on these facts bastardize Edward IV’s children;
- Second, even if Edward IV’s children were correctly declared to be bastards, it does not raise Gloucester’s position in the line of succession, he was still behind Clarence’s son Edward of Warwick as heir to the throne; and
- Third, neither the assembly of MP’s who petitioned Gloucester on the 25 June 1483, nor the subsequent Parliament that approved Titulus Regius had jurisdiction to determine the validity of Edward IV’s marriage to Elizabeth Grey, or the legitimacy of their children.
Professor Mortimer Levine raised these issues first in 1959 and again in 1973. Since then, historians on both sides of the debate about king Richard have followed him slavishly.
On these facts even if true, 15th century Canon law does not bastardize Edward IV’s children
Under this heading, Levine makes three subsidiary points, which I will deal with individually. First, he argues that as Lady Eleanor Butler died on the 30 June 1468 the pre contract could not bastardize either Edward V or his brother Richard duke of York who were both born after her death. He relies on the principle in English matrimonial law that bigamy ceases once one of the spouse’s dies. On this argument it follows that after 30 June 1468, no objection could be raised against the validity of Edward’s marriage to Elizabeth Grey (nee Woodville) or against the legitimacy of their children born after that date.
That, of course, is the law today. However, it was not the law in 1483. Then, under canon law, adultery when coupled with a present contract of marriage was an impediment to the subsequent marriage of the adulterous couple. Based on these facts, the law presumed that Edward had ‘polluted’ Elizabeth by adultery; consequently, they were forbidden from marrying at any time in the future, even after the death of Eleanor Butler. To modern eyes, this seems harsh, even unjust, and so it also seemed to medieval canonists. There were exceptions to this rule, which were intended to mitigate its effect on an innocent party in a bigamous marriage. For example, if Elizabeth Grey did not know of Edward’s previous marriage to Eleanor Butler, she would not be committing adultery knowingly and there would be no impediment to her marrying Edward after Eleanor’s death. Of course, whether this exception applied depends on facts we cannot now prove: did Elizabeth know about the pre contract when she ‘married’ Edward? Unhappily for Edward and Elizabeth no investigation of the facts was or is necessary since the application of this exception rested on another legal presumption: that Elizabeth acted in good faith. As her marriage to Edward was clandestine, the law presumed bad faith on her part. Thus, she could not (in 1483) avail herself of its protection.
Second, Levine dismisses the clandestinity of this marriage as a matter of no consequence. He argues that clandestine marriages are indisputably valid, binding on the parties and enforceable in law. He is right in principle, but he has over simplified the law in 1483 and, in Prof Helmholz’s words, “moves too quickly to the conclusion that the children were legitimate”. Unlike modern times, in the fifteenth century, questions of legitimacy were not determined solely on the basis of whether the parents were validly married. There were many subsidiary rules used to determine legitimacy, the most famous being ‘legitimization by subsequent marriage’. This rule also relied on the parents’ good faith. The reasoning was that parents and children should not be penalized for their ignorance of an impediment. If one of the parents was unaware of the impediment, the children of that union were presumed to be legitimate in law. However, it is unnecessary to delve into this issue too deeply as the clandestinity of Edward and Elizabeth’s marriage raises the presumption of bad faith, which puts them outside this rule. If the marriage had been open, with banns declared, people would have had an opportunity to object and Edward’s previous marriage to Lady Eleanor Butler may have come to light. Contrary to what Levine says, the secrecy of their wedding is far from irrelevant; it goes to the heart of the problem of their children’s illegitimacy.
Third, Levine argues that king Richard’s claim has come too late. Edward and Elizabeth “ had lived together openly and were accepted by the Church and the nation as man and wife.” That is true. Then as now, matrimonial law recognized the validity of what we would call a ‘common law marriage’. It was also possible to presume the legitimacy of any offspring in certain circumstances. However, the problem for Edward’s children continues to be the secrecy of their parent’s wedding. The presumption of validity only extended to marriages conducted in facie ecclesie. Furthermore, canon law specifically allowed questions of bastardy to be raised after the parents’ deaths, in order to settle issues of inheritance. Finally, on this point it was and is a precept of English law that any act that is inherently wrong cannot be made right by its continuation over a long time. Far from making things better, Edward’s nineteen-year cohabitation with Elizabeth made them worse.
Edward of Warwick was the rightful heir to the throne
As the youngest son of Richard duke of York, Gloucester did not expect to inherit the throne. Before him in the line of succession events were his brothers and their heirs. However, in 1483, Edward had died and his children were declared to be bastards. Clarence was executed in 1478 for treason, and attainted. According to Titulus Regius, Clarence’s eight-year-old son Edward of Warwick was barred from succeeding due to his father’s attainder.
Levine challenges the view that young Edward of Warwick was barred from succeeding. “The bastardization of Edward IV’s children was not enough”, he argues, “to give Richard the throne. Still before him in the hereditary order were the children of his elder brother Clarence: 8 year old Edward and 10 year old Margaret.” There are two limbs to Levine’s argument. First that Clarence’s Act of Attainder only specifically barred Edward of Warwick from inheriting his father’s ducal title and second, the common-law principle against attainted people from inheriting, does not apply to the royal succession. By way of example, he cites Henry VI and Edward IV, both of whom succeeded to the throne after being attainted.
Levine regards Clarence’s attainder as unimportant, as an excuse to bar Warwick from succeeding and a legal pretext for Gloucester’s usurpation. I believe that he has seriously underestimated the importance of the attainder and the difficulties posed for young Warwick. Professor Lander provides an apt appreciation of the nature of the attainders passed on the Yorkists in 1459 “ They were to suffer the most solemn penalty known to the common law. Treason was the most heinous of all offences. Its penalties ruined the traitor’s descendants as well as the traitor himself. The offender was held worthy of death inflicted with extremities of bodily pain…his children, their blood corrupted, could succeed to neither the paternal nor the maternal inheritance. The traitor died in the flesh, his children before the law.” The children of an attainted traitor lost all their civil rights. They had no status. Its true, that that Henry VI and Edward IV succeeded to the throne after they were attainted, but they both had powerful armies at their back to enforce their right. In 1483, nobody was interested in supporting the attainted eight-year-old Warwick, who was incapable of ruling England. It is quite possible that if a strong faction of nobles had supported him, his attainder might have been reversed. However, that never happened.
Parliament had no jurisdiction to determine the legitimacy of Edward IV’s children
Based on a proper construction of canon law in England in 1483, only an ecclesiastical court could determine the legitimacy of Edward IV’s children, and they had not been asked to do so. As a secular assembly, Parliament had no authority to determine the issue of legitimacy. That is the gist of the argument against Titulus Regius. It is essentially little more than a lawyer’s point based on the notion that the succession of the English crown could be decided by a court of law. It is true that English common law courts when hearing inheritance disputes habitually remitted questions of legitimacy to the ecclesiastical courts for judgment. It is also true that in the fifteenth century civil Judges were usually careful not to encroach on the church’s rights or authority, especially where spiritual matters were concerned. Nonetheless, the exclusivity of canon law in the ecclesiastical courts had not stopped Parliament passing statutes, which not only restricted the jurisdiction of that court but also superseded canon law. By the last quarter of the fifteenth century statute law had surpassed common law and some canon law in importance. The view that parliamentary statutes bound judges was prevalent even then. The point is that, in the rush for a judicial decision, we cannot ignore the constitutional power and position of Parliament as the country’s supreme legislative body . Anyhow, even if the matter had been decided in court, king Richard had the stronger case.
The draftsman of Titulus Regius was obviously a lawyer who appreciated the jurisdictional point, since he provided a legal answer to it. By inserting clauses stating that the invalidity of Edward IV’s marriage to Elizabeth Grey was a matter of public notoriety, the draftsman reversed the burden of proof. . In law, if something was so well known as to be notorious ‘neither witness nor accuser is necessary’. In this case, the draftsman of Titulus Regius was putting the onus on Edward IV’s children to make the case that they were legitimate. That meant there was no need for king Richard to test the children’s’ illegitimacy in a Church court. However, no application for relief was made by or on behalf of the children.
This case was, in legal terminology, sui generis (unique). Quit apart from the underlying secular questions of inheritance under feudal law, it involved the royal succession for which there was no legal precedent. It was not just a legal problem; it was also a political one. The royal succession was a matter of national importance. Following the death of a king, time was of the essence. His successor had to assume the reins of government speedily to ensure the peace and defence of his realm. Litigation in this situation would have been unduly time-consuming given the urgency. Moreover, a purely legal judgment was unlikely to resolve the factional dispute underlying this whole episode. The question of the succession could not be decided in a legal vacuum that ignored the political context in which the whole question of Edward V’s legitimacy arose. Ultimately, a purely legal solution was not viable in the political environment of 1483.
Actually, king Richard’s succession was never even debated by parliament. There may well have been discussion on the 25 June when the petition was drafted, but that was a meeting of MPs; it was not a parliament. The Parliamentary Roll for the 1484 sets out the bill (Titulus Regius) in full. It adds simply that the bill was read, heard and fully understood by everybody present, and that the lords and commons agreed to it. As Rosemary Horrox points out “The enrolled text becomes a statement of the king’s right (and a very detailed one), but there is no suggestion that it was the king’s statement of that right. As presented here (in the Parliamentary Roll), Richard is entirely passive: his only input to receive the bill and send it to the commons for approval. The lords then gave their assent, and the king, with that assent declared the contents of the bill (and therefore the Roll) to be true.” It would seem that king Richard was deliberately distancing himself from the bill. This may have been in part due to his realization that the decision to allow Parliament to determine the validity of Edward IV’s marriage was contentious. It is also worth noting Horrox’s later opinion that although parliament seems to be acquiescent “… the impression from the Roll is that this was something to be earned. There is no suggestion, as the hostile Crowland Chronicler insisted, Richard was browbeating parliament from a position of strength.” I have little doubt in my own mind that Parliament was entitled to pass king Richard’s Act of settlement. The overriding constitutional importance of Parliament as the supreme English law–maker enabled it by virtue of its statute making powers to change (in this instance) the jurisdiction for dealing with the royal succession. That was a question of such weight and importance that it transcended the law of the ecclesiastical or civil courts. It is no coincidence that it was thought necessary to get Parliamentary consent to every deposition of an English king since Edward II.
It is inevitable that some people will think there is something unjust and dishonest about depriving these children of their rights without them being heard. It is this perception of legal trickery and sharp practice that does so much to harm king Richard’s reputation. The notion of ‘due process’ is the cornerstone of our justice system and the British sense of fair play. Sympathy for Edward IV’s children is understandable; however, to blame king Richard rather than the situation is a sentimental view that flies in the face of the political reality in fifteenth century England. There was clearly no appetite in Parliament for a boy-king in such highly charged times, especially one controlled by the Woodvilles. His accession in these circumstances would have led to the continuation of civil war.
. Mortimer Levine- Tudor Dynastic Problems 1460-1571 (George Allen and Unwin 1973), especially at pages 28-31. Professor Levine is a historian and not, in the legal sense, an expert witness on 15th century Canon law in England.
. In this essay I am, merely summarising three Ricardian articles responding to Levine’s arguments. First. Mary O’Regan – The Pre-contract and its Effect on the succession in 1483 (The Ricardian) Vol IV, No 54 (Sept 1976) at pages 2-7; this is reproduced in J Petre (ed) – Richard III: crown and people (Richard III Society 1985) at pages 51-56; also, Anne Sutton- Richard III’s ‘tytylle & right’. A new discovery (The Ricardian) Vol IV, No 57 (June 1977) at pages 2-8 , which is also reproduced (with subsequent correspondence) in Richard III: crown and people at pages 57-65. Also R H Helmholz – The Sons of Edward IV, a Canonical Assessment of the Claim they were Illegitimate, which is published in PW Hammond (ed) – Richard III: loyalty, lordship and law (Richard III and Yorkist Historical Trust 1986) at pages 91-103.
. J R Lander – Government and Community 1450-1509 (Edward Arnold 1980) at page 203; see also Professor J G Bellamy – The Law of Treason in the Later Middle Ages (Cambridge UP 1970) at pages 8-9, 13 and 21. Although the punishment of traitor depended on royal clemency, it usually involved a particularly gruesome, humiliating and painful death and forfeiture of everything the traitor owned. The children of an attainted man could inherit nothing from their father; as professor Bellamy points out, if he succeeded to anything after the attainder, it would happen by grace rather than right. One commentator even questioned why a traitor’s children should be suffered to live at all.
 See Charles Ross – Edward IV (BCA 1975) at page 155, in which professor Ross discusses Clarence’s exemplification as Henry VI’s heir. See also Levine at pages 26-27 for his opinion. It is interesting to ponder young Warwick’s wider significance as a Yorkist heir once Titulus Regius was repealed. Henry VII’s response was to keep the hapless Warwick imprisoned in the Tower until he was old enough to be decently executed.
 Interestingly that was not the law or the practice in continental Christendom, where secular courts had long been determining issues of legitimacy and inheritance together.
. SB Chrimes- English Constitutional Laws in the fifteenth century (Cambridge 1936) at pages 285-288. See also RG Davies and JH Denton (eds) – The English Parliament in the Middle Ages (Manchester UP 1981) at pages 146,149 and 153.
.RE Horrox (ed) – Parliamentary Rolls of Medieval England (ed C. Given-Wilson) in sixteen volumes; Vol XV, Richard III Parliament, 24 January 1483, at pages 14 and 15. (PROME).
. See PROME; ibid. See also Helmholz at page 98.
. Anne Curry and R.E. Horrox – Henry VI Parliament, October 1460 in PROME, Vol XII at pages 510 and 518. On the 18 October 1460, Parliament asked the judges to give their opinion about the respective merits of Henry VI’s royal title and that of the duke of York’s, which has been presented in Parliament. After considering the matter for two days, the judges refused to give an opinion on the grounds that they could only judge cases bought before them in the courts party against party, and could not advise as counsel. They added for good measure that “…in particular because the matter was so high and touched the king’s high estate and regality which was above the law and surpassed their learning that they dared not enter a discussion of it for it pertained for the lords of the king’s blood and the peerage of this land to discuss and intervene in such matters.“ Even though the situations in 1460 and 1483 were different, the principle that the royal accession was not susceptible to a judicial decision, but could only be decided by the king and his peers was well established.
. See PROME (R Horrox Ed) Introduction- Richard III Parliament, 24 January 1483, Vol XV at pages 5 and 7
. See Chrimes at pages 185-195 for the transcript of John Russell’s speech for the opening of king Richard’s only Parliament. See also Davies et al at pages 145-157 for an excellent summary of the constitutional importance of this parliament. It was the ultimate expression (at the time) of the evolving concept of parliament as the supreme representative assembly of the country and the king’s highest court in the land. The responsibility of the monarch to rule with the consent of the three estates of parliament was spelt out in unequivocal terms.
. For the text of Titulus Regius see Rolls of Parliament (Rotuli Parliamentorum), 6 volumes (London 1776-77) vol. 6, at pages 240-42. A photographic facsimile of the original (with the seal shown) is available online at http://partyparcel.co.uk . There are two versions: the first in Middle English and the second with modern spelling. Despite some suggestion that Titulus Regius is not an ‘Act of Parliament’, it clearly is. It states the unarguable ‘law’ of the land insofar as it relates to king Richard’s title and is described in the Statute Book as an ‘Act of Settlement’. An ‘Act of Parliament ‘ is defined at: http://www.parliament.uk/about/how/laws/acts/