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What happens when you conduct original research into mediaeval canon law?

If you are PROFESSOR R.H. Helmholz, you conclude that: “
The argument in canon law was made up of two strands of evidence, both equally important. First that there had been a contract of marriage between Edward and Lady Eleanor Butler (born Talbot) before he married Elizabeth Woodville in May 1464. This would be understood to have consisted of vows exchanged in the present tense, ‘I do marry you’ — no witness or priest was necessary — followed by intercourse. The second fact of Richard’s claim — often forgotten by commentators — was that Edward’s marriage to Elizabeth was clandestine, private, before only a few witnesses, with no banns called and no participation of the king’s ministers.
The fact of the pre-contract cannot now be proved, although it could have been known to many persons in 1483; but there is no doubt that Edward’s marriage to Elizabeth was clandestine. Eleanor Talbot-Butler was not available to testify to the precontract as she had died in 1468. She had in fact died before the boy children of Edward IV were born, and thus under modern law, the adulterous nature of Edward’s second union would have ended before they were born. This did not help their legitimacy in the fifteenth century, however: ‘adultery, when coupled with a present contract of marriage’, was an impediment to the subsequent marriage of the two adulterers. Thus even after Eleanor’s death, Edward could not have married Elizabeth under canon law. This harsh judgement could have been mitigated if Elizabeth had not known of Edward’s prior marriage – in this case the two could have remarried after Eleanor’s death.
But all possible mitigation was rendered irrelevant by the clandestine nature of Edward’s and Elizabeth’s marriage. Although a clandestine marriage was accorded validity in many circumstances and the children born of such a marriage might be considered legitimate, the clandestine nature of this particular marriage actually made the children illegitimate. Clandestine marriages were deplored because people, between whom impediments existed, might contract marriage in error or by fraud; the calling of banns was aimed to publicise a proposed marriage and prevent such misfortunes, and to proclaim the good faith of the contracting parties. Edward’s hasty and secret marriage to Elizabeth proclaimed his bad faith: if the banns had been called and his councillors informed, the impediment of the pre-contract might have been revealed and circumvented.” (Loyalty, Lordship and Law, pp.91-103)

If you are PROFESSOR David Cressy, your conclusions are widely referenced here: https://murreyandblue.wordpress.com/2015/06/25/even-by-tudor-and-stuart-standards-edward-ivs-marriage-to-elizabeth-woodville-was-invalid/

If you are DOCTOR John Ashdown-Hill, you conclude that: “It may also be as well to state very clearly at this point that the relationship which was alleged between Edward IV and Eleanor Talbot in the fifteenth century was neither more nor less than marriage. The Act of Parliament of 1484 is quite explicit on this point (see Appendix 1). The widespread use of the term precontract in relation to this union is not particularly helpful, since its meaning is very frequently misunderstood. It is often taken to mean something like “betrothal”, but this is emphatically not what precontract means. It is, in fact, a legal term which can only be applied retrospectively, the contract to which it refers being precisely a contract of marriage. Such a contract could, of course, only become pre- with hindsight, when viewed in relation to a subsequent, second (and necessarily bigamous) contract of marriage with a third party.” (Eleanor, the Secret Queen, p.103). p. 106 also explains how per verba de futuro could validate a secret marriage at the instant of consummation.

If you are DOCTOR Helen Castor, your conclusions will be very similar, quoted on here: https://www.youtube.com/watch?v=saE-RLwfWpU

Of course, if you are a denialist who can’t be bothered to do any research but just copy sources you know to be dubious, you can form whatever conclusions you like.

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8 thoughts on “What happens when you conduct original research into mediaeval canon law?

  1. Kalina on said:

    As a “denialist” I have such supposition:

    After Bosworth the real usurper Henry Richmond caused a “low” which would be considered to day as tyrrannic and illegal: all survived supporters of antoined and crowned King Richard were proclaimed “traitors” and executed. Cause? They fought against ‘king” Henry Richmond on a side “usurper” Duke of Gloucester:))))
    I have never read any sign of protest against this impudent document in English historiography! All instead try to explain the claims of Richard to the English throne by the illegal status of his nephews! Richard became King because three English estates offered him the crown. And English parliament confirmed it with Titulus Regius. And this is the supreme claim of Richard. Henry VII knew it very well ordering to destroy every trace of it. If Edward,s sons were illegitimate or not – it was the matter of English parliament not Richard.

    Liked by 1 person

  2. Esther on said:

    First, it was my understanding that Parliament did pass a law that anyone serving the king at the time could not be convicted of treason under a later king. I doubt that this law did anyone any good; Empson and Dudley, for example, were beheaded by Henry VIII for their work in carrying out the financial tyranny of Henry VII, and Northumberland’s obedience to the wishes of Edward VI (that he be succeeded by Lady Jane Grey) did not help him when Mary became queen.

    Second, I always understood that the secret nature of Edward’s “marriage” to Elizabeth Woodville was not a separate ground for holding it invalid; instead, the secrecy made the prior relationship with Lady Eleanor continue as a valid basis for attack until after Edward’s death. So, if Edward had married Elizabeth Woodville publicly, and no one mentioned Lady Eleanor at that time, they would be barred from asserting the pre-contract as a reason for bastardizing Edward’s children years later. Is this not correct?

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    • You are correct that Richard was King both as his brother’s legitimate heir and as chosen by the “Three Estates”. As Gairdner has written, “it was almost a constitutional election”.

      Liked by 1 person

      • Kalina on said:

        The egg almost fresh…:))) And what the English historians say today? (I do not ask for the opinion of Mr Starkey as well as of Annette Carsson and dr Ashdown-Hill of course:))) Was any “constitutional election” in XV c. in England (it happened in the Anglo-Saxon period – among a members of royal family)?

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    • “First, it was my understanding that Parliament did pass a law that anyone serving the king at the time could not be convicted of treason under a later king.”

      Actually, Henry VII himself had that law passed later on – he didn’t want HIS heirs/supporters to be the victims of back-dated treason…

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      • Kalina on said:

        Correctly and sensibly:)) He need not this “law” any more. He already got rid of supporters of late King – it means – his enemies as well as his potential rivals to the throne, between them – very young Edward Warwick and John Plantagenet. What was happened with Katherine Plantagenet is uncertain.

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  3. sighthound6 on said:

    In effect, Parliament developed the right to give the Crown to any random person it chose, but obviously that person was usually part of the royal house.

    For example: Henry IV, 1399. Not the right heir, but Parliament, overawed by his army, gave him the crown and subsequently passed succession statutes granting the Crown to his heirs. (Which would have been redundant had he been King by right of birth.)

    1460 – Act of Accord. Parliament made Richard, Duke of York, heir, setting aside the right of Edward, Prince of Wales.

    1483 – Parliament – initially acting as a Convention, technically speaking – gave the crown to Richard III, setting aside the claim of Edward V. And subsequently set out a statute which explained Richard’s claim.

    1485 – Parliament gave crown by statute to Henry VII even though he had no hereditary right.

    1535 – Thomas More, in conversation with Richard Rich, mentions in passing that he would accept Richard Rich as king if Parliament made him so. Thus a leading lawyer – perhaps *the* leading lawyer – noted the Parliamentary basis of the crown.

    Of course, most of these statutes, if not all, were passed under some form of coercion, or alternatively, a recognition of the reality of politics at the time. But together, they undoubtedly established the principle that the monarch is a creature of statute. A view strengthened by the Bill of Rights 1689, and the Act of Settlement 1701. The last King of England (I cannot speak for Scotland) with an unquestioned right to the throne was Richard II.

    Liked by 2 people

    • white lily on said:

      Agree, sighthound6. Parliament’s “power” to force a change in the sovereign may even go back as far as Edward II in 1327:

      “[Up to this point in time,] There was no established procedure for removing an English king.[286] Adam Orleton, the Bishop of Hereford, made a series of public allegations about Edward’s conduct as king, and in January 1327 a parliament convened at Westminster at which the question of Edward’s future was raised; Edward refused to attend the gathering.[287] Parliament, initially ambivalent, responded to the London crowds that called for Prince Edward to take the throne. On 12 January the leading barons and clergy agreed that Edward II should be removed and replaced by his son.[288] The following day it was presented to an assembly of the barons, where it was argued that Edward’s weak leadership and personal faults had led the kingdom into disaster, and that he was incompetent to lead the country.[289]

      “Shortly after this, a representative delegation of barons, clergy and knights was sent to Kenilworth to speak to the King.[290] On 20 January 1327, Henry of Lancaster and the bishops of Winchester and Lincoln met privately with Edward in the castle.[291] They informed Edward that if he were to resign as monarch, his son Prince Edward would succeed him, but if he failed to do so, his son might be disinherited as well, and the crown given to an alternative candidate.[292]”

      From: Phillips, Seymour (2011). Edward II. New Haven, US and London, UK: Yale University Press. ISBN 978-0-300-17802-9.

      Liked by 2 people

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