Edward IV was not the only British late mediaeval king to play fast and loose with canon law. The other case dates from a century and a quarter before 8 June 1461 and had consequences for that king’s heirs; in particular his grandson:
Today in 1337, a first son, John, was born to Sir Robert Stewart, the Paisley-born High Steward of Scotland, and Elizabeth Mure at Scone. Sir Robert was heir presumptive to his uncle, David II, but David was eight years younger and widely expected to have children of his own. He was, indeed, to marry twice but failed to leave any heirs – although being imprisoned in the Tower for eleven years after the 1346 battle of Neville’s Cross didn’t help much, Sir Robert couldn’t have predicted this in 1336, when he undertook a marriage of sorts to Elizabeth Mure.
In the aftermath of Neville’s Cross, as Guardian of the Realm to his absent uncle, Sir Robert and Elizabeth sought to regularise their position under canon law through a dispensation and married properly in 1349. By this time, many of their four sons and six daughters had already been born and they were, arguably, legitimised by the marriage, which ended six years later when Elizabeth, now formally Lady Stewart, died. Sir Robert swiftly married Euphemia Ross, by whom he had two more sons and two daughters and is reckoned to have had eight illegitimate children as well. Jean Stewart, a daughter from his first marriage, married Sir John Lyon of Glamis, from whom the late Queen Mother was descended.
Shortly after this second marriage, David II was ransomed under the Treaty of Berwick, which was a Scottish town until Richard of Gloucester’s 1482 invasion. Joan “of the Tower”, his first wife and Edward III’s sister, died in 1362 and David married Margaret Drummond in 1364, whom he “divorced” in 1370 although this was reversed by the Pope. Although they had been on bad terms, David II died in 1371 and Sir Robert succeeded him as Robert II, to reign for nineteen years.
John, the eldest of his fourteen children, was created Earl of Carrick and was influential during his father’s reign and succeeded him as Robert III in 1390, to be crowned on his birthday. His reign was largely dominated by his brothers, Robert Duke of Albany and Alexander Earl of Buchan. His elder son, David Duke of Rothesay, died in 1402 in Albany’s custody at Falkland Palace. In 1406 he sent his younger son, James, to France only for English pirates to capture him.
Robert III died when he heard this and the new prisoner in the Tower succeeded as James I. He was held there for about seventeen years and returned with Joan “Beaufort”, Henry V’s apparent cousin, as his queen. Albany’s son and successor, Murdoch, two of his sons and his father-in-law were executed for delaying James’ release and the Lancastrian policy of religious persecution was adopted.
From 1436, a plan to depose or kill James was formulated and it involved Walter, Earl of Atholl and Caithness, a septuagenarian son of Robert II’s Ross marriage. It seems highly likely that he was motivated by a disbelief in the validity of the Mure marriage and thus the legitimacy of the offspring of it. The “Avignon” conspirators killed James I at the Blackfriars in Perth during February 1436/7 but his son was crowned and the House of Stewart survived. The surviving 
plotters, including Atholl, were tortured and executed.
So were John of Carrick, his siblings and descendants legitimate? It seems never to have been determined by the Church except through the 1347 dispensation. Carrick’s line has ruled Scotland ever since and England from 1603, except for the interregnum whilst Henry VII, a scion of bastardy himself, married his daughter Margaret to the senior Mure-Stewart: James IV.
That petition:
“The kings of France and Scotland, bishops William of St. Andrews, William of Glasgow, William of Aberdeen, Richard of Dunkeld, Martin of Argyle, Adam of Brechin, and Maurice of Dunblane. Signification that although Elizabeth Mor and Isabella Boutellier, noble damsels of the diocese of Glasgow, are related in the third and fourth degrees of kindred, Robert Steward of Scotland, lord of Stragrifis, in the diocese of Glasgow, the king’s nephew, carnally knew first Isabella, and afterwards, in ignorance of their kindred, Elizabeth, who was herself related to Robert in the fourth degree of kindred, living with her for some time and having many children of both sexes by her; the above king and bishops therefore pray the pope that for the sake of the said offspring, who are fair to behold (aspectibus gratiose), to grant a dispensation to Robert and Elizabeth to intermarry, and to declare their offspring legitimate.
To be granted by the diocesan, at whose discretion one or more chapelries are to be founded by Robert.
Avignon, 10 Kal. Dec. 1347“
murreyandblue 
A very interesting post, but it prompts an intrigued query from me. Not that I disagree or challenge anything, just that when, exactly, did the law about legitimacy change?
From the viewpoint of a lay person, which I definitely am, the case in this post and the matter of the Beauforts, both present a puzzle. I recall that it was only in the latter decades of the 20th century that children born prior to their parents’ marriage remained unalterably illegitimate. They could not suddenly, magically, become legitimate, no matter how many times their parents eventually took their vows. If your mother and father hadn’t wed by the time you entered the world, you were baseborn. End of argument. Subsequent marriage made no difference – only the children born after the official union would be legitimate and stand to inherit.
Well, they could be left goods, but certainly in the case of the aristocracy, they could not inherit titles or the lands etc. that went with the title. No matter how many illegitimate children were born to a nobleman, if he didn’t have a legitimate son, everything would go to the nearest legitimate male heir…a nephew, for instance. So, out of the window goes that beloved theme of historical novels, where the irascible Earl of Whatnot decides to bypass his disliked legitimate children and leave everything, title and all, to his handsome, brooding son by a favourite scullery maid! The next Earl of Whatnot could not be chosen, he would be the eldest legitimate heir. Full stop. The earl’s loathing of his trueborn children could not interfere with the law of succession, no matter how much he wished otherwise. The famous and fascinating 18th/19th century case of Lord Berkeley and Mary Cole comes to mind.
The Beauforts did not threaten John of Gaunt’s legitimate son, the future Henry IV, because he was the eldest son anyway, but what if he’d been younger than them? What if Gaunt first dallied with the governess Katherine Swynford, without marrying her, and then chose instead to wed the great heiress, Blanche of Lancaster, producing Henry of Bolingbroke? Legitimising the Beauforts would not have changed anything, younger child or not, Henry would still have inherited all his father’s titles and lands, and could thumb his nose at the Beauforts. And it was the Lancaster inheritance that made Gaunt the greatest magnate in the realm.
Gaunt’s Beaufort brood could NEVER get in on that greatness, because it came through Blanche, whose blood they did not share. When she died, Gaunt had the lot, and thus, in due course, Henry had the lot. Even had he wanted, not even Gaunt could brush Henry aside in favour of his legitimised eldest Beaufort son. If they had been born of a lower class, I don’t doubt the Beauforts would have remained bastards from birth to death. In the eyes of many, they remained that anyway.
The offspring of John of Gaunt and Katherine Swynford should not have been legitimised, as was clear when it was felt necessary to take the precaution of expressly forbidding them from the throne. Because if they were legitimate, why should they NOT take their ‘rightful’ places among John of Gaunt’s heirs? Although not, of course, in line for the dukedom of Lancaster, thanks to Blanche. All they had was Gaunt’s blood. To me, the qualification restricting them from the throne signifies that the Beauforts were and would remain ‘bastard slips’. A real case of double standards.
If my reasoning on this is wrong, I’m sure I’ll soon be told!
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Generally speaking, a child born to two unmarried parents can be legitimised by their subsequent marriage. Neither Sir Robert nor Elizabeth Mure had been married to anyone else and the dispensensation could retroactively regularise their position and that of their children, whereas at least three of the Beauforts were conceived when their father was married to someone else.
I will find the exact answer to your question later but the Statute of Merton would not have applied in Scotland.
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Another point regarding Gaunt’s marriage to Katherine Swynford is that they had clearly slept together outside any marriage bed, so should not have been able to marry at all. Or so I understand. Is that correct?
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They slept together whilst one or both were married to others. This is one of two factors that would have prevented Edward IV from properly marrying Elizabeth Woodville after he was widowed in June 1468, which could have been before Edward V’s birth, the other being that their invalid ceremony in 1464 had been in secret, “polluting” their relationship. Lady Eleanor was the innocent party in this matter, as her biographer explains (pp.114,136).
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English law has always been quite harsh in this sort of case until very recently. Though the Church generally – that is to say in most countries in Europe – took the line that subsequent marriage legitimised children already born to the couple, English statute and common law disagreed. This is why it is simplistic to say ‘the Church determined questions of marriage and legitimacy’. In England it did so only up to a point.
It certainly used to be the case – and may still be, but I am unsure about recent legal changes – that to inherit a peerage you had not only to be born in, but *conceived in* lawful matrimony. There were certainly cases where a couple’s eldest son did not inherit the title for this very reason.
To put it another way – to be legitimate in the eyes of the Church was one thing. To be sufficiently legitimate in the eyes of Parliament to inherit a peerage was quite another.
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Elizabeth II’s cousin, George Lascalles, Earl of Harewood, had a son by his second wife while still married to his first wife – the same situation as with John of Gaunt. That son, Mark Lascalles, is not in the line of succession to the throne, nor did he inherit his father’s title, though he is still an Honourable. I doubt that these facts trouble him very much, as he is pretty far down the list in both cases. He has three older half-brothers, who now have ‘issue’ of their own.
Surprisingly, George Lascalles and his second wife, Bambi (!) had to be married in the USA. As he was divorced, they could not marry in the Church of England, and could not be married in a Registry office, as he was Royal. Or at least, so says Wikipedia.
And it seems that Mark, though not legitimate, is still under the Royal Marriages Act, and has to have the Queen’s permission to marry. Go figure!
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The current Lord Harewood, George’s son David, had two children before he married his first wife – one of them a son. Because he was born out of wedlock, this son only has the style of a younger son, The Hon. It is the Earl’s second son, born after the marriage, who is Viscount Lascelles. BTW, since the new Marriage Act of 2013 only the first six in line to the throne now require the monarch’s consent. At present, they are The Prince of Wales, The Duke of Cambridge, Prince George of Cambridge, Princess Charlotte of Cambridge, Prince Henry of Wales, and The Duke of York.
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Something I didn’t know. Why doesn’t the Royal family tell me these things?? If Mark married before 2013, possibly he would have needed permission?
Anyway, thanks for setting me straight, Laura.
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p.s. Wikipedia says the name Lascalles comes from the French “l’aiscelle” meaning “armpit.” Can any French speaker out there tell me if this is correct?
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No – it is a toponym. The family takes its name from a place name. A dialect form of ‘the cells’, indicating small habitation of monks. It is common in the South West.
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Just a thought…(and as an aside, there are many here more knowledgeable than I, so they may jump all over this!) and that is, simply, that almost anything someone rich enough to pay for it wanted could be obtained by the building of a cathedral (or whatever.) As to the Beauforts, conferred legitimacy except for inheritance rights didn’t work (see: War of the Roses [sarcasm intended-not a Beaufort fan!.])
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Sir Robert was quite wealthy and influential in 1347 so he could just have been persuasive enough in this case, that did not adversely involve a third party at the time – the only eventual third parties were his children by Euphemia Ross, none of whom was born for another nine years. He was still eight years older than his uncle, David II.
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