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Was the condemnation of George of Clarence a significant example of the abuse of attainder?….

The following is an extract from ‘His Grace the Steward and the Trial of Peers’, by L.W. Vernon Harcourt. 

“The proceedings in the parliament of 1477 against George, Duke of Clarence, afford us with a significant example of the abuse of attainder. Either attainder in this case was unnecessary and therefore improper, or it was resorted to for the purpose of bolstering up the judgment in an irregular trial. I have not discovered any evidence that Clarence was formally indicted, but he appears to have been arrested at Westminster, in the presence of the mayor and aldermen of the city of London, on a charge of treason made by the king himself in a verbose and not very dignified speech.1

“In the ensuing parliament Clarence was arraigned: the king, according to the continuator of the Croyland Chronicle, prosecuted in person: no one ventured to reply but the prisoner. (This last seems a somewhat unintelligent observation.) Certain persons were brought in by the crown, presumably as witnesses, but from their conduct at the trial many thought they were there to formulate accusations.2 Clarence denied the charges, but the bill of attainder was passed by the lords and commons and received the royal assent.3 

“The Duke of Buckingham was appointed steward of England to pass sentence,4 but execution was for some little time delayed: it was, to be sure, only seemly that the king should exhibit some reluctance about putting his own brother to death.

“The commons finally paid a visit to the upper house and requested by their speaker that the matter might be brought to a conclusion.5 Shortly after, Clarence was done to death. The manner of his dying was never made public; but the story of the wine-butt has at least the merit of being strictly contemporary gossip.6 

1 Chron. Croyland, ed. Bohn, p.479

2 Ibid.

3 Rot. Parl., vol. vi, pp. 193-5

4 Patent Roll, 17 Ed. IV, pt. 2, m. 19

5 Chron. Croyland, ed. Bohn, p.480

6 Mentioned by Fabyan, ed. 1811, p. 666

“Drowned in Malvesay.” Chronicles of London, ed. Kingsford, p. 188.

So, now the questions. Was the attainder of George of Clarence, the brother between Edward IV and Richard III, improper/irregular enough to be questionable in law? Was the court packed with false witnesses? Did Edward have so little real evidence against George that he had to bend the rules? The king had his way back then, of course, but in the present day, could a good lawyer present a convincing case for a mistrial? George might still be attainted and condemned in a second trial, but Edward would have to take more care. And, who knows, he might even have second thoughts about committing fratricide.

And finally, if the original trial was sufficiently improper/irregular, and therefore not lawful, would it mean that Clarence’s son, Edward, Earl of Warwick, was the rightful and legal heir of Edward IV, not Richard, Duke of Gloucester?

I do not believe for a moment that Richard thought any such thing. He saw himself as the rightful king and acted accordingly. In good faith. But L.W. Vernon Harcourt has made me think.

Postscript 26th April 2017: I am adding this because it suggests to me that L.W. Harcourt Vernon is correct to question the legality of George’s trial, because the Commons thought so too. In Judicature in Parlement by Henry Elsyng, Clerk of the Parliaments, I found the following. (Apologies for the Latin, which I can only vaguely follow, but the paragraph that follows it more or less explains.

“[fol. 75] Anno 18.E.4. George Duke of Clarence was arraigned in full Parlement. There is noe mencion therof in the roll but in a manuscript story of that tyme written by a Priour of Crowlande (who was a Pryvye Counsellor to .E.4.) yt is sayd, Tam tristis visa est disceptatio ea habita inter duos tantae humanitatis Germanos. Nam nemo arguit contra Ducem, nisi Rex. Nemo respondit Regi, nisi Dux. Introducti autem errant nonnulli, de quibus a multis valde dubitatur, anAccusatorum, an Testium Officiis sint functi; utra enim Ofrficia in eadem causa eisdem personis non congruent: Diluit enim objecta Dux ille per infitiationem; offerens si exauderi posset manuali defensione tueri causem suam. Quid multis immoror? Parliamentales reputantes auditas informciones sufficere, formarunt in eum Sententiam damnationis, quae ab ore Henrici Ducis Buckinghamiae, pro tempore noviter create Angliae Senescali, prolata est. Dilita est postea diu execution, quoadusque Proculotur Communitatis in Superiorem Camerum cum Sociis suis adveniens, novam eius conficiendae rei requisitionem fecerat, Et consequenter [fol. 75v] infra paucos dies factum est id, qualecunque erat genus supplicit Secrete infra Turrim Londoniarum. Utinam finis mali. Anno Domini 1478 regni vero Regis Ed.18mo./ perAnonymous in bib. Cottonae. [see 1 below]

“Here let us examine, for what illegall proceeding the Commons required this cause to be herde agayne. The author says, none argued against the Duke but the Kinge. This the commons helde to be against Lawe, That the Kinge Himselfe shoulde enforce either Article or Testimonye against a delinquent in a Capitall cause: for yt is inconvenient, that He, whoe is to have the fortfeiture of lyfe, Landes and goods should be accuser, wyttness or Judge. The Commons were present at this Tryall, and considering of the Inconvenience herof, they retourned & made this request, ut supram.

“[1] The ‘book’ was Ingulph’s Chronicle and its continuations (B.L., Ms. Cotton Otho B. XIII). The editor is grateful to Colin Tite for this identification. This manuscript was severely burned in the fire of 1731. We now have available a text based on another manuscript of the Chronicle, formerly owned by Sir John Marsham. This text was included by William Fulman in Volume I of Rerum Anglicarum Scrip;torum Veterum, printed in 1684. The modern edition (Henry T. Riley, ed., Ingulph’s Chronicle and Its Continuations, 1908) is based upon it.”

 

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A PRINCESS OF DEVON

After the battle of Bosworth, Henry VII married Edward IV’s daughter Elizabeth of York. What happened to Edward’s other daughters? Bridget, the youngest, went to a nunnery. Anne married the younger Thomas Howard (which was the marriage proposed for her by Richard III; Thomas Jr’s father Thomas still desired the marriage for his son and eventually permission was granted by Henry Tudor). Cecily’s current marriage was dissolved, and Tudor married her instead to John Welles, Margaret Beaufort’s half brother, tying her into his own family.

That only left Catherine of York.

Catherine was born in August 1479 at Eltham Palace, one of Edward’s later children. Soon after her birth Edward began to arrange a royal marriage for her to the son of Ferdinand of Aragon and Isabella of Castile; however, he died before the proposal was finalised.

Catherine, then a child of less than four years of age, went into sanctuary with her mother and many of her siblings, as the dramatic events of 1483 unfolded. Later, she emerged with her family in March 1484, when Richard III promised their safety, and proclaimed that Edward’s daughters would be treated as honourable kinswomen and eventually be married to gentlemen of birth, giving to each an estate valued at 200 marks. (He also gave Elizabeth Woodville 700 marks to live on, a little more  than her own son in law, Henry Tudor.)

Catherine remained unmarried during Richard’s short reign, although her sister Cecily was given to Ralph Scrope and  plans were being made for Elizabeth to marry Manuel, Duke of Beja. Under Henry Tudor, it was proposed Catherine would marry into Scottish royalty, taking the Duke of Ross, James Stewart, as her husband. Her mother, Elizabeth Woodville, would at the same time be given in marriage to the Scottish king, James III. However, when King James was killed in battle, his successor never bothered to pursue the prospective  English alliances.

So in 1495, aged around sixteen, Catherine instead married William Courtenay, son of Edward Courtenay. The Courtenay family had always been staunch Lancastrians but had not fared particularly well in the dynastic battles of the Wars of the Roses. Thomas Courtenay was taken in battle at Towton and beheaded at York, while his brother Henry was executed for treason in Salisbury marketplace in 1469. Another brother, John, was slain at Tewkesbury. Hugh Courtenay, from a junior branch of the family,  also was executed after Tewkesbury; it was his son Edward who then became Earl of Devon, and Hugh’s grandson, William, who married Catherine of York. We do not know if the marriage was a happy one, but together William and Catherine had three children.

However, things turned ugly  for the family in 1504. Henry VII found out that Courtenay had been supporting the claims to the throne of Edmund de la Pole, the last Yorkist heir.  William was attainted and thrown into the Tower of London, where he remained throughout the rest of Henry Tudor’s reign.

When Henry finally died, his son, Henry VIII, seemed ready to give his imprisoned uncle a rare second chance.  Henry was said to be very fond of Catherine from early childhood (it is claimed she loved children and played with him when at court) and he considered her his favourite aunt. He released William from the Tower and allowed him to resume his role in society, even carrying one of the swords of state at  Henry’s coronation. A year or so later,  he gave William back his title as Earl of Devon—although unfortunately William died only a month or two later, so never got to enjoy it.

Eager to avoid another arranged marriage, Catherine promptly swore an oath of chastity before the Bishop of London, and then retired to her Devon estates. She lived quietly in Tiverton Castle, and also at the remote Bickleigh castle, with its rare thatched Norman chapel.

Catherine died at Tiverton on November 15 1527, aged 48, and was buried in the parish church of St Peter, which stands by the castle ruins. Her arms are still visible above the door, amongst unusual carvings of sailing ships and monkeys. Unfortunately, the chantry dedicated to the Courtenays, which would probably have contained her tomb, no longer exists. She was perhaps fortunate not to lived have seen the execution of her only surviving son, Henry, in 1538–he was beheaded due to his correspondence with Cardinal Reginald Pole.

Catherine is presumed the last of  Edward IV’s children with Elizabeth Woodville to die, though of course without knowing the actual fate of the ‘princes’, this may not be the case!

Tiverton Castle can be visited on certain days throughout the summer, and Bickleigh Castle is now an attractive hotel. St James church in Tiverton is well worth a visit and open most days.

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St James, Tiverton

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Bickleigh Castle

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Tiverton Castle

Eleanor again

John Ashdown-Hill’s Eleanor, the Secret Queen was first published in 2009, detailing Lady Eleanor Talbot’s family and early life, the circumstances in which she married Edward IV, her similarities to his mistress Elizabeth Woodville (they were dark haired, older and widows of Lancastrian-inclined men), canon law and how it affected Edward’s relationships and children together with the Clarence attainder, Stillington’s translation to Bath and Wells in 1461, his imprisonment and Titulus Regius 1484. Then it described the attempted cover-up of Titulus Regius (before a copy emerged through Buck), Catesby’s execution, More’s attempt to write another lady into the story, Chapuys’ knowledge of the case and the emergence of remains that may be Lady Eleanor in Norwich, judged by her age, status and the dental evidence. It proved the marriage almost completely to the satisfaction of most open minds.Eleanor

Seven years later, it has been reissued in paperback with even more evidence. We can now know, with confidence, exactly where and when Edward married Lady Eleanor. Our attention is additionally drawn to the circumstances of her death and the arrest of two of her sister’s servants a few weeks later, such that there are reports of their executions, whilst the discovery of Richard III’s skeleton leads to further deductions about the dental evidence in Norwich. The case for the 1461 marriage is now proven, even if her corpse cannot yet be conclusively identified.

Mirror, mirror on the wall…our Richard is the fairest of them all…

Richard's Ghost - WordPress

Fairest as in being the most just…although, as always, he suffers at the hands of unjust historians.

I have been browsing through a book entitled A Short History of the English People by Cyril Ransome, published 1903. Richard gets a mixed review, even though he is accused (sometimes it is only implied) of all the usual crimes, including his definite intention to marry Elizabeth of York (and in spite of this shocking proposition, he apparently had Elizabeth Woodville’s favour!)

Of Richard, Ransome writes:

“ . . . His rule in the north had been good, and there he seems to have been deservedly popular. He was a man of great ability, but, like most of the men of his time, quite unscrupulous as to his means . . .” 

“ . . . He then boldly claimed the crown on the absurd ground that Edward’s marriage with Elizabeth Woodville was illegal, because he had already been betrothed to another lady, and the right of Clarence’s children was barred by their father’s attainder. However, as in the case of Henry IV, only a pretext was wanted, and as Richard had already secured the power, he had little difficulty in getting the title, of king. Before the end of June, a body of lords and others took it upon themselves to offer the crown to Richard, which he accepted; at the same time Rivers and Grey were executed at Pontefract Castle, in Yorkshire . . .”

“ . . . He held a Parliament, in which he passed two very good laws, one forbidding the collection of benevolences, the other the keeping of retainers; but he did not live to see them enforced . . .” 

“ . . . The armies which fought at Bosworth were very small, and very little interest seems to have been excited by the struggle. There was no question of principle between the parties, and Englishmen were as likely to get good government from one as from the other . . .” 

“ . . . In after-times it was the fashion to charge Richard III with every species of crime. (As Ransome himself does!) This was probably unjust. He was an unscrupulous man, who slew men freely if they stood in his way, but not a tyrant; and when we think of the times in which he lived and the scenes he had witnessed, it could hardly be wonderful that his scruples were not so great as they might have been if his lot had been cast in times of greater quietness . . .” 

Maybe it’s me, but Ransome seems to be giving with the right hand, then snatching it away again with the left. He feels obliged to take the usual hostile line about Richard, but at the same time is bound by conscience to offer praise. It smacks of someone who doesn’t really believe the sour things he’s writing, because the facts about Richard prove his opinion to be wrong.

Yes, I’m a confirmed Ricardian! In case anyone had doubts . . .

Richard, George, Edward and HENRY at the same wedding….?

marriage of richard of york and ann mowbray

Here is a strange identification. While seeking more information about the duel that had supposedly taken place at Richard and Anne’s wedding, I happened upon a source that made it clear the Richard and Anne in question were the little Duke of York, son of Edward IV, and Anne Mowbray, and the wedding date was 15th January 1478, at St Stephen’s Chapel, Westminster. (The source claims 1477, but it is shown that this is because the old calendar was used – the year, by our reckoning, was 1478.)

The source I refer to is Illustrations of ancient state and chivalry from manuscripts preserved in the Ashmolean museum [ed. by W.H. Black]. – Ashmolean Museum. January 1st, 1840. William Nicol, Shakespeare Press. 

https://play.google.com/books/reader?id=dGtbAAAAQAAJ&printsec=frontcover&output=reader&hl=en&pg=GBS.PA31 

On page 31 it says:- “. . . . And then, at the first side table, satt the Marquis of Dorsett; the length of the same table accomplished [i.e. occupied] with ladyes and gentlewomen; and, at the other end, my Lord of Richmond [Footnote: Henry, Earl of Richmond, afterwards King Henry VII. He was twenty two years old at the time of this festival] . . . .”

And on page vi, the writer insists that among those present were the bridegroom’s “sister Elizabeth, and the young Earl of Richmond, who but nine years afterward (exactly almost to a day) were married and seated together on the throne of England”.

This whole account is very detailed indeed, naming everybody who was present at these celebrations (including Richard, Duke of Gloucester), but how could Henry Tudor be there as well? He had been in exile since 1471, and would remain so until 1485. So the reference cannot possibly be correct. Can it?

Bearing in mind that I am NOT a historian of any sort, let us consider the title, Earl of Richmond. Please forgive any bloopers. It had been Edmund Tudor’s, and would have gone to his son, Henry (future Henry VII) but the small matter treason and attainder got in the way, and the Yorkists confiscated it in 1461. Edward IV then gave the Honour of Richmond to his brother, George, Duke of Clarence, who became the new Earl of Richmond.

Anyway, naturally enough, Henry Tudor disputed all this from exile in Brittany. He wanted his father’s title, but Edward did not oblige. The Yorkist king actually tried to get the inconvenient Lancastrian back from exile (no doubt to shove him in jail, or worse) but Henry very wisely stayed where he was.

It is totally unlikely that there would have been a truce for the wedding, with Henry trotting along, present in hand, to enjoy all the entertainments. Then trotting back to Brittany to continue his defiance from afar. It is also unlikely that the table in question was so long that its other end was actually in Brittany, so Henry could sit down quite safely.

But by 1478, George had really annoyed Edward IV. One treason too many. He had been arrested in May 1477 and flung in the Tower. He was certainly out of the way on the date of the wedding, so could not be the Earl of Richmond referred to. Besides, he was still the Duke of Clarence, and would hardly be referred to by a lesser title. He was eventually attainted on 19th January 1478, the day after his execution on 18th January. The wedding had been on 15th January. A busy few days for Edward IV.

Richard, Duke of Gloucester was also present at the wedding, and is referred to throughout by this name and title, not a lesser one. Yet another reason to scratch George from the contenders for being this mysterious wedding guest. Richard succeeded to the earldom when he became king, which wasn’t—as we know!—until 1483.

So, who is this enigmatic guest? The editor of the source, W. H. Black, is definite about it being Henry Tudor. Can’t have been. Any suggestions . . .?

Marriage_Of_Richard_Of_Shrewsbury,_Duke_Of_York,_To_Lady_Anne_Mowbray with Henry - 1

The Marriage Of Richard Of Shrewsbury, Duke Of York, To Lady Anne Mowbray. James Northcote (1746-1831). Oil On Canvas, 1820.(tweaked)

TREASON 2 – The Parliament Of Devils, 1459

Introduction

This is the second of two articles I have written about treason. In the first article, I wrote about the Merciless Parliament of 1388 at which eighteen of king Richard II’s closest advisors and friends were tried by parliament and condemned as traitors, against the king’s wishes. In this article I am writing about the ‘Parliament of Devils’ (1459) at which twenty-nine of the kings subjects were attainted and condemned as traitors at the king’s command. Although both parliaments took place against a background of agitation for political reform, there is  an important difference between them. In 1388 there was an identifiable judicial process to determine guilt before sentence was passed; whereas in 1459, the Yorkists were condemned as traitors without any previous judicial procedure.  The judgement of the parliamentary lords had been replaced by the act of attainder.

 

Parliament had been the venue and the tribunal for hearing state trials since the reign of Edward I. In cases of high treason it was necessary to try the accused and obtain the judicial judgement of parliament as the kings high court. However, the deposition of Richard II changed all that. From the beginning of the fifteenth century, the judicial procedure all but disappeared.

 

The Attainder

An act of attainder is a pronouncement of sentence without a judicial determination of guilt. Although attainders have political connotations and were frequently, if not exclusively, used for political ends, the concept is not political in origin. The attainder has its provenance in the common law doctrine of ‘notoriety’. For example, the offence of levying war against the king would be considered notorious if many people had seen it in a battle. In such a case, notoriety acted as an instant conviction.[1] However, by the second half of the fourteenth century, notoriety no longer acted as an instant conviction. It was now considered to be the crown’s indictment, setting out the basis for a prosecution. By the turn of the fifteenth century, the use of notoriety had ceased altogether; the procedure having further changed into the act of attainder.[2] It was the Treason Act of 1351 that drove this process by changing the legal framework. In particular, it had given parliament the power to declare non-statutory offences as treason. That is what happened in 1388, where the grounds for conviction were basically ‘notoriety’. Parliament used its power to ‘declare’ treason as a prelude to a trial and the seizure of the traitors’ estates. Even though this was an unintentional consequence of the act, it set a precedent for others to follow

 

The sophistication and use of attainders developed by degrees during the first half of the fifteenth century. The act of attainder made against the rebel Jack Cade after his death is a landmark since it was felt necessary to extinguish his civil rights after his death. His offences of ‘imagining the king’s death’ and ‘traitorously levying men’ were not declared treason in 1451; it was simply asserted that they were treason. In 1453, this breach of procedure was remedied by a formal declaration in parliament.

 

The attainder of the deceased duke of Suffolk was another important case since it was bought by the lords and then by the commons, and resisted on both occasions by the king. Originally, the lord’s attempted to commit Suffolk for misprision in public office. However, this was defeated because the charges were too vague. The commons took on the case by bringing specific allegations of treason, which the king refused to accept on the basis that “treason was neither declared nor charged”.[3] Eventually, the king was forced to accept Suffolk’s impeachment on charges of misprision, but he used his prerogative to save Suffolk’s life. Notwithstanding Suffolk’s subsequent murder at sea, parliament further petitioned for a declaration of treason and forfeiture on the grounds that he had failed to make sufficient response to the impeachment. Although the king refused the petition, he took note of parliament’s formula and showed his own willingness to adapt and use it in 1459. From that date we see a distinct change in the nature and process of attainder. The context for that change was the disaffection caused by the king’s government during the 1450’s.

 

Context

When the duke York and the earls of Warwick and Salisbury fought the king’s army at St Albans in 1455 they committed treason. Only victory saved them from the consequences of their actions that day.   However, the battle left a legacy of bitterness and hatred between the queen, the sons of the Lancastrian lords killed in the battle, and the duke York and his faction. It was a vendetta that neither Lancastrian nor Yorkist ideology was capable of settling for sixteen years.

 

Six months after St Albans the king had a mental breakdown. Owing to Henry’s incapacity, York was appointed Lord Protector. It was a short appointment as the king recovered his wits within three months. York resigned his position and retired to his northern stronghold. Meanwhile, Queen Margaret took the king, the court and the government administration to Coventry in the Lancastrian heartland. Given the enmity between the queen and York, the task of restoring effective government and preserving a workable balance of power fell on the unaligned nobility. They did their best to preserve loyalty to the king’s royal authority, whilst compromising wherever they could in the interests of unity. However, this became increasingly difficult as the queen’s grip on the king tightened[4]. Gradually, the feeling grew that the queen’s governance, no matter how partisan, was preferable to re-fighting St Alban’s: or worse.

 

Queen Margaret saw York as a threat to the throne, and an incorrigible rebel and traitor whom she was determined to crush. Eschewing any attempt to heal the wounds created by the rift, she prompted the Lancastrian regime to take an increasingly aggressive stance against York and his supporters. The loss of the protectorship had left York politically isolated, a situation that deteriorated further during 1456-57. First, the queen replaced the Chancellor, the Treasurer and the Lord Privy Seal with her own men. Next, she moved quickly to re-assert royal authority in South Wales at York’s expense. By 1458, York’s exclusion from mainstream English politics was almost complete. His standing as the senior royal duke and second in line to the throne was unsustainable unless he could curb the queen’s power. In March 1458, Henry returned to Westminster from Coventry, ostensibly to address the dissention and division in the realm. Unfortunately, his attempt to arbitrate the differences between Yorkists and Lancastrians  was biased. It succeeded only in making matters worse. The subsequent ‘loveday’ at which York and Margaret walked from St Paul’s hand-in-hand was a futile sham. The queen was determined to destroy the Yorkists and they were determined to confront the king with their grievances

 

On the 24 June 1459, the king held a great council at Coventry. York, Warwick and Salisbury were summoned but did not attend.[5] Such was their mistrust that they would not attend in the absence proper guarantees of their safety. This mutual mistrust was at the heart of the country’s problem leading to war[6]. When the Council did meet, the three Yorkists were indicted for their absence at the instigation of the queen; however, the implication that they had committed treason is obvious.

 

Queen Margaret had been preparing for outright war in the king’s name for some time. By September 1459 the preparations were almost complete. The king was at Kenilworth with the main body of his army.[7] The queen was recruiting in Cheshire with the Prince of Wales. The military advantage was undoubtedly with the king’s forces. They were strong in numbers and concentrated in a central position; whereas, their opponents were weak in numbers and widely dispersed. York was at Ludlow on the Welsh Marches. Salisbury was two hundred miles away at Middleham in the Yorkshire Dales. Warwick was even further away across the English Channel in Calais. In theory at any rate, the royal army was well placed to manoeuvre on interior lines and defeat the Yorkists in detail. Sensing their peril, the Yorkist arranged to unite their retinues in the west midlands[8] and to put their case directly to the king from a position of relative security, if not strength.[9]

 

Blore heath and Ludford Bridge

The earl of Warwick landed at Kent in September. He was in a hurry with no time for recruiting sympathetic Kentishmen. Consequently he entered London on the 20 September with only ‘a few hundred’ professional soldiers from the Calais garrison.[10] The next day he left for Warwick and a rendezvous with his father and uncle[11]. Meanwhile; the earl of Salisbury with about five thousand men was on his way from Middleham. York was at Ludlow, nearest to the rendezvous. It is possible that Warwick’s march was ‘shadowed’ by the duke of Somerset’s retinue coming from the southwest and he (Warwick) was ‘forced north of the town and onto Ludlow’ having narrowly avoided a clash of arms with Somerset in the streets of Colehill near Coventry.[12] It may be, as Johnson insinuates, that Somerset was afraid to engage Warwick’s veterans[13].

 

While Warwick was in London, or soon after, Salisbury’s contingent was approaching Nottingham.[14] Warned of his approach, the king re-deployed his army to cover the Trent crossing, thereby, forcing Salisbury to change course westward towards Ludlow.  The proximity of the king’s army and the enforced change of direction had put Salisbury in a tight spot since he was now between the queen/Prince of Wales with the Cheshire levies in front, and the main body of the royal army to his left rear. On the 23 September, Salisbury’s scouts spotted a large Lancastrian force marching to towards them.[15] The queen had detached Lord Audley with ten thousand men to block the Yorkist’s  path. Salisbury tried to negotiate a peaceful way out of his  difficulty but was unsuccessful. Battle was joined at 1pm and lasted for four hours. It was bitterly fought: however, many of Audley’s troops were green and no match for Salisbury’s northerners, hardened by years of skirmishing on the Anglo-Scottish border. Audley was tricked into leaving his strong defensive position to attack the Yorkists. He mounted two cavalry assaults and one infantry assault, all of which were repulsed. In the last infantry melee, Audley was cut down and the battle lost. Two thousand Lancastrians died in the battle and the close  pursuit. Despite his victory, Salisbury was still in danger of being trapped; the king was closing in behind and the Prince of Wales’ remaining levies were nearby. Instead of pressing on to Ludlow immediately, Salisbury dallied on the battlefield. Luckily, the king’s tardiness enabled the Yorkists to slip away under cover of their artillery, which was fired by a lone friar.[16]

 

Although there was no fighting or politicking for the next fortnight, it would wrong to suggest, as Johnson does, that nothing much was happening. Both side were manoeuvring for an advantage. We can follow the royal army’s southward movements from the king’s itinerary for this period.[17] After combining his forces near Market Drayton (probably on the 25 or 26 September), the king marched it south towards Worcester via Walsall and Coleshill. According to the Parliamentary Roll this was arduous campaigning for Henry. He spent thirty days ‘in the field “…not resting two nights in the same place, except on Sundays’, and sometimes ‘resting in a bare field two nights in a row…in the cold season of the year[18].

 

For their part, the Yorkists lords joined forces at Ludlow as soon as possible after Blore Heath: possibly on the 26 or 27 September. What they did next is certain. Their first joint action was to march the army from Ludlow to ‘the neighbourhood of Worcester’. Why they did this, is not so certain. They may have intended to block the king’s  advance southward, which threatened their communication with the Southeast, where the most of their sympathisers were. Professor Goodman speculates that they took up a blocking position between Kidderminster and Worcester. [19]  However, as soon as the king appeared at the head of his army and ’in guise of war’ (with his banner displayed), the three lords withdrew to Worcester. It wasn’t simply that they were outnumbered; the Yorkists were loath to fight the king’s army, as that would be treason. As if to emphasise their dilemma of whether to fight or not, York and his Neville relatives swore an oath of fellowship in Worcester Cathedral that — saving only their allegiance to the king — they would come to each other’s aid in time of need. They also took the opportunity to further reaffirm their loyalty and to compose an indenture of their grievances. The indenture was sent to the king through Garter King-At-Arms. Whether, the king saw the indenture we cannot say; however, his next action was unequivocal. He ordered the royal army to resume its advance on Worcester

 

York had no choice now but to retreat southwards.[20] He still baulked at fighting the king and it was necessary to maintain some distances between the two armies. However, York’s decision to cross the river Severn at Ledbury was the defining moment in this campaign since it meant abandoning any hope of escape to the south and the acceptance that he may have to fight for his life. The increasingly fragile Yorkist morale may have forced him to take refuge in the more defensible terrain around Ludlow and the Welsh border. If he had to fight the king then it would be on ground of his own choosing. By the 9 October the Yorkists were at Ludlow and the king was at Leominster, a few miles away. The next day, the Yorkist wrote an open letter to the king protesting their innocence and setting out their case in detail[21] It was a last desperate plea to reason, but it was useless. By now, the fighting spirit in York’s army was non-existent. The king had offered pardon to those who surrendered to his grace within six days; nobody wanted to fight the king. It was the defection of Andrew Trollope who commanded the Calais garrison troops together with most, if not all, of his men (and with valuable intelligence about York’s battle plan) that decided the outcome at Ludford Bridge. York and Rutland fled to Ireland, Warwick, Salisbury and March fled to Calais. Their soldiers and the remainder of York’s family were left to the mercy of the king and queen.

 

From a military point of view it was a miserable campaign, notable only for the fact that neither side achieved their objective. Despite their numerical superiority and central position, the king’s army failed to defeat the Yorkists in detail, or to prevent the concentration of their retinues. Worse still, they allowed the Yorkist leaders to escape abroad. For their part, the Yorkists failed to convince the king — or anybody else — of their loyalty and good intentions, and were forced to flee ignominiously. However, from professor Bellamy’s point of view ’this pattern of events is of more than antiquarian interest’, since it explains the legal aspects of war. According to the international usages of war, the presence of a king at the forefront of his army with his banner displayed is tantamount to a declaration of war[22]. The Lancastrian keenness to get the monk-like Henry into harness, mounted on a warhorse at the front of his army, with the royal banner displayed was probably inspired by their knowledge of the law. Once these things were in place on the battlefield any attempt by the Yorkists to engage the royal army in battle would be treason (levying war against the king). It would enable the Yorkists’ possessions to be forfeit to the crown without the need for legal process. The sentence of attainder and forfeiture would extend to the Yorkists’ heirs in perpetuity. York’s refusal to stand and fight at Worcester and at Tewkesbury may also have been prompted by his knowledge of the law; it was consistent with his personal position throughout the 1450’s.

 

The Parliament of Devils

Parliament was summoned to meet at Coventry on the 20 November in anticipation of completing the annihilation of the House of York and the Yorkist cause. Queen Margaret must have thought that after three years of military and political preparations, her plans were about to bear fruit. York and his confederates were within her grasp; their capture or death in battle would ensure Lancastrian hegemony. Even though her enemies had escaped to fight another day, there was still much to play for. The parliamentary attainder of the Yorkists and the forfeiture of their estates would bring unprecedented wealth and power into the royal coffers, which could be exploited for the king’s benefit.[23]

 

The Coventry Parliament was packed with loyal Lancastrians to ensure royal success.[24] Nothing had been left to chance. The petition for attainder, which was presented to the king, was a carefully worded document in two parts. In all probability, it was drafted by the king’s own lawyers.[25] The first part contained an indictment of Yorkist disloyalty dating back to the beginning of the decade. First, York was accused of stirring Jack Cade to defy the king’s will and to incite rebellion in the realm, and of accroaching royal authority (1450). Second, York was forsworn; he broke his most solemn oath of loyalty and obedience to the king sworn at St Paul’s in 1452. Third, York conspired with the earls of Warwick and Salisbury to levy war on the king at St Albans and despite the king’s clemency he persisted with his wrongdoings. Fourth, the earl of Salisbury with several (named) confederates levied war on the king at Blore Heath. Finally, York and his (named) confederates levied war on the king at Ludford (1459).[26]

 

On the face of it, the government’s case seems a good one, which Johnson thinks has never been successfully refuted[27]. In truth, the facts are largely against York; he did break his oath of 1452 and he did fight a battle against the king’s army at St Alban’s. It is unlikely that he was behind Cade’s rebellion, but he exploited it to further his own political agenda. Furthermore, his constant criticism of the Henry’s advisors and of their appointment was a direct challenge to the royal prerogative, which possibly amounted to accroachment. Even so, the crown’s case was very far from being irresistible. First, the decision to proceed against the Yorkists by way of parliamentary attainder rather than using the king’s other proscriptive powers, suggests that the government had doubts about the strength of their case. It is a common misconception that the king needed a parliamentary attainder in order to seize the rebels’ possession. As professor Bellamy points out “ It was not the act [of attainder] that supplied the crown with its rights to the rebels’ possessions but the ancient royal prerogative which operated in time of open war.”[28] Bellamy is referring to the king’s power to convict the rebels in a state trial ‘on the king’s record’. That is to say, on the king’s testimony, without the need for corroborative evidence. Under this power, forfeiture would follow as part of the court judgement. The fact that the government did not follow this process raises questions about whether in law, a state of open war existed in 1459. The king was not present at Blore Heath, nor was the royal army engaged in battle at Worcester, Shrewsbury or Ludford. Moreover, the courts of justice remained open during September and October (In the past, the closing of the courts was taken as a sign of open war.). The Yorkist persistent declarations of their loyalty to the king were also problematic, since they struck a cord with those (and there were many) who were sympathetic to the York’s call for political reform but nonetheless demurred at using armed force against the king. These doubts raised the possibility in Lancastrian minds that at some point in the future any judgement obtained ‘by the kings record’ may be challenged, with concomitant wrangling and litigation over the disposal of forfeited estates. This risk would be avoided by a parliamentary declaration of treason and an act of attainder. This particular attainder was actually a clever legal document, which was not open to legal challenge and provided comprehensive provisions for the forfeiture of the Yorkists’ estates.

 

Another indication of Lancastrian anxiety is found in a contemporary manuscript entitled Somnium vigilantis.[29] The Somnium is a highly stylized narrative of a fictitious court case at which a Yorkist and a Lancastrian argue about justice and mercy. It was written prior to the Coventry parliament by a Lancastrian sympathiser and is partisan. And yet, it provides an insight into the issues exercising the minds of the good and the great at this time. The Yorkist is characterised as arrogant and boorish, bursting into court and demanding clemency. The Lancastrian, who is ‘courteous and just’, allows him a hearing. The Yorkists’ defence is put forward on several grounds. First, mercy is a necessary attribute in a king. That is true and probably explains why there is a subtext of justice and mercy in the Parliamentary Roll account of proceedings and why Henry saw fir to preserve his prerogative to deal with the rebels mercifully, as he saw fit. Second, the realm needed the nobility. I presume that this point is allied to the Yorkist’s third point, that the cause of reform was honourable. These two points together could be construed as arguing the necessity for nobility as a check to a tyrannical monarch. Of course, in the fifteenth century such a view was political dissent. Fourth, there were no specific charges against the Yorkists. This is a good point and may have been legally embarrassing for the crown: but it was not a case winner. Fifth, in view of the threat of a foreign invasion, this was not a good time to destroy those nobles favoured by the people to defend them. These grounds do scant justice to the actual Yorkist position and, predictably, the Lancastrian representative has no trouble crushing them to his own satisfaction. However, the amount of time and ink expended by the author in arguing that the cause of reform, whilst honourable, was an inadequate defence to insurrection suggests Lancastrian nervousness about the strength of their case.

 

Although the Yorkists were unable to defend the charges against them in parliament, their defence is well known to posterity, having been argued in extant correspondence, bills and indentures produced by them over the course of a decade. The bill published by Warwick on his way over from Calais and the open letter sent by the Yorkists to the king on the 10 October were simply the latest iterations of Yorkist complaints that hadn’t changed in substance since 1450 and which were always carefully drafted to avoid any imputation of treason.[30] Their defence was simple and had the benefit of consistency. The problems of the realm were caused by the king’s evil councillors and not by the king. He was innocent, and was being prevented from ruling, as he would have wished, by these same evil councillors. Ultimately, the Yorkists were compelled to act in the way they did by the intransigence and aggression of the king’s evil councillors. Kendall’s implication that the Yorkists approach had not changed since 1455 does scant justice to the longevity of their argument, which, in fact hadn’t actually changed since 1450. Kendall’s other point, that the repetition of the same narrow pattern of factional armed protest was not enthusing the general population to flock to the Yorkists’ banner, is more substantial.[31] As John Watts has pointed out, it was not that York and the Nevilles lacked imagination so much as the fact that the old arguments still seemed valid.[32] The dispute had not changed in nine years. York continued to blame the ministers and not the king, and the government continued to regard any discussion of its performance as treason. Furthermore, the queen could no more exercise royal authority on behalf of an ineffective king than could York during two protectorships. The underlying problem that the king in his innocence was unfit to rule, was rising to the surface with dangerous consequences for everyone. It would be irrational for York to suppose that he could change the outcome by using the same argument and the same method of protest, He must eventually realise that his problem was insoluble while Henry remained on the throne.

 

The second part of the attainder contained the provision for forfeiture of the Yorkists’ estates. It was the nub of the document, which in the words of York’s biographer “… bought all of York’s property into the king’s hands”.[33] That is not to mention all the property belonging to the earls of March, Warwick, Salisbury and Rutland, and all the property belonging to the twenty-four other Yorkists who were attainted, all of which fell into the king’s hands. This included property held in fee simple (which was usual) and property held in fee tail (which was unusual).[34] The severity of the forfeiture is an indication of the government’s determination to destroy the Yorkists and their cause. Insofar as the king was merciful, he extended his prerogative to Lord Powis, Walter Devereux and Sir Henry Radford by rejecting the claim for their lands and pardoning them. He also refused a request to attaint Thomas, Lord Stanley for his betrayal at Blore Heath.[35] However, he had no intention of pardoning York or the four earls. They had not submitted to the king’s grace and their destruction was to be permanent.

 

Little was granted away in fee simple or in fee tail; neither were many leasehold grants made and then only for short periods. The vast bulk of the forfeited estates were put in the charge of royal stewards who were given lifetime appointments and expected to produce a high income for the royal coffers (That is a clear indication of the permanence of the arrangements.). The estates of York and the Nevilles were absorbed into the royal demesne along with, in a few cases, their existing servants. Generally, established administration procedures were respected; although, some rationalization was necessary. For example, the estates of York and Salisbury in Essex and Suffolk were put in the charge of a single royal steward.[36] Despite the care of these arrangements the changes of ownership did not always go smoothly. There was some natural resentment of the new Lancastrian overlords, and the stewards did not all receive a warm welcome when they arrived at the forfeited estates. Johnson believes that, generally, the arrangements for the takeover were honourable; the ducal estate was not dismembered and in theory could be resurrected in the future. Moreover, whilst a pardon for York was unthinkable, Duchess Cicely did receive a maintenance grant from the king for her and her younger children. It was unfortunate for the royal party that the effectiveness of these arrangements was undermined by the fact that the Yorkist leaders were at large and expected to return to England.

 

Epilogue  

The events of the summer and autumn of 1459 changed the course of English history. The Yorkist notion that the king was an innocent victim of his evil councillors was no longer tenable. Regardless of whether he was prevented from reforming the government or was simply unwilling to do so, Henry’s incapacity was obvious; he was unfit to rule. With the benefit of hindsight we can see that this was probably the moment when the duke of York became convinced that he must claim the throne to survive and to bring good governance to the realm. It was a course of action that involved the deposition of an anointed king and the disinheritance of his heir[37]. A protest for political reform was about to become a dynastic civil war.

 

The Parliament of Devils also had a constitutional importance in its own right. It provided a template for the destruction of the king’s political enemies that upset the balance of power between the king and the three estates of parliament. Since the twelfth century, the cohesion of the English lords had been a relatively effective counter to any royal tendency towards tyranny. Nevertheless, the lords had not themselves succeeded in transforming the government into an oligarchy, though they had tried to do so. And the commons were incapable of creating a democracy; although neither the king nor the lords could ignore them. In the words of professor Bellamy: “The late medieval law of treason was both a cause and a result of this balance and when it was tampered with there was a serious danger to constitutional government.” [38]

 

Acts of attainder were a method for popular participation in the ‘legal’ process. The lords or the commons could sponsor them, or the king could introduce them. Those bills put forward by the lords and by the commons were not always successful (e.g. the impeachment of Suffolk, 1450) those introduced by the king were never unsuccessful. The Parliament of Devils confirmed that royal power was paramount. The attainted Yorkists’ protest that they had not been allowed to answer the charges against them was unique. There is no evidence that either the lords or the commons opposed a bill of attainder by the king. From 1459, the attainder process was dominated by the royal prerogative: “It was openly acknowledged as a much surer way of getting a conviction for treason than by [the] common law and for this reason was used as often as possible. It is a form of treason in which the magnates and people play no part except when they were the victims.”[39]

[1] JG Bellamy –The Law of Treason in England in the Later Middle Ages (Cambridge 1970) pp.177-179.

[2] Bellamy p.180

[3] Bellamy p.187; see also James Gairdner (Editor) -The Paston Letters 1422-1509 (Constable 1900) Vol 2, p.99 and EF Jacob – The Fifteenth Century 1399-1485 (Oxford1987) p.493

[4] JS Davies (Editor) – An English Chronicle of the Reigns of Richard II, Henry IV, Henry V and Henry VI (Camden LXIV 1856) p.79 http://quod.lib.umich.edu/c/cme/acv5981.0001.001  Bertram Wolffe – Henry VI (Yale 2001 edition) pp.302-318. Wolffe disputes the conventional view that Henry was a saint-like innocent in the hands of his vengeful queen and her Lancastrian ‘gallants’. Facets of his character identified by Wolffe are: unforgiving, vindictive credulous, divisive, vacillating but stubborn and lacking political acumen. He argues that Henry was simply a bad king, who knew what he was doing: “if he was manipulated by the queen…he was manipulated willingly” (318). For a contrary opinion see RA Griffiths – The Reign of Henry VI (Sutton 1980): “ The [Yorkist] lords accurately divined that whatever his personal inclinations were…[Henry] was powerless in the hands of the queen and her advisors and it was they who were pursuing the vendetta against York and his Neville allies.” (819).

[5] Alison Hanham – John Benet’s Chronicle 1399-1462: an English translation (Palgrave Macmillan 2016) p.44: according to Benet, in addition to the absent Yorkist lords, the archbishop of Canterbury, the bishops of Ely and of Exeter, the earl of Arundel, Lord Bourchier and others failed to attend. All were indicted ‘ as a result of the advice of the queen’.

[6] Wolffe, p.317; Griffiths p.817

[7] Anthony Goodman – The Wars of the Roses: military activity and English society 1452-97 (Routledge and Kegan Paul 1981) pp.30, 237 note 57. Goodman cites Dr Colin Richmond (The Nobility and the Wars of the Roses 1459-61; Nottingham Medieval Studies, 21 [1977]). The following were rewarded for their service against the Yorkists: the dukes of Buckingham and Exeter, the earls of Arundel, Devon, Northumberland, Shrewsbury and Wiltshire, Viscount Beaumont and ‘at least ten barons of parliament’. In addition, the king had Somerset’s retinue arriving from the south-west, plus the remainder of Northumberland’s northern contingent (Thomas Percy, Lord Egremont and the earl of Westmorland). The queen was recruiting troops in Cheshire and Lancashire with the Prince of Wales (nominally commanded by the infant Prince but actually commanded by the queen.).

[8] PA Johnson – Duke Richard of York 1411-1460 (Oxford 1991 edition) p.186 and Goodman p.26.

[9] Wollfe pp.316-319; Griffiths p. 817 and Johnson p.188

[10] Griffiths (pp. 817, 847 note 275) puts the figure as ‘variously 300-500 men’; Johnson (p186) says he had a significant force’. It is difficult to know what Johnson means by ‘significant’ but with the benefit of hindsight we can see that Warwick’s retinue was probably counted in three figures. However, their significance may have been their military quality and not their numbers. Goodman (p.26) credits Warwick with ‘a few hundred men’.

[11] Goodman (p26). This is plausible; nevertheless, it is only conjecture.

[12] ‘Gregory’s Chronicle: 1451-1460’, in The Historical Collections of A Citizen of London in the Fifteenth Century, ed. James Gairdner (London, 1876), pp. 196-210. British History Online http://www.british-history.ac.uk/camden-record-soc/vol17/pp196-210 [accessed 19 March 2016].

[13] Johnson p.187 and Goodman p.236 note 35. Goodman finds it difficult to account for Warwick’s presence in Coleshill. He might have been acting independently against the king as Goodman suggests; though, it seems unlikely since he was weak in numbers and in the midst of the king’s army. It is also possible (I put it no higher) that he was looking for the quickest way out of a trap, with the intention of making his way across country to Ludlow. By now he would have realised the impossibility of the Yorkists’ meeting at Warwick.

[14] Goodman p.236, note 40, provides a useful summary of the contemporary estimates of Salisbury’s numbers, which I need not repeat. I personally think he had between 3000 and 5000 men, with an artillery train. His contingent was probably the most effective fighting force at the Yorkists disposal.

[15] Goodman p.236, note 40 lists the various chronicle estimates of the comparative size of the respective armies. Suffice to say that Salisbury was outnumbered, perhaps by 2:1

[16] Gregory’s Chronicle, ibid: see also David Smurthwaite – The complete Guide to the Battlefields of Britain (Michael Joseph Ltd 1984) p.101.

[17] Wolffe, p.371: Wolffe’s biography has been much criticised; however, the royal itinerary he has constructed from the kings signet correspondence, household accounts, privy seal documents and royal warrants was invaluable in helping me to understand these events.

[18] Chris Given-Wilson (Gen Ed) – The Parliamentary Rolls of Medieval England (Boydell Press 2005): Rosemary Horrox (Ed) Volume 12 p.459

[19] English Chronicle pp.80-81; Benet p.44 and Goodman p.29: for a different interpretation see Trevor Royle- The Wars of the Roses (Abacus 2010) pp. 242-243. Royle reverses the roles: he suggests that it was the king who intercepted the Yorkists on their march to London. Once York saw the king’s army in position and the way blocked, he retreated to Worcester. It is not an impossible scenario, but it is unlikely. I can think of no good reason why York would march his army north towards the king’s host, if he was actually trying to escape to the southeast. Goodman’s analysis seems far more plausible to me.

[20] Johnson p.188 thinks it is ‘odd’ that York retreated to Ludlow via Tewkesbury since it implied he was trying to escape to the south, a manoeuvre that Henry successfully blocked. My interpretation of Yorks reasoning is slightly different. First, Henry was obviously not in close pursuit of York; we have no record of skirmishing between the forces; moreover, Henry’s whole command had been ‘sluggish’. His failure to concentrate his forces quickly had allowed Salisbury to escape the trap at Blore Heath. Second, York may well have been trying to escape southwards, but changed his mind in light of his army’s fragile morale (The Yorkist soldiers were wary of fighting their anointed king and the offer of a pardon was tempting.). Ludlow offered a good position if the Yorkists had to fight.

[21] English Chronicle pp. 81,82; this sets out Yorks letter in full, which I would not repeat here, as the Chronicle is freely available on line for anybody interested to read.

[22] Bellamy p.201

[23] Griffiths pp. 825-826 It was never a realistic prospect that this wealth would be used to support the public exchequer or frittered away on injudicious grants to royal friends. Given royal impecuniosity this vast wealth was more likely to find its way into the king’s purse.

[24] Griffiths p.823; “ Among the 169 members whose identity is reasonably certain (out of 260), one has to search long and hard to find a single servant of either York or Neville”. In Griffiths’ opinion the election was engineered in favour of known loyalists (an opinion echoed by Bellamy (p.147). Nevertheless, Rosemary Horrox doesn’t believe it was an aggressively partisan assembly. She ‘deduces this from the care taken to justify the severe measures taken’ (PROME p.448).

[25] See Bellamy at p.197 and Griffiths at p.824; the authorities disagree as to who precisely drafted the act of attainder.

[26] Even though, York and the other leaders fled, the Yorkists ‘fired their guns at the king’.

[27] Johnson p. 189

[28] Bellamy p.204

[29] Johnson p.190; PROME p.450 both citing JP Gilson – A defence of the proscription of Yorkists in 1459 (H.E.R 26, 1911)

[30] Margaret Kekewich and others (Eds) – The Politics of 15th Century England: John Vale’s Book (Sutton Publishing and the Richard III & Yorkist History Trust 1995) P.27. The Articles if the earl of Warwick on his way from Calais to Ludlow, 1459 (British Library Manuscript Additional 48031A ff. 137-138) is published for the first time at pp. 208-209. See also, Gregory’s Chronicle, ibid: Johnson p.188, and Griffiths p. 817

[31] Paul Murray Kendall – Warwick the Kingmaker (George Allen & Unwin 1957) p.53

[32] Kekewich and others;ibid

[33] Johnson p.192

[34] The SOED, 5th edition (2005); Fee simple’ is defined as the ‘Tenure of a heritable estate in land etc. forever and without restriction to any particular class of heirs. Fee tail is defined as ‘Tenure of a heritable estate entailed or restricted to some particular class of heirs of the person to whom it is granted’.

[35]. The king ordered Thomas Lord Stanley with his northern retinue to join the queen/Prince of Wales’ levies in Cheshire; but Stanley, who was in secret correspondence with Salisbury, prevaricated and did not arrive in time to fight at Blore Heath. His northern troopers were sorely missed by the green Lancastrians and it is clear that feeling against Stanley ran high in royal circles. However, in typical fashion he managed to rehabilitate himself with the king so that he was not included in the attainder. The king refused to grant a separate petition for Stanley’s attainder; probably, because his support in the northwest was essential after York escaped to Ireland. William Stanley who fought with Salisbury at Blore Heath was attainted. The Stanley’s did  not just ‘sit on the fence’; they  straddled both sides of it.

[36] Almost all of this section is taken from Griffiths (p.826) and Johnson (pp.192-194).

[37] My opinion about York’s intention is conjecture; though his subsequent attempt to claim the throne suggests it is plausible. Unfortunately, as the events of 1460 were to show, York had misjudged the mood of the country. Even though there was dissatisfaction with the government’s performance, there was  little  appetite for Henry’s deposition.

[38] Bellamy p.206

[39] Bellamy p.212

 

Would Richard use vellum? Or paper?….

An argument has arisen for and against using vellum for recording our laws, as stored on the amazingly full shelves of the Act Room. Paper is indeed more perishable. Just imagine having the Magna Carta on paper! How insignificant it would appear. Not insignificant in content, of course, but all the same…

I have seen the magnificent charter that Richard III granted to the City of Gloucester. It is quite exquisite, and so vivid and crisp after all this time that it might have been signed and sealed only a few years ago. If it had been on paper, it would certainly not look the same.

So, vellum or paper? In the long run, given that vellum lasts 5,000 years or more, I guess the vellum has my vote. I know there are all sorts of reasons and sensibilities against it, but I’m still in favour of its continued use. It would have been used for the Lindisfarne Gospels, Domesday Book, Magna Carta, Edward I’s Treason Acts, de Heretico Comburendo, Titulus Regius, Richard’s bail laws and Henry VIII’s attainder against the insane Viscountess Rochford.

http://www.telegraph.co.uk/news/politics/conservative/12156813/Vellum-should-be-saved-in-a-bid-to-safeguard-our-great-traditions-says-minister.html?utm_source=dlvr.it&utm_medium=twitter

Act Room, Houses of Parliament

Only Richard III ever broke the law…(apparently)

This post is provoked by a comment I came across the other day that claimed that the tens of thousands of people killed by the Tudor dynasty somehow don’t count as it was all done within the law. Albeit the rough-and-ready version of the law as it was at that time.

Snags with this argument:

  1. A number of highly unpleasant 20th century dictatorships and war criminals would have offered a similar defence. This does not make them moral or admirable.
  2. Henry VIII, certainly, was not above changing the law after the offence was committed and then applying the change to the offence. Examples, the Bishop of Rochester’s unfortunate cook; Lady Rochford – in the latter case the law was changed to permit the execution of insane people! If this is ‘legality’ it stinks.
  3. What about people disposed of via Acts of Attainder? Examples Katherine Howard, Lady Rochford, Margaret Countess of Salisbury. These people were not even given a drum-head court martial, let alone a trial, and absolutely no opportunity was given to them to mount a defence. Legal? After a fashion.
  4. Tyrants make their own laws as they go along. Anyone can stay within the law if they can amend it as they choose.

 

Fabricating Precontracts: Richard III vs Henry VIII

On 10 and 11 June 1483, Richard duke of Gloucester wrote to his affinity in the North and asked for troops to support him against the Woodvilles who, he claimed, were plotting his destruction. On 22 June Ralph Shaa preached his “bastard slips” sermon, followed by similar speeches by the duke of Buckingham, and on 26 June a quasi-parliamentary assembly of the Three Estates of the Realm – the nobles, bishops and representatives of the commons who had come to London for the coronation and subsequent first Parliament of Edward V – offered Richard the crown in place of his nephew. Allegedly Robert Stillington, Bishop of Bath and Wells, had come forward and testified that the boy’s father, Richard’s brother Edward IV, had secretly entered into a legally binding marriage contract with Lady Eleanor Butler, daughter of the Earl of Shrewsbury, who was still alive when he, again secretly, married his queen, Elizabeth Woodville. This second marriage was therefore invalid, which meant that young Edward was illegitimate and couldn’t inherit his father’s title.

This was a key turning point: Richard had been staunchly loyal to his brother and all surviving evidence suggests that up until mid-June he had every intention of pressing ahead with his nephew’s coronation. He had sworn allegiance to him, had spent the month and a half since his arrival in London preparing robes and food, issued letters of summons for the 40 esquires who were to receive the knighthood of the Bath on the occasion and even paid £800 of his own money towards the royal household, which appears to have been on the verge of bankruptcy. Moreover, his own political future in his nephew’s government seemed secure: a speech drafted by Chancellor John Russell for Edward V’s first Parliament proposed not only to extend his Protectorate beyond the coronation, but to expand its remit from keeping law and order to in the future also have “tutele and oversight of the king’s most royal person during his years of tenderness”, effectively making him regent.

Nevertheless, some believe that the sudden revelation of the precontract was too convenient to be true. They argue that the executions of William Hastings, Antony Woodville, Richard Grey and Thomas Vaughan and the threat of troops advancing from the North terrified the council – the same council which only two months earlier had successfully persuaded the queen to limit her son’s escort from Ludlow to 2000 men – and the Three Estates into accepting a fabricated precontract so Richard could satisfy his hitherto secret ambition of becoming king. As brother and uncle of kings, Lord Protector, Constable and Lord High Admiral of England, Richard was indeed a powerful man, so could it be true?

The precontract that deposed Edward V tends to be viewed as some kind of exotic technicality, but precontracts were common not only in medieval England, but well past the Reformation and affected all levels of society, even kings. A well documented example is Richard’s great-nephew Henry VIII, who tried to have three of his six marriages annulled because of an alleged precontract. In all three cases the claim was highly dubious, but Henry was not only an anointed and firmly established – if not feared – King of England, but also head of the Church. So how did he fare?

Surprisingly, he failed in two out of three cases. Let’s look at each of them in turn:

1) Anne Boleyn

Henry had defied the Pope and changed his country’s religion in order to divorce his first wife, Catherine of Aragon, and marry his second wife, Anne Boleyn, but in early 1536 their marriage was one the rocks and Henry was looking for pastures new. One of the tools he tried to use to get rid of her was her former relationship with Henry Percy, Earl of Northumberland.

In 1527, when Anne had been lady-in-waiting to Catherine of Aragon, a romance had developed between her and Percy and they had become secretly “engaged”, presumbably by making a de futuro marriage vow (“I will marry you”). Henry, who had his eye on Anne for himself, asked his then Chancellor, Cardinal Wolsey, to intervene and “after much debate and consultation about lord Percy’s case it was finally decided that his engagement to Anne Boleyn should be dissolved and that he should instead marry one of the Earl of Shrewsbury’s daughters, Lady Mary Talbot, which he later did.”

The fact that the engagement had been dissolved at his own insistence didn’t stop Henry from claiming now, nine years later, that it was in fact a legally binding contract and therefore invalidated his marriage to Anne. His new Chancellor, Thomas Cromwell, tried to persuade Percy to confess, but he refused to be bullied. On 13 May 1536 he wrote to Cromwell:

“I perceive by Raynold Carnaby that there is supposed a pre-contract between the Queen and me; whereupon I was not only heretofore examined upon my oath before the archbishops of Canterbury and York, but also received the blessed sacrament upon the same before the duke of Norfolk and other the King’s highness’ council learned in the spiritual law, assuring you, Mr. Secretary, by the said oath and blessed body, which afore I received and hereafter intend to receive, that the same may be to my damnation if ever there were any contract or promise of marriage between her and me.”

There’s little reason to doubt his sincerity. His marriage to Mary Talbot was extremely unhappy and in 1532 Mary had tried to get it annulled by claiming that Percy had blurted out during an argument that they weren’t really married as he had been precontracted to Anne. However, when the matter was investigated he swore on the Blessed Sacrament in front of the duke of Norfolk, the archbishops of Canterbury and York and Henry’s canon lawyers that this wasn’t the case. He should have jumped at the opportunity to regain his freedom, but de futuro marriage vows only became binding if followed by sexual intercourse, so if he hadn’t slept with Anne then there was no binding contract.

Faced with Percy’s refusal, the king had to find another reason why his marriage to Anne was invalid. In the end it was declared null and void due to unspecified impediments supposedly confessed by Anne herself, but if she had hoped that this would save her life it wasn’t to be. She was accused of adultery with a number of men, including her own brother, and of planning to replace Henry with one of her lovers, which was treason. All but one of the accused, a musician who had been pressured into confessing, pleaded not guilty, but to no avail. On 15 May Anne was found guilty on all charges and sentenced to death. How she could have committed adultery if her marriage to the king was invalid was not explained. Percy, who sat on the jury that convicted her, fainted and had to be carried out. He died eight months later of natural causes. On 17 May the queen’s supposed lovers were executed, followed two days later by Anne herself, her sentence having been commuted from burning to beheading. Incredibly, Henry had been able to make the unlikely incest charge stick – the spectators at George Boleyn’s trial were betting ten to one that he would be acquitted – but not the claim of the precontract.

2) Anne of Cleves

Henry’s marriage to his fourth wife, Anne of Cleves, was a political match and not a happy one. They were married in January 1540 and by June Henry was actively looking for a way out, complaining that he was unable to have sex with her because she was too ugly, that she wasn’t a virgin and even that she smelled bad. Sir John Wallop, the English ambassador in France, was therefore instructed to speak to the Cardinal of Lorraine about Anne’s former marriage negotiations with his brother, duke Francis of Lorraine.

Henry knew that many years ago Anne and Francis had been contracted to marry; in fact, he had questioned this after meeting her for the first time in a bid to call off the wedding, but her brother’s ambassadors had dismissed his concerns. They declared that they had not only read the agreement, but also been present when the ambassador of the Duke of Gueldres, who had arranged the match, declared it null and void, and promised to provide copies of both the agreement and its dissolution. However, all they had been able to produce was a notarised statement that they had investigated the Cleves archives and found a report which stated that the negotitations “were not going to take their course”. Crucially, they had been unable to confirm whether the marriage contract was per verba de praesenti (“I marry you”) or de futuro (“I will marry you”) and Henry now used this to his advantage.

On 6 July Anne was asked to agree for a church court to investigate her marriage, which she did. The following day a convocation presided over by Archbishop Thomas Cranmer began to consider the evidence and after two days of “mature deliberation” found the marriage “null by reason of a precontract between lady Anne and the marquis of Lorraine, that it was unwillingly entered into and never consummated, and that the King is at liberty to marry another woman, and likewise the lady Anne free to marry.” Specifically, it was argued that Anne’s marriage contract with Francis had likely been per verba de praesenti and therefore binding even without consummation and that, far from not being able to get it up, Henry had deliberately abstained from sleeping with Anne while awaiting clarification of the matter since, if the precontract turned out to be valid, it would have made their children bastards.

On 12 July Parliament announced Anne’s agreement to the annulment of her marriage to Henry, including her confirmation “that she remaineth not carnally known to the King’s Highness’s body”. Henry showed his gratitude by deciding “to endow you with 4,000l. of yearly revenue. We have appointed you two houses, that at Richemont where you now lie, and the other at Blechinglegh, not far from London, that you may be near us and, as you desire, able to repair to our Court to see us, as we shall repair to you. When Parliament ends, we shall, in passing, see and speak with you, and you shall more largely see what a friend you and your friends have of us.” In return Anne sent him the ring she had received for their “pretensed marriage”, asking for it to be broken into pieces. It was a good deal: although she endured public humiliation and had to give up her title as queen, her cooperation with Henry’s wishes not only saved her life, but made her one of the wealthiest women in England.

3) Catherine Howard

Only 19 days after his marriage to Anne of Cleves was annulled, Henry married his fifth wife, Catherine Howard. Like her cousin Anne Boleyn, she was a niece of Thomas Howard, 3rd duke of Norfolk, and her fall from grace was just as spectacular. On 2nd November 1541 Thomas Cranmer, the Archbishop of Canterbury, passed a letter to Henry which alleged that while growing up in the household of her step-grandmother, the dowager duchess of Norfolk, Catherine had affairs with Henry Manox, her music teacher, and Francis Dereham, a servant of the Howard family and now the queen’s secretary. The claims were made by a chambermaid who had shared a dormitory with her. Stunned, Henry ordered an investigation.

The chambermaid and Manox were questioned and Manox admitted that he “had commonly used to feel the secrets and other parts of the Queen’s body”, but denied sleeping with her, unlike Dereham who “used to haunt her chamber rightly and banquet there until 2 or 3 a.m.” Dereham and a number of Howard servants were arrested and sent to the Tower. Dereham confessed under torture that he “had known her carnally many times, both in his doublet and hose between the sheets and in naked bed”, but insisted that this had ended before her marriage to the king and that Thomas Culpeper, a gentleman of the Privy Chamber, had “succeeded him in the Queen’s affections”. Culpeper was arrested, tortured and confessed that “he intended and meant to do ill with the Queen and that in like wise the Queen so minded to do with him.”

On 8 November, Catherine herself was interrogated and made a written confession, in which she admitted to sexual relations with Dereham, but denied that they were contracted to be married:

“Examined whether I called him Husband, and he me Wife.— I do Answer, that there was Communication in the House that we Two should Marry together; and some of his Enemies had Envy thereat, wherefore he desired me to give him Leave to call me Wife, and that I would call him Husband. And I said I was content. And so after that, commonly he called me VVife, and many times I called him Husband. And he used many Times to Kiss me, and so he did to many other commonly in the House… As for Carnall Knowledge, I confess as I did before, that diverse Times he hath lyen with me, sometimes in his Doublet and Hose, and Two or Thre Times naked: But not so naked that he bad nothing upon him, for he had al wayes at the least his Doublet, and as I do think, his Hose also, but I mean naked when his Hose were putt down.”

In a letter to Henry she implied that Dereham had forced himself on her:

“Also Frauncez Derame by many persuasions procured me to his vicious purpose and obteyned first to lye uppon my bedde with his doblett and hose and after within the bedde and fynally he lay with me nakyd and used me in suche sorte as a man doith his wyfe many and sondry tymez but howe often I knowe not and our, company ended almost a yere before the Kynges majestye was maried to my lady Anne of Cleve and contynued not past oon quarter of a yere or litle above. Nowe the holl trouythe beyng declared unto your majestye I most humble beseche the same to considre the subtyll persuasions of young men and the ignorans and fraylnez of young women.”

Catherine clearly hadn’t learnt from the experiences of her predecessors, Anne Boleyn and Anne of Cleves. Admitting to a precontract with Dereham might have saved her life since, having been consummated, it would have invalidated her marriage to the king; denying it meant that her dalliance with Culpeper came dangerously close to treason. Henry’s advisors on the other hand were only too aware and interrogated the dowager duchess about a possible precontract between Dereham and her step-granddaughter.

Denying the precontract sealed Catherine’s fate. Henry now sought to establish adultery, which again proved easier than establishing a precontract. She had admitted to secret meetings with Culpeper, calling him her “little sweet fool” and giving him presents, but both denied a sexual relationship. Nevertheless, on 1 December Dereham and Culpeper were convicted of treason and on 10 December Culpeper was beheaded and Dereham hanged, drawn and quartered. Their heads were put on spikes and displayed on London Bridge, where they remained until 1546.

On 21 January an Act of Attainder was passed against Catherine, which found her guilty of wanting to “return to her old abominable life” with Dereham and to “bring her vicious and abominable purpose to pass with Thos. Culpeper.” Since a mere intention wasn’t actually treason, it also declared “that an unchaste woman marrying the King shall be guilty of high treason” and on 13 February Catherine was executed. The same bill found the elderly dowager duchess, her eldest son William, his wife, two of her daughters and several of their servants, who had all spent Christmas in the Tower, guilty of concealing this treason. They were sentenced to life imprisonment and their property confiscated.

As the above examples show, even a King and head of the Church couldn’t simply declare that a precontract existed; he had to prove it and there was no guarantee that he would succeed. Henry’s position was well-established – Anne Boleyn’s trial took place in the 27th year of his reign, that of Catherine Howard in the 32nd – and he had all the tools of his office(s) at his disposal to assemble evidence and intimidate witnesses, including imprisonment and torture, but he only succeeded in one case – Anne of Cleves – and only because the lady played along. Canon law hadn’t changed since the Middle Ages, so let’s compare Henry’s experience to Richard’s claim of a precontract between Edward IV and Eleanor Talbot.

While Richard had been confirmed as Lord Protector by the council and was working in co-operation with its members, he was in a considerably weaker position than Henry. He wasn’t an anointed king, merely de-facto regent, had only recently arrived in London and only had 200–300 retainers at his disposal (500–600 including Buckingham’s men). Unlike Anne of Cleves, neither Stillington nor Lady Eleanor’s family appear to have been rewarded for accepting the precontract. There’s also no indication that they were intimidated, imprisoned or tortured, like the families and supposed lovers of Anne Boleyn and Catherine Howard.

The Crowland Chronicle, written with hindsight in 1486, speaks of “armed men, in fearful and unheard-of numbers, from the north, Wales, and all other parts” marching on London in response to Richard’s letters, but Simon Stallworth, in his letter to Sir William Stonor dated 21 June 1483, doesn’t sound fearful or suspicious. On the contrary, he assumes they’re a peace keeping force:

“Yt is thoughte ther shalbe 20 thousand of my Lorde Protectour and my lorde of Bukyngham menne in London this weike to what intent I knowe note but to kep the peas.”

As it turned out, the 4000 men who answered Richard’s call didn’t arrive until his coronation and were sent home without seeing any action. Clearly he expected trouble, either due to a plot against his life, as he claimed in his letters, or the revelation of the precontract or both, but in the end reinforcements weren’t needed. The executions of Hastings, Rivers, Grey and Vaughan may have contributed to a general feeling of uncertainty, but a contemporary fragment in the Cely papers suggests that, far from seeing Richard as the culprit, people were worried about his safety:

“… there is great rumour in the realm, the Scots have done great [harm] in England, the Chamberlain is deceased in trouble, the Chancellor is desperate and not content, the Bishop of Ely is dead, if the King, God save his life, were deceased, the Duke of Gloucester were in any peril, if my Lord Prince, who God defend, were troubled, if my lord of Northumberland were dead or greatly troubled, if my Lord Howard were slain.”

The logical conclusion therefore has to be that the precontract was accepted because the evidence – at the very least Stillington’s testimony – was convincing.

Sources:

H. A. Kelly: “The Matrimonial Trials of Henry VIII”, Wipf and Stock; Reprint edition (2004)

Annette Carson: “Richard Duke of Gloucester as Lord Protector and High Constable of England”, Imprimis Imprimatur (2015)

Claire Ridgway: “Henry Percy Won’t Play Ball”, The Anne Boleyn Files http://www.theanneboleynfiles.com/13-may-1536-henry-percy-wont-play-ball

Marilee Hanson: “The relationship between Henry Percy & Anne Boleyn 1523”, English History http://englishhistory.net/tudor/henry-percy-anne-boleyn-relationship

Claire Ridgway: “9 July 1540 – The End of Henry VIII’s Marriage to Anne of Cleves”, The Anne Boleyn Files http://www.theanneboleynfiles.com/9-july-1540-the-end-of-henry-viiis-marriage-to-anne-of-cleves

Marilee Hanson: “Anne of Cleves: Facts, Biography, Information & Portraits”, English History http://englishhistory.net/tudor/monarchs/anne-of-cleves

Marilee Hanson: “Catherine Howard: Facts, Biography, Portraits & Information”, English History http://englishhistory.net/tudor/monarchs/catherine-howard

Claire Ridgway: “The Fall of Catherine Howard”, The Anne Boleyn Files http://www.theanneboleynfiles.com/the-fall-of-catherine-howard

Claire Ridgeway: “The Bill of Attainder against Catherine Howard and Lady Rochford”, The Anne Boleyn Files http://www.theanneboleynfiles.com/21-january-1541-bill-attainder-catherine-howard-lady-rochford

Marilyn Roberts: “470 Years Ago – Terror for the Howards at Christmas”, The Anne Boleyn Files http://www.theanneboleynfiles.com/470-years-ago-terror-for-the-howards-at-christmas

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[1]. 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[2]. 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.”[3] 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[4].

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.[5] 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[6]. 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. [7]. In law, if something was so well known as to be notorious ‘neither witness nor accuser is necessary’.[8] 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[9].

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[10]. 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.”[11] I have little doubt in my own mind that Parliament was entitled to pass king Richard’s Act of settlement[12]. 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.

[1]. 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.

[2]. 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.

[3]. 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.

[4] 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.

[5] 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.

[6]. 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.

[7].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).

[8]. See PROME; ibid. See also Helmholz at page 98.

[9]. 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.

[10]. See PROME (R Horrox Ed) Introduction- Richard III Parliament, 24 January 1483, Vol XV at pages 5 and 7

[11]. 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.

[12]. 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/

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