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1484 – TITULUS REGIUS: FACT OR FICTION?

 

Introduction

‘This is indeed a mystery’ I remarked.’ What do you think it means?’‘I have no data yet. It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suite theories, instead of theories to suite facts.’

 

In Arthur Conan Doyle’s short story A Scandal in Bohemia,[1] Holmes and Watson are puzzled by an anonymous and undated note, which they have received. It was the only case in which Holmes was worsted by a cleverer adversary: the beautiful Irené Adler. Holmes seldom referred to her as anything other than the Woman because in his opinion ‘she eclipses and predominates the whole of her sex’. Since this story first appeared in 1888, Holmes’ dictum has become the cornerstone of forensic investigation methodology. Criminologists, detectives, judges, lawyers, doctors, scientists, and many other professionals rely on factual data to support their judgement or opinion.

 

Facts are important to historians also; they are the building blocks of history and historians must not get them wrong; as AE Houseman famously remarked, ‘accuracy is a duty not a virtue’. The difficulty for English medieval historians is that the facts they rely on are often found in old manuscripts, which are hand written in ancient Latin or French by men who were not witnesses to the events they record, and whose narrative may reflect their particular political or geographic point of view. These difficulties increase where contemporary records are incomplete or not available. The historiography of King Richard III suffers from most if not all of these problems. Almost all the accounts we have of his life and reign were written by a small number of people in southern England after his death. We know quite a bit about how the people in London and the south viewed his reign and character, but little of what the rest of the country thought. Our opinion of Richard has been pre-determined for us by people who, for whatever reason, took a particular a view and preserved those ‘facts’ that supported their view. The generally poor opinion of King Richard III stems from this incomplete material: the Tudor narrative. Horace Walpole, writing during the age of reason was not impressed; he declared that while Richard might well be as execrable as they say he was, there is no reason to believe so on the available evidence.[2]

 

Charles Ross in his biography of King Richard identified the ‘extraordinary problems of the evidence’ as the key issue for those seeking answers to the vital questions of when and why Richard claimed the throne.[3] They have to deal with the paradox of his good reputation prior to April 1483 and the crimes he is supposed to have committed thereafter. Ross’ modern solution to this problem was to ignore the Tudor narrative in favour of inferring Richard’s ‘character and motives from a close scrutiny of the events themselves without preconceptions’; it has, he says, resulted in a more critical appraisal of the Tudor narrative and a better understanding of its value. Such objectivity is to be applauded; though, it does come at a cost. Ross also considers that because historians now have a better understanding of the Tudor tradition and of fifteenth century English politics, they are unwilling to throw the ‘whole bodily out of the window, especially when it can be confirmed by contemporary evidence.[4] What worries me about that proposition is that it presupposes that the contemporary sources and the Tudor writers are independent of each other: they are not. Of the major chronicles for this period, only Mancini’s narrative was written in King Richard’s lifetime. The other major source is the Second Continuation of Crowland, written about eight months after Bosworth. The English vernacular chronicles were not written until a decade or more afterwards and are so confused and contradictory that they have little or no probative value. Furthermore, the source of these accounts and also of some contemporary foreign chronicles was a member of a cabal of Tudor malcontents who wanted to seize Richard’s throne. It is illogical to think that two separate accounts emanating from the same witness can corroborate each other. The essence of corroboration is that two different witnesses give the same evidence independently.

 

Though modern authors may claim to be objective, the reality is that it is almost impossible to avoid taking sides. The contradiction in Richard’s reputation is such as raise ‘unhelpful issues of guilt and innocence’ within a hostile, adversarial situation in which every scrap of information is heavily scrutinized in case it sheds light on the mysteries of Richard’s protectorship and reign.[5] Consequently much of Ricardian historiography evinces a preconception of his guilt or innocence that biases judgment. In his defence, Richard’s apologists tend to excuse even his most doubtful actions; whereas his critics’ interpret everything he does negatively and in terms of his perceived vices: violence, greed, deceit, ruthless ambition and murderous intent. His good acts are regarded as self-serving; if he is kind it is because he wants something, if he is generous he is ‘buying’ support, if his justice is firm he is a ruthless tyrant and if his sleep is disturbed by grief for his dead son and wife it is because he has a bad conscience. This preconception stems, I believe, from historical hindsight; the outcome of events in the summer and autumn of 1483 is now a matter of historical record and some historians assume that because they resulted in Richard’s accession, he always intended that outcome. That conclusion is, of course, a non sequitur and, perhaps, an example of the ‘insensible twisting of facts to suit theories’ that Holmes’ deprecates. It is also an illustration what happens when historians’ copy from each rather than analysing the prime source material de novo and critically.

 

I see this tendency in two post 2012 biographies by David Horspool and Chris Skidmore respectively.[6] They are well written and researched, and make good of use local records, contemporary private documents and correspondence, and obscure manuscripts, identified only by their National Archives reference number, to highlight the minutiae of Richard’s life and reign. Unfortunately, on the ‘key questions of when and why Richard aimed for the throne, neither book tells us anything we didn’t already know or mounts an argument we haven’t heard before, or even contains an original thought. That is not a personal attack on the authors since I believe they genuinely aspired to do more; it is, however, a disappointment. David Horspool sought neutrality; he said he wanted to write an account of Richard’s life ‘without keeping a foot in either the anti or pro Ricardian camps’. Similarly, Chris Skidmore wanted to bring balance and ‘more accurate’ scholarship to his assessment of Richard. What I find particularly upsetting is the possibility that these authors, however sincere they are, may actually believe that the habitual, one might almost say ritualistic, recycling of the conventional Tudor narrative could pass for balanced and accurate scholarship. That said, I do think there is some force in the proposition explored by both writers (and others) that the pre-contract — whether true of false — was a device for deposing Edward V to pave the way for Richard’s accession. What I do not accept, however, is that he was motivated by personal ambition or that it was pre-planned. That explanation of his behaviour is superficial and smacks of lazy history. It gives too little weight to the wider impact of complex factional divisions in 1483, or the fear of civil war that was undoubtedly on the minds of Richard and the members of parliament. It also pays too little heed to the constitutional view that parliament as the national assembly had unfettered authority to pass legislation affirming the royal title and obviating the need for litigation, which was in any case impracticable.

 

Consequently, this seems an appropriate subject for me to write about; especially since it is five hundred and thirty-four years ago this month that parliament passed Titulus Regius onto the statute book. It is also an opportunity for me to revisit my previous articles on this subject and to renovate them with new research and fresh thinking. I make no apology for that. However, in view of the complex arguments raised by both sides in this controversy, I think it best to first summarise the relevant facts insofar as we know them.

 

The summer of discontent

The untimely death of Edward IV in the spring of 1483 exposed the deep division and animosity between the queen’s kindred, the old Yorkist nobility and dissident Lancastrians, which hitherto had been checked by the force of Edward’s personality and his political acumen. The king was barely laid in his coffin before Queen Elizabeth, her sons Thomas Marquis of Dorset and Sir Richard Grey, and her brother Anthony Earl Rivers attempted to seize the reins of power by crowning the boy King Edward V before suitable arrangements could be made for his minority rule. They were particularly keen to marginalise Richard Duke of Gloucester, Edward’s paternal uncle and the senior royal duke, and the man whom the late king had nominated as Lord Protector and Defender of the Realm. Gloucester was on the Scottish border when he heard of his brother’s death. After a respectful but brief period of mourning, he came south to a pre-arranged rendezvous with the king, who was also travelling to his capital accompanied by his maternal uncle Rivers, his half-brother Sir Richard Grey and two thousand Woodville soldiers.

 

The story of Gloucester’s bloodless coup at Stony Stratford on the 30 April and 1 May 1483 is too well known to need repeating. The upshot was that Rivers and Grey were arrested with their servants, for plotting to kill the dukes of Gloucester and Buckingham (who had rendezvoused with Gloucester at Northampton). The Woodville soldiers were dispersed peacefully and the king continued to London in the company of his uncle Gloucester and his cousin Buckingham. The Queen panicked on hearing of the arrests and fled into the comfortable sanctuary of Westminster Abbey, taking her youngest son and heir presumptive, and her daughters with her. On the 10 May 1483, the King’s Council unanimously appointed Richard duke of Gloucester as Lord Protector and Defender of the Realm pending the king’s coronation, which was fixed for the 22 June.

 

We do not know much about events during May and early June. The impression we have is that as late as the 5 June 1483 preparations for the coronation were proceeding normally. On that day Gloucester arranged for those who were to be knighted by King Edward, to come to London at least four days before the coronation. On the same say he wrote to the citizens of York apologising for the fact he that was too busy with the coronation preparations to deal with their recent request for financial relief. I mention these matters because of their ordinariness, which is in stark contrast to Gloucester’s second letter to the York citizens five days later. In that letter, he requested troops to help against the queen and her blood adherents who were planning to murder him and Buckingham. The inference that he was suddenly alarmed by a murderous conspiracy is doubtful, as he had known about that risk since Stony Stratford or earlier. If he was responding to that threat, he had left it too late. The troops from York could not reach London much before the end of June. I believe that something else happened between the 5 and 10 June 1483 to alarm Gloucester.

 

The ‘wicked bishop’

Philippé De Commynes a Flemish knight in the service of Louis XI provides a possible explanation for his change of attitude.

           

 ‘The Bishop of Bath and Wells (Robert Stillington) revealed to the duke of Gloucester that            King Edward, being enamoured of a certain English lady promised to marry her provided he could sleep with her first and she consented. The bishop said that he had married them             and only he and they were present. He was a courtier so did not disclose this fact and           helped to keep the lady quiet, and things remained like this for a while. Later King Edward       fell in love again and married the daughter of an English knight, Lord Rivers.’ [7]

 

If true, it made Edward’s subsequent marriage to Elizabeth Grey bigamous and their offspring illegitimate, and unable to succeed to the throne.[8]   I believe it was Stillington’s news that so shocked Gloucester. Sir Clement Markham suggests that Stillington told him and the council about the pre-contract on Sunday the 8 June 1483.[9] All we know about this meeting is what we can glean from a letter written by Simon Stallworth to Sir William Stonor dated the 9 June, in which he writes:

           

 ‘…My Lord Protector, my Lord of Buckingham and all other Lords, as well temporal as      spiritual [sic] were at Westminster in the council chamber from 10 until 2 but there was          none that spoke to the queen. There is great business against the coronation, which shall         be this day fortnight as we say…’[10]

 

The meeting lasted for four hours and was evidently not routine. The fact that nobody spoke to the queen suggests that negotiations with her had broken down and that something significant was afoot. Stallworth’s phrase”…great business against the coronation…” is ambiguous: perhaps deliberately so. Most historians think he meant ‘in preparation for or in anticipation of the coronation’ but such an interpretation is not supported by Stallworth’s use of the phrase ‘great business’, which hardly suggests routine administrative affairs. Moreover, the word ‘against’ has eighteen different meanings in the Oxford English Dictionary, five of which use it in the sense of ‘resistance to or opposition to…’ It is possible that Stallworth is referring obliquely to a discussion about Stillington’s revelation, including the propriety of proceeding with the coronation. This possibility is not entirely speculative, since within a week of the letter the coronation was postponed and soon after it was cancelled.

If we take as a working hypothesis that Gloucester was convinced it was true by the 10 June, it puts a different complexion on his second letter to York. It raises the possibility that far from, responding to a threat to his person, Gloucester was preparing for what may happen once Stillington’s allegation was made public. I doubt not that the fear of civil war weighed heavily on his mind; nor do I doubt that he was also conscious of the personal consequences for him and the opportunities it presented. The letter to York provides a convenient cover story, important enough for them to treat it urgently but that gives nothing new away if it falls into the wrong hands. Things came to a head on the morning of Friday 13 June 1483 at the Tower. There, Gloucester met Lord Hastings, Lord Stanley, the Archbishop of York (Rotherham), the Bishop if Ely (Morton) and others, whom he believed were conspiring against him. By lunchtime on the 13th the whole nature of the protectorship had changed irrevocably. Hastings was summarily executed on a convenient log. The Archbishop of York, the Bishop Ely and sundry others were arrested, and there was panic on the streets of London. Three days later Thomas Bourchier, Archbishop of Canterbury persuaded the Queen to allow the duke of York to leave sanctuary to attend his brother’s coronation. By lunchtime Gloucester had the king and the heir presumptive in his care and control. By teatime, in council, Edward’s coronation was postponed from June to November. Despite the turmoil, which these events inspired, Londoners in general blamed Woodville inspired conspirators for the unrest.[11] It was about this time that Gloucester made the decisive decision to issue warrants for the execution of the king’s uncle Rivers, his brother Sir Richard Grey and others. It is confirmation of Gloucester’s intention to claim the throne; he would not otherwise have ordered the execution of the king’s blood relatives.

 

Bastard slips shall not take root

Bastard slips shall not take root: that was the uncompromising theme of Dr Ralph Shaa’s sermon on the 22 June 1483 at St Paul’s Cross. Taking his text from the Old Testament[12], Dr Shaa preached to the dukes’ of Gloucester and Buckingham, and a ‘huge audience of lords spiritual and temporal[13] on the illegitimacy of King Edward IV’s children. Exactly what he said, however, is a source of great controversy. The crux of the problem is the paucity of reliable accounts of what was said between 22 and 26 June 1483. The extant chronicles are, to use Paul Kendall’s colourful phrase, a ‘mosaic of conflicting detail’ about Gloucester’s title to the throne.[14] This confusion is in sharp contrast to the certainty of the Parliamentary Roll, which set out the chain of events and royal title with admirable clarity. Nevertheless, many historians are convinced that the allegations against the King’s legitimacy were invented by Gloucester to justify his usurpation. The best way to get to the bottom of that conundrum is to follow the chronologically of events.

 

Dr Shaa’s sermon was not a spontaneous outpouring of public indignation at the illegitimacy of Edwards’s offspring. It was pre-arranged by Gloucester or by others on his behalf to bring to public notice the illegitimacy of the dead king’s children and to put forward his royal title. Though, he was keen to distance himself from the question of deposition, Gloucester’s presence at the sermon is another indication of his intention to replace his nephew as king. Mancini describes how it was said that ‘the progeny of King Edward should be instantly eradicated, for neither had he been legitimate king, nor could his issue be so. Edward was, they said, conceived in adultery.’ This narrative is the only surviving account of the meeting written during Gloucester’s lifetime. [15] However, we must treat it with caution since it is hearsay and not eyewitness testimony; it may or may not be correct.   It is noteworthy that Mancini does not mention the pre-contract at this point in his narrative, though he does later on. Similarly, the reliability of the vernacular chronicles is questionable given that they were written a decade or more after Gloucester’s death and after King Henry VII’s deliberate attempt to expunge all knowledge and memory of Titulus Regius and the invalidity of Edward IV’s marriage. The Great Chronicle follows Mancini in alleging that Shaa preached the illegitimacy of king Edward; whereas, Fabyan says that Shaa also declared the bastardy of Edward’s children. It is this confusion over what was or was not said by Dr Shaa that lies at the heart of the controversy. The importance of Shaa’s sermon, however, lay in the fact that it set in motion a train of events that were to put Gloucester on the throne with astonishing speed, even by modern standards. Within three days of this sermon, he was offered the crown. The next day he was king of England.

 

With the exception of Mancini, the sources refer to a meeting that took place on Tuesday the 24 June at the Guildhall, with the Duke of Buckingham in the chair. Present were the Mayor of London, his brethren ‘and a good many’ London citizens. Buckingham is supposed to have spoken wonderfully well for “a good half hour” on behalf of the duke of Gloucester, extorting the audience to admit the Lord Protector as their liege lord. Fabyan writes that Buckingham was so eloquent that he never even stopped to spit. The audience ‘to satisfy his mind more in fear than for love, had cried in small number yea! Yea!’.[16] Mancini records a speech made by Buckingham to the lords on the 24 June. This may be the same meeting referred to above, though this is not absolutely clear. According to Mancini, Buckingham argued at this meeting that ‘it would be unjust to crown this lad, who was illegitimate, because his father King Edward [IV] on marrying Elizabeth, was legally contracted to another wife to whom the [earl] of Warwick had joined him. Indeed on Edward’s authority the [earl] of Warwick had espoused the lady by proxy — as it is called — on the continent.’ [17] This is an undoubted reference to a pre-contract, although Mancini has managed to get the details of Edward’s amour wrong. Our other primary source, the Second Continuation of the Crowland Chronicle, simply records Richard’s title precisely as it is put in Titulus Regius.

 

The following day, that is the 25 June 1483, the three estates of the realm (the lords spiritual, the lords temporal and the commons of England) met at Westminster. Gloucester’s decision to stop the writs of supersedeas cancelling Edward V’s planned parliament was probably deliberate. He doubtless saw the value of having the members of parliament in London to consider his claim to the throne. Although this was not a properly constituted parliament, pretty much all its members were present. Neither was this a tame Ricardian quorum; the lords spiritual, temporal and the commons who attended were those who would have constituted Edward V’s first parliament.   On any view this was a gathering of national authority.[18] Gloucester’s claim was put forward precisely; some parts were good, others not so good. The evil done to the realm by the Woodvilles, the falseness of Edward’s marriage to Elizabeth Grey were put forward and discussed by the three estates. The meeting approved a petition to Gloucester that he should assume the seat royal. On the 26 June 1483 at Baynard’s Castle the petition was presented to the duke who was pleased to accept it. He dated his reign from that day.

 

‘Doubts, questions and ambiguities’

King Richard III was crowned on the 6 July 1483. If he hoped it would unite the various noble factions behind a Yorkist king his hope was dashed. The power struggle that bought him to the throne was not decided; it had merely changed its nature. What we now call ‘Buckingham’s rebellion’ of October and November 1483 was not a national uprising against King Richard. It was a deliberate and carefully prepared dynastic challenge to his crown by the supporters of Henry Tudor assisted by the Woodvilles and disaffected Yorkists. Although, Richard crushed the rebellion and executed Buckingham, neither its cause nor the rebels were exterminated. Henry Tudor continued to make mischief from the sanctuary of France.

 

King Richard faced another and more urgent problem: Edward V’s deposition and his accession happened so quickly that many of his subjects were bemused by what had occurred. Quite apart from the effect of a rumour that two princes’ were dead, people had qualms about the status of the June petition and Richard’s election to the crown at a non-parliamentary meeting. The author of Titulus Regius recognised this problem and attempted to deal with it in the preface. He acknowledged that because the three estates were not on the 25 June assembled in proper form of parliament, ‘various doubts, questions and ambiguities are said to have been prompted and engendered in the minds of various people’. The preface continues, ‘…in order the truth may be known and perpetually kept in mind’ it is necessary for the petition to be incorporated in an act of settlement validating Richard’s royal title with the authority of parliament and removing ‘…the occasion for all doubts and uncertainties and all other legal consequences that might thereof ensue.’ [19] This is an important point, to which I shall return.

 

It is necessary to preface my following analysis with some general observations. First, when considering Titulus Regius from a historical point of view, it must always be borne in mind that it is, a legal document in which the draftsman (almost certainly a canon lawyer: possibly Robert Stillington Bishop of Bath and Wells) has been careful to cover all the key elements of the case. Charles Ross was wrong to dismiss it as ‘pure propaganda’; though, it is by its nature a partisan document intended to assert Richard’s royal title. Moreover, the attack on the validity of Edward IV’s marriage and the legitimacy of his children was a deliberate attempt to re-define a political problem as a legal one and therefore not entirely convincing in establishing its proponents good faith. Although there was neither a law of succession in medieval England nor hardly any strict rules governing the process, it was — with some notable exceptions — customary for the throne to pass from the king to his eldest surviving son. Prince Edward was the dead king’s eldest son and everyone naturally expected him to succeed to the throne; to deprive him of this inheritance on a point of law was incomprehensible to some people and seemed unjustified to others. In particular, parliament’s bastardization of Edward V without recourse to the judgement of a church court has attracted much historical criticism. It is important to understand in that context that Titular Regius is also an important constitutional document in which the author has been equally careful to define parliaments authority to validate King Richard’s title in legislation without recourse to litigation. It is important to distinguish between these legal and constitutional points.

 

Second, it is essential not to over simplify the circumstances leading to Titulus Regius in 1484. The common tendency to interpret them solely in the context of King Richard’s personal ambition ignores the wider influence and dynamics of factional interests. None of the legal impediments to Edward V’s accession were insuperable. His bastardy could have been ignored. Parliament could, had it so wished, have passed an Act of Succession for Edward V validating his title forever. After all, Edward IV and Elizabeth had lived openly as man and wife for many years and their son Edward Prince of Wales was acknowledged on oath by the entire English nobility as the heir apparent. Parliament could just as easily have revoked Clarence’s attainder to allow his son Edward Earl of Warwick to succeed to the throne ahead of Richard. And yet they did nothing to stop Titulus Regius: why? That is the key question in this debate

 

Third, too much emphasis is placed on the pre-contract allegation at the expense of considering Titulus Regius as a whole. The marriage of Edward and Elizabeth’s was attacked on four separate grounds, only one of which needed to be proved for the marriage to be invalidated. In this regard, the charge of witchcraft is significant. It was not a supplementary charge, and the assertion that it was notorious posed a serious problem (which I will come to) for those attempting to defend the marriage on legal grounds.

.

Titulus Regius

The main body of Titulus Regius is taken verbatim from the petition and is organised in three parts. The first part is an attack on Edward IV’s reign. Much has been made of this but it is a convention common to this type of document. The second part sets out the grounds for the disqualification of Edward’s children’ from the royal succession. The third part is a recapitulation of Richard’s title as the rightful king of England according to God’s law, natural law and the ancient customs of the realm by right of succession and election. It is, essentially, an attack on Edward IV’s marriage to Elizabeth Grey on four grounds.

’The ‘feigned marriage between Edward and Elizabeth Grey was ‘presumptuously made without the knowledge or the assent of the lords of the land.’

           

And also by sorcery and witchcraft committed by the said Elizabeth and her mother Jaquetta duchess of Bedford as is the common opinion of the people and the public voice   and fame throughout the land, and as can be adequately proved hereafter at a convenient time and place if thought necessary.

 

The said feigned marriage was made privately and secretly without publishing of bands, in a private chamber and a profane place and not openly in the face of the church according to the law of God’s church but contrary to it and the law and custom of the Church of England.

 

And also how, when he contracted the feigned marriage and previously for a long time after the said King Edward was and stood married and troth plighted to one dame Eleanor Butler, daughter of the earl of Shrewsbury with whom the said King Edward had made a contract of matrimony long before he made the feigned marriage with the said Elizabeth Grey.’

The document concludes that if all this is true ‘as in very truth it is’, then Edward and Elizabeth had lived together in adultery and that their children were bastards ‘unable to inherit and claim anything by inheritance by the law and custom of England.‘ Clarence’s son was also barred from the succession, as his father was a convicted traitor.[20]

 

It is necessary first to first dispose of a claim that the Titulus Regius did not reflect Gloucester’s royal title put forward in June. Charles Wood raised this issue over half a century ago.[21] His sole point was that the text of the petition as set down in the Parliamentary Roll does not agree with the various chronicle versions of the royal title claimed in June. He overlooks the fact that the chronicles also differ from each other and deduces that the original petition was altered later, possibly more than once. He further deduces that Mancini’s account is the correct one and dismisses the second Continuation of Crowland’s version because it is based on Richard’s Act of Settlement rather than actual events. He therefore argues that it cannot be relied upon as corroboration of the Parliamentary Roll. His conclusion is that Richard was clearly ‘making it up as he went along’ to justify his usurpation, by, for example, introducing Eleanor Butler who was conveniently dead. Others have since followed Wood’s line of argument uncritically.

 

The answer to this point is straightforward and contained in one of Richard’s signet letters. On the 28 June 1483 (that is two days after his accession), he wrote to the Captain of Calais and the townspeople in response to their concerns about the events in England and their effect on the garrison’s oaths of allegiance to the king etc. In his reply, Richard mentioned his accession and his royal title. After referring to the June petition, the letter goes on ‘…the copie of the whiche bille [petition] the king wille (i.e. desired/instructed/ordered) to be sent unto Calais and there to be redd and understanded togeder with these presentes’ Wood is not alone in construing this to mean that the petition will follow after the letter. He has, however, misread the letter, since it says no such thing. From their ordinary, everyday meaning, Richard’s words indicate that the petition was enclosed with the letter.[22]

 

David Horspool follows Wood’s line; he alludes to the difficulty of understanding the precise nature of Richard’s claim to the throne, ‘let alone what Richard actually believed’. [23] His argument on this point is best put in his own words: ‘The argument that the text of the petition was enclosed with the letter to Calais does not seem convincing as the letter clearly states that the petition “will be sent unto Calais and ther (sic) to be redd & understanded, togeder with these presentes’.’ I.e. it is not an enclosure but will come on later…’ Unfortunately, any misunderstanding’ is entirely David Horspool’s and of his own making. It results from a mistake, which were it not so serious might be dismissed as a schoolboy howler. Horspool has misread and misquoted, and thus completely changed the meaning of Richard’s letter by omitting the word ‘to’ after the word ‘wille’ in his extract quoted above. The fact that this misquotation supports his theory about the vagueness of Richard’s royal title may be the coincidental outcome of a careless mistake. It may equally be that his preconceived theory of Richard’s character has ‘insensibly’ led him to twist the facts to fit his theory.

 

Personally, I cannot think of a sensible reason why King Richard would refer in the letter to a petition setting out his title, which said petition was to be read in conjunction with the letter (‘these presents’), and not send the petition. It defies the facts and common sense. I must also question the rationale of Woods reasoning. The idea that the details of Richard’s royal title were changed after the June meeting is not a valid inference to draw from the differences between the various chronicle versions and the Parliamentary Roll text. There are many other reasons why they may differ, not the least of which is that the chroniclers misunderstood what was said. Neither does it follow logically that because Crowland quotes directly from the act of succession he is not reporting what actually happened. I must now turn to the substantive legal arguments for and against Titular Regius; in doing so, I will use headings adapted from the main body of Titular Regius.[24]

 

The ‘feigned’ marriage was made without the knowledge or assent of parliament.

Edward’s failure to get parliamentary approval did not invalidate his marriage to Elizabeth Grey; it was, however, a monumental political mistake since it alienated his most powerful subject, Richard Earl of Warwick (the Kingmaker), and his most ambitious subject and heir presumptive, George Duke of Clarence. Royal marriages were matters of national policy, about which the whole realm had an opinion. A good match with foreign princess bought with it the benefits of alliances, power, prestige and (not to be sniffed at) trade. A king might love where he could; but he married for reasons of state. Edward’s clandestine marriage to Elizabeth Grey was by definition outwith the consent of his subjects. It might not be invalid but it was divisive.

 

The said ‘feigned’ marriage was achieved by sorcery and witchcraft

Everybody knows that the existence of sorcery and witchcraft was taken more seriously in the fifteenth century than it is today: much more seriously in fact. Fifteenth century English society believed implicitly in God and the Devil; in, the goodness of the Holy Spirit and the badness of evil spirits. The ancient arts of magic were widely acknowledged and took many forms. There were some whose activities were innocent, such as those who used herbal lore for healing the sick, or studied astronomy or astrology; however, there were others who practiced black magic. Significantly, cases of Devil worship, while common on the continent, are unusual in accounts of English witchcraft. On the continent, sorcery and witchcraft were held to be heresy, punishable by the most excruciatingly painful death; whereas in England, it was considered to be a felony and therefore not automatically a capital offence.

 

If you were high born, however, an allegation of sorcery and witchcraft could have devastating consequences. For example, in 1419, Henry V’s stepmother the Queen Dowager Joan of Navarre was convicted of witchcraft and imprisoned. In 1441, Eleanor Cobham Duchess of Gloucester was convicted of witchcraft and treason; she was imprisoned for life and forcibly divorced from Duke Humphrey. The draftsman of Titulus Regius knew this when he accused Elizabeth Grey and her mother Jaquetta of bewitching Edward IV into a clandestine marriage. It is not, as some historians seem to think, merely an add-on in the case against Edward’s marriage. The use of witchcraft could invalidate a marriage on its own, either because it caused impotence or the bewitched person could not give an informed consent to the marriage. I doubt that impotence was a problem for Edward IV, so this issue turns on consent, which in the canons falls under the heading of ‘force and fear’. ‘The decretal Cum locum begins “since consent does not take place where there is fear or coercion, it is necessary for all coercion to be eliminated when someone’s assent is required. Now marriage is contracted by consent alone, and, when it is sought the person whose intentions are in question should enjoy full security, lest he say out of fear that he is pleased with something he hates, with the result that usually follows from unwilling nuptials.” ‘ [25]

 

The trial in 1441 of Eleanor Cobham Duchess of Gloucester on charges of sorcery, witchcraft and treason was a precedent and a model for the accusation against Elizabeth and her mother. It is possible that some of the charges against Eleanor Cobham were fabricated in order to discredit her husband Humphrey Duke of Gloucester; but they were not entirely fanciful, since she had in her service priests of doubtful repute and she was politically ambitious. It was ambition that bought her down and destroyed her husband’s influence at court. In 1440, Humphrey was heir presumptive; if the king should die childless before him, Humphrey would succeed the throne. He was, in the general opinion, a man of power at court and influence over the king, much to the chagrin of his political opponents. Unfortunately, rather than wait for nature to take its course Duchess Eleanor tried to peer into the future to see when Henry would die ‘so that she would be queen.’[26] It was a foolish mistake since it played into the hands of her husband’s enemies, who were bent on destroying him. Eleanor Cobham was, herself, hated and mistrusted for her vaulting ambition, her self-importance and her voracity. In June 1441, her associates Roger Bolingbroke, Thomas Southwell, John Home and Marjery Jurdane (or Jourdemain, also known as the witch of Eye [-in-Westminster]) were arrested and charged with conspiring to bring about the king’s death: Bolingbroke through necromancy, Southwell by celebrating Mass unlawfully with strange heretical accoutrements and Home for taking part with both. Jurdane confessed that she had been long employed by the duchess as a sorceress to concoct potions and medicines to ‘make Duke Humphrey love and marry her.’ Thus incriminated, Eleanor was questioned by an ecclesiastical court on the accusations of sorcery and witchcraft, and by the King’s Council in connection with an alleged conspiracy to murder the king. At first, she strenuously denied all the allegations, but following the admissions by Bolingbroke and Jurdane, she confessed to five of the twenty-eight charges on the indictment, including the fact that she used witchcraft to make duke Humphrey marry her. After further enquiries, Bolingbroke, Southwell, Home and Jurdane were indicted on counts of treason, felony and sorcery in that ‘on various occasions after April 1440…they had used magic figures, vestments and instruments, and invoked evil spirits to anticipate when the [king] would die.’[27] It was also alleged that Eleanor Cobham as wife to the heir presumptive wanted to be queen and wanted to know when it would happen. The outcome was, of course, inevitable. Bolingbroke suffered the full horror of a traitor’s death; Jurdane, of a witch’s death. Southwell died in custody before he could be brought to the scaffold (suicide?). Home was pardoned.

 

For her spiritual offences, Eleanor Cobham was condemned by an ecclesiastical court of bishops to do public penance and divorced from her husband. She was never tried on the charge of treason. Instead, the King’s Council made administrative arrangements for her to be imprisoned for the remainder of her life. Duke Humphrey was by this time powerless to protect her. Nonetheless, her imprisonment without trial raised certain ‘doubts and ambiguities’ in the minds of some, about whether her case had been resolved by due process of law. It was clear that English peers were entitled to be tried by the judges and peers of the realm; however, there was no provision for the trial of a peeress. Consequently, in 1442 a petition was presented in parliament ‘that all doubt and ambiguity about the trial and judgement of (Eleanor Cobham’s) conviction for treason and felony be removed’. The trial for peeresses was put on the statutory basis that the ‘judges and peers of the realm’ must try them. Eleanor Cobham died still a prisoner in 1457.[28]

 

The allegation that Elizabeth and her mother had bewitched Edward into marriage is not the only allegation of witchcraft made against members of the Yorkist royal family: nor is it even the first. During Warwick’s rebellion of 1469/70, while the king was a prisoner in Warwick castle, Thomas Wake, one of Warwick’s men, accused Jaquetta of witchcraft. The details of her offence are obscure but it seems that Wake brought to the castle a small lead figure fashioned like a man. The figure was broken in the middle but had been repaired with wire. Wake said that Jaquetta made the figure for use in witchcraft. He also produced John Daunger a witness who said that Jaquetta had two more figures: one for the king, the other for the queen. As there is no accusation that she actually used the figure for supernatural purposes and unless it was held that the mere possession of a lead figures amounted to witchcraft, it is difficult to see on these facts what evidence there was to justify a prosecution. But that is hardly the point, since this accusation was, in all probability, an early attempt to impugn the validity of Edward’s marriage to Elizabeth; and it had Warwick’s bungling footprints all over it. Fortunately, for Jaquetta, the outcome was as predictable as the allegation. Edward recovered control of the kingdom and, unsurprisingly, the case against Jaquetta collapsed. Wake, who had a personal grudge against Jaquetta’s husband, Lord Rivers, was accused of being malicious and Daunger retracted his evidence. In February 1470 the King’s Council (Warwick being present) formally exonerated Edward’s mother-in-law.

 

Accusations of witchcraft continued to hound the royal family. The duke of Clarence’s conviction and execution for treason has its genesis in the earlier trial and convictions of Thomas Burdet, John Stacy and Thomas Blake for imagining the king and his heir’s deaths by necromancy. Burdet was a servant and close personal friend of Clarence. His involvement in a treasonous plot that could only benefit Clarence, threw suspicion on the duke who made things worse by challenging, what seems to have been, a just conviction and by accusing the king of practicing necromancy.[29] In 1483, Gloucester accused Elizabeth Woodville and her supporters of forecasting his death. I think we can disregard the assertion of the later Tudor historians that he also accused Elizabeth of bewitching his body. King Richard has, himself, disproved that possibility from the grave. I do not offer these examples as proof of the allegation in Titulus Regius but as an indication of the notoriety and significance of witchcraft/sorcery within Yorkist royal circles. The draftsman of Titulus Regius obviously appreciated this point since he inserted a clause at this point stating that the invalidity of Edward IV’s marriage to Elizabeth Grey was a matter of public notoriety; thus reversing the burden of proof.[30] In law, if something was so well known as to be notorious ‘neither witness nor accuser is necessary’.[31] Henry Kelly’s assertion that notoriety only applied to the witchcraft charge and not to the pre contract is irrelevant, since Titulus Regius raised a presumption that the marriage was invalid and everybody knew it was; therefore the burden of proving it was valid fell on Edward and Elizabeth’s children or Elizabeth. Furthermore, Edward’s marriage to Eleanor Butler was secret; it could not by definition be notorious.

 

That is an important point since the circumstances of the wedding are inconclusive. The best account comes from the pen of Robert Fabyan and was written thirty years or more after the event he describes.

    ‘In most secret manner, upon the first day of May, King Edward spoused Elizabeth, which        spousals were solemnised early in the morning at a town called Grafton, near Stony Stratford; at which marriage were no persons present but the spouse, the spousess, the Duchess of Bedford her mother, the priest, two gentlewomen and a young man to help the priest sing. After which   spousals ended, he went to bed, and so tarried there three or fours hours, and after departed  and rode again to Stony Stratford, and came as though he had been hunting, and there went to  bed again’

 

It is a plausible story of a secret marriage; the date and the location of the king are corroborated from contemporary records of his known movements. There is nothing substantive in this narrative to support the proposition that Edward was bewitched into a marriage he did not want other than Fabyan’s insinuation about ‘What obloquy ran after this marriage, how the king was enchanted by the Duchess of Bedford and how after he would have refused her‘, which, infuriatingly, he passed over, along with ‘many other things concerning this matter’. This and perhaps the fact that the 30 April was St Walpurgisnacht (otherwise known as the ‘night of the witches’), has encouraged speculation that Edward might have attended a Black Mass at Grafton at which potions, and aphrodisiacs were used to enhance sexual pleasure and to deprive Edward of his senses, so that he could not say no to the marriage.[32] It is not impossible that that is indeed what happened but this material does not prove it. The contrary argument is that Fabyan got the date wrong; the wedding actually took place much later, possibly in August.[33] This argument is based on the premise that Edward is unlikely to have been able to keep his marriage a secret for five months, and that some grants made by the king would seem to be unnecessary if he had just married Elizabeth ‘who could be expected to give him an heir of his own body.‘ It is an explanation for Edward’s delay in revealing the marriage but not necessarily the explanation. The problem with this speculation is, however, that it flies in the face of the facts. Edward plainly did escape his attendants to marry Elizabeth in secret. It’s hard to believe that a man of his resourcefulness and sexual appetites could not successfully repeat the exercise. On the second point, there was no guarantee that the queen would or could bear him a son; indeed, she did not actually do so for six years. Besides, there are many other reasons why Edward might have made the grants. It might, for example, have been patronage expected of him by people who knew nothing of his marriage to Elizabeth and he did not wish to encourage their speculation by not making these grants, which on the face of it were reasonable.

 

Ultimately, I believe that the actual circumstances of the wedding are beside the point. The invalidation of Edward’s marriage on the ground that he was bewitched did not (in 1483) turn on proof that he was actually bewitched. Titulus Regius was expertly worded so that it was sufficient for the accusation of witchcraft to be plausible not only because of the notoriety surrounding previous allegations of witchcraft within the royal family but also because for many of the King’s subjects it was the only possible explanation for his otherwise inexplicable marriage to a commoner with no dowry or assets, and a large and voracious family to support.

 

The said feigned marriage was made privately and secretly

The historian Mortimer Levine dismisses the clandestinity of this marriage as a matter of no consequence[34]. He argues that clandestine marriages are valid, binding on the parties and enforceable in law. He is right in principle, but he has over simplified the law in 1483 and jumped to the wrong conclusion. 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 principles used to determine legitimacy, the most famous being ‘legitimisation by subsequent marriage’. This principle also relied on the parents’ good faith. The reasoning was that parents and children should not be penalised 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 consider this issue as the clandestinity of Edward and Elizabeth’s marriage raises the presumption of bad faith, which puts them outside this rule. If their marriage had been open, with banns declared, people would have had an opportunity to object and Edward’s previous marriage to Lady Eleanor Butler might 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.

 

Edward had made a contract of matrimony long before he made the feigned marriage

The pre-contract raises two objections; first, that the pre-contract is an invention and second that in any case it would not, on these facts, bastardise Edward’s children. The first objection is a question of fact and turns on the supposed absence of written proof of Stillington’s allegation. It this perceived gap in the paper trail, which sceptics use to challenge the existence of the pre-contract. However, to suggest that there is no written evidence of Edward’s prior marriage is plainly nonsense in the face of the documents we do have: the Parliamentary Roll’s, which confirms the prior marriage, Commynes’ memoirs naming Stillington as the ‘whistle blower’, officiate and only witness apart from the bride and groom, and the Crowland Chronicle. What we do lack, however, is Stillington’s written testimony; we also lack the type of circumstantial detail that adds colour to the bishop’s revelation: the who, what, when, where, how and why questions.[35] Common sense suggests that the mere fact that it was a secret ceremony precludes the possibility of any written contract or promise and it is difficult to know what else would satisfy the sceptics if they doubt even parliament’s integrity in accepting the petition verbatim. Anyhow, it does not necessarily follow from the absence of written proof that Stillington was lying, or that he and Gloucester conspired to tell lies. Moreover, the absence of such written testimony or other proofs is hardly surprising due to the fact that in 1485, King Henry VII was intent in suppressing all knowledge of King Richard’s royal title.

 

He ordered Titulus Regius, to be repealed without being read (itself unusual in the annals of parliament). The repeal of Titulus Regius was necessary to bolster King Henry’s own weak title, which depended on the legitimacy of his wife Elizabeth of York, daughter of Edward IV. However, his order that all copies should be annulled and utterly destroyed’ on pain of punishment suggests there was more to it than that. Titulus Regius was, he said, ‘to be cancelled, burned and put into oblivion’. Henry’s intention was by his own admission to ensure ‘…that all things said and remembered in the said bill may be forever put out of remembrance and forgot.’ His explanation that he could not bear to have this infamy of his wife and her family remembered is doubtless true but it is not the whole truth. It was a blatant attempt to rewrite the history of King Richard’s royal title. I take Horspool’s point that it doesn’t necessarily follow that Henry thought the pre-contract story was true. However, when coupled with the arrest and subsequent pardoning of Stillington and Henry’s refusal to allow the bishop to be examined by his judges on the facts of the pre-contract, then the inference that he may have had something to hide is almost irresistible. At a time when King Henry would have welcomed proof positive that the pre-contract was a slanderous lie, he chose to suppress it rather than disprove it.

 

Neither are there any grounds for doubting Stillington’s credibility as a truthful witness to the marriage. Nobody has produced evidence that he invented the pre-contract story either on his own or as part of a conspiracy with Gloucester (as he then was), or that he allowed Gloucester to put him up to it. He did not receive any discernable reward for his revelation there is little force in the assertion that the pre-contract story was known to be false at the time. The only doubts that were expressed came from sources in southern England after his death, at a time when Henry VII was actively suppressing the true history of Titulus Regius.

 

The pre-contract story was also credible to King Edward IV’s subjects. His promiscuity was notorious. Crowland describes him in general terms as ‘a gross man so addicted to conviviality, vanity, drunkenness, extravagance and passion.’[36] Mancini is more descriptive:

 

‘He was licentious in the extreme: moreover it was said that had been most insolent to    numerous women after he had seduced them, for, as soon as he grew weary of the         dalliance, he gave up the ladies much against their will to the other courtiers [Hastings,   Rivers and Dorset?]. He pursued with no discrimination the married and unmarried the    noble and the lowly: however he took none by force. He overcame all by money and         promises, and having conquered them, he dismissed them.’[37]

 

Finally, it is important to bear in mind that the draftsman of Titulus Regius had no need to allege bigamy. As I have already argued, the charge of witchcraft and the claim on notoriety were sufficient to invalidate Edward’s marriage to Elizabeth without the need of a court judgement. If the pre-contract story was not true it’s inclusion in Titulus Regius was a dangerous embellishment, a mistake of the first magnitude, which I do not see such a careful draftsman making.

The second objection raises two questions of law, which I shall deal with individually.[38]

  • The first point relies on the current principle of English law that that bigamy ceases once one of the spouse’s dies. Richard’s detractors argue that no objection could be raised against the validity of Edward’s marriage to Elizabeth Grey or against the legitimacy of their children born after Eleanor Butler’s death on the 30 June 1468. However, in the fifteenth century the law was different; in those days 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 the facts of this case, the law in 1483 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. Medieval canonists considered this harsh, even unjust. Consequently, to mitigate its effect on an innocent party in a bigamous marriage, exceptions to the rule were allowed. 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 the legal presumption that Elizabeth acted in good faith. Owing to the fact that her marriage to Edward was clandestine, the law presumed bad faith on her part. Thus, she could not avail herself of its protection.[39]

 

  • The second point of law turns on the argument that as Edward and Elizabeth ‘had lived together openly and were accepted by the Church and the nation as man and wife’, King Richard’s claim was too late. Edward and Elizabeth lived openly together for nineteen years. Furthermore, fifteenth century matrimonial law recognised the validity of what we would call a ‘common law marriage’. It was also possible in certain circumstances to presume the legitimacy of any resulting children. However, the problem for Edward’s children continues to be the secrecy of their parents’ wedding. The presumption of validity only extended to marriages conducted in facie ecclesia. Furthermore, canon law specifically allowed questions of bastardy to be raised after the parents’ deaths, in order to settle issues of inheritance. Finally, it was and is a precept of English law that an illegal or improper act cannot be by its continuation over a long time. Far from making things better, Edward’s nineteen-year cohabitation with Elizabeth made them worse.

 

The Constitutional question

The constitutional question is simply whether Parliament had authority to determine the validity of Edward IV’s marriage to Elizabeth and the legitimacy of their children. The gist of the argument against parliament is that as a ‘secular court’ it had no such authority, which lay exclusively with the church courts. It is a superficially strong objection against Titulus Regius and no less so for being the first, and the only remotely contemporary one. The Second Continuation of the Crowland Chronicle contains this passage.

 

 ‘At this sitting [1484] parliament confirmed the title by which the king in the previous        summer ascended the throne and although that lay court found itself (at first) unable to give    a definition of his rights, when the question of the marriage was discussed, still, in          consequence of the fears entertained of the most persevering (of his adversaries), it             presumed to do so, and did so.”[40]

 

I have used Henry Riley’s nineteenth century translation because in my personal opinion, modern translations that simplify the text in the interests of clarity or ‘good English’ lose too much detail in the process. They are also symptomatic of a general dumbing down of discussion about Titulus Regius by historians. I believe Riley’s text is more accurate and better captures the events and the atmosphere in parliament: the difficulty in defining the king’s rights, the fact that it was only enacted after a debate and the great fear that afflicted even the most resolute. I feel sure that these emotions were present and expressed. We get an idea of the issues that troubled parliamentarians from John Russell’s draft sermon, which he prepared for the opening of parliament. Russell clearly opposed the enactment of Titulus Regius in the form of the petition. He went so far as to describe it as ‘a document conceived in malice and ending in corruption’. It is impossible to believe that after hearing the Lord Chancellor’s explosive sermon criticising the petition and the petitioners, the matter was not debated with keen interest on all sides. It is true that the debate is not recorded in the Parliamentary Roll but we know from an MP’s extant diary of the 1485 parliament that such debates took place, especially on important issues such as the royal title.[41]

 

Russell was not of course advocating that parliament should refuse to validate Richard’s succession: far from it. His objection was to process and not outcome. He argued that to ratify Richard’s title by inheritance was fraudulent because it was based on ‘false’ information and because it involved a determination on the validity of Edward’s marriage, which he believed parliament should not do. Russell feared above all things division and sedition. He had in mind the October rebellion, which was indicative of the continuing divisions in the English polity. He believed that Titulus Regius in this form was more likely to result in a disputed succession and civil war. He saw the need for an exclusively political solution, which he believed would avoid stepping on the Church’s toes and being more honest and open was something the realm could come to accept. Although he doesn’t say exactly what he had in mind it was probably a simple declaration by parliament that the crown was vested in King Richard and his heirs forever.[42] Russell’s sermon also contained the following statement on the nature and authority of parliament

 

 ‘In this great body of England we have many diverse members under one head. How be it            they may all be reduced to (iij) chief and principal, which make this high and great court at    this time, that is to say the lords spiritual, the lords temporal and the commons.’ [43]

 

That is a reference to parliaments political role; significantly, Russell does not imply that parliament is in this instance acting in its judicial capacity. Even so, there was a problem with the notion that parliament could simply declare Richard as king; it, would have been unacceptable to Richard. He was weaned on the Yorkist doctrine of ‘strict legitimacy’ (succession by inheritance). No medieval English king could willingly accept a ‘constitutional’ title granted by parliament since a) it undermined the divinity of kingship and b) what parliament gave it could take back.

 

Richard harshest biographers suggest that it was fear of his reprisal that encouraged parliament to pass the Act of Settlement;[44] but I disagree for three reasons. First, the sources for these statements are questionable since they are based on hearsay and they only emanate from Richard’s political opponents. Second, no reprisals were taken against Russell despite his public opposition to the petition, he was not discriminated against or ‘punished’ in any way and continued to serve King Richard throughout his reign. The whole theme of Russell’s sermon was unity, which brings peace and stability. I do not think it was the fear of Richard or his henchmen that afflicted the MPs, but fear that a disputed succession would result in a resumption of the Wars of the Roses.[45] Third, the Parliamentary Roll for the 1484 sets out Titulus Regius in full, adding 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 realisation that the decision the decision to challenge the validity of Edward IV’s marriage was contentious.[46] 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.”

 

The depositions of Edward II and Richard II are testament to the need for parliamentary assent to the dethroning of a crowned and anointed monarch. The Duke of York’s disputed claim to the throne in 1460 is further evidence that a disputed royal succession was a matter of state, which could only be resolved by the king and parliament.[47] The precedents therefore support the necessity for parliamentary assent to a royal succession where the title is controversial.   Naturally, those involved in the fourteenth century depositions had to conform to the legal niceties; nevertheless, the decision in each case was political as was the outcome. The situation in 1483 was completely different; it was, to use legal jargon, sui generis (unique). Both Edward II and Richard II were demonstrably unfit to rule. Whereas, Edward V was a minor; he had not been crowned and was too young to be guilty of misrule. The attack on the validity of his parent’s marriage was therefore a device to give sufficient cause for Edward’s deposition and the barring of his siblings from the line of succession. The overriding raison d’état was the fear that Edward V’s minority would result in Woodville hegemony and a resumption of civil war. On that basis alone, the proposition that only the church courts had jurisdiction, is a doubtful one. To explain that argument I must delve briefly into the evolution of parliament into the king’s court of justice and a national assembly made up of the ‘three estates of the realm’.

 

In the beginning, the feudal parliament was the king’s court; it was the highest court he had. From the thirteenth century, it began to develop a dual role as a court of law and a political body involved in affairs of state. It became not just the king’s highest court but also his most solemn council. By the fifteenth century, the concept of parliament as a nationally representative body was prominent. Henry V famously told the Pope that he couldn’t change English law without the assent of Parliament. In 1420, the Treaty of Troyes had to be ratified by the English Parliament. By 1467 the Lord Chancellor, Robert Stillington was able to declare that justice depended on the ‘three estates’ of the realm that sat in parliament. It is in that context that Dr AR Myers considers that Parliament’s declaration of Richard III’s legitimacy and Edward V’s bastardy, and their recognition of Richard’s hereditary right, ‘justly grounded on the laws of God, nature and the realm’, was the most important step in the evolution of parliament at that time. ‘This is’, he writes, ‘a specially striking example of the way that the older notion of parliament had had grafted onto it the idea of a national assembly acting on behalf of the three estates, combining with the king to provide an authority of parliament, which would otherwise have been lacking.’ [48] The importance of this declaration cannot be overestimated since it sets out clearly parliament’s own definition of its authority and why it acted as it did on the question of the royal title. After acknowledging that the people at large may not have understood the royal title expressed in the petition, the declaration continues.

 

 ‘And moreover, the court of parliament is of such authority, and experience teaches that the  people of this land are of such nature and disposition that the manifestation and declaration  of any truth or right made by the three estates of this realm assembled in parliament, and   by authority of the same, before all other things commands the most faith and certainty,  and in quieting men’s minds, removes the occasion of all doubt and seditious language.  Therefore at the request and by the assent of the three estates of the realm, that is to say  the lords spiritual and temporal and the commons of this land assembled in this present   parliament by authority of the same, be it pronounced, decreed and announced that our   said sovereign lord the king was and is the true and undoubted king of this realm of  England … by right of consanguinity and inheritance, as well as by lawful election,     consecration and coronation.’[49]

 

So there we have it: parliament did not regard itself as a judicial body giving judgement in a court case. Indeed, it could not do so in the name of the three estates since the commons lacked judicial authority. Only the lords in parliament had the power to try court cases bought before them. The bill was passed as an Act of Settlement to which the king and the three estates assented.[50]

 

It is right to say, as Chrimes does, that whatever the prevailing relationship was between state and church, ‘ecclesiastical courts were neither expected nor required to enforce statutes in cases within their jurisdiction’.[51] Furthermore, fifteenth century civil judges were usually careful not to encroach on the English Church’s rights or authority where spiritual matters were concerned. Even so, the exclusivity of canon law in the ecclesiastical courts did not stop Parliament from passing statutes prescribing their jurisdiction and, on occasion, supplanting canon law.[52] Legislation was also enacted to prevent canon law overriding substantive ecclesiastical law; even matters that fell well within the Church’s purview did not escape statutory definition. For example, issues related to temporalities, sanctuary, benefit of clergy, legitimacy by subsequent marriage and heresy were not left entirely to Church judgement.[53] This was especially so, on cases (like this) that touched the boundary between church and state. 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.

 

Even if we accept for the purposes of argument that a church court ought first to have determined the question of legitimacy, it was simply impracticable. First there is the problem of the ‘law’s delay. Following the sovereign’s death, time is of the essence. His successor has to assume the reins of government speedily to ensure the continuous peace, prosperity and defence of the realm. Litigation in those circumstances would have been unduly time-consuming. And it would also have raised the possibility of an appeal to the Pope, which were to happen would have had political repercussions rendering any legal judgement nugatory. It is unlikely that the English Parliament would accept the notion that a foreign power could determine the next king of England in a courtroom. Third, there is the factional dimension; a purely legal judgement was unlikely to resolve the factional dispute underlying this whole episode, or reduce the risk of civil war. The royal succession could not be decided by a lawyer or a foreigner or in any way that ignored the realpolitik in which the whole question of Edward V’s legitimacy arose. A legal solution was impossible to achieve in 1483.

 

The claim of Edward of Warwick

Finally, I must address the claim that even if Edward IV’s children were illegitimate, Edward of Warwick was the rightful heir to the throne ahead of Gloucester. Mortimer Levine challenges the view that Edward of Warwick was barred from succeeding because his father was an attainted traitor. 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 and an excuse to bar Warwick from the crown, and a legal pretext for Gloucester’s usurpation. He may be right about Warwick’s exclusion being a pretext but he has, nonetheless, underestimated the importance of the attainder and the difficulties posed for young Warwick. Professor Lander has described the attainders passed on the Yorkists in 1459, which gives us a feel for the nature of attainment “ They were to suffer the most solemn penalty known to the common law. Treason was the most heinous of all offences. Its penalties ruined the traitor’s descendants as well as the traitor himself. The offender was held worthy of death inflicted with extremities of bodily pain…his children, their blood corrupted, could succeed to neither the paternal nor the maternal inheritance. The traitor died in the flesh, his children before the law.” The children of an attainted traitor lost all their civil rights. They had no status.  Some even questioned their right to live after attainder.[54] It’s 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 child of traitor, who was incapable of ruling England anyway. It is quite possible that if a strong faction of nobles had supported him, his attainder might have been reversed. However, that never happened.[55]

 

Conclusion

There is something Dickensianly repellent about a ‘wicked uncle’ who, to benefit himself, deprives his nephews and nieces of their just inheritance through legal trickery and sharp practice; that is the opinion of King Richard III that persists. The reason for this, is found in the historical treatment of the king beginning in the sixteenth century and continuing to the twenty-first century. The early histories were influenced by the Tudor narrative, which described King Richard as irredeemably wicked. Later historians have, with a few exceptions, followed suite. The historiography is marked by a tendency to simplify the issues to overcome gaps in the evidence and to judge King Richard through the prism of modern attitudes and culture. Nowhere is this more apparent than the historical treatment of Titular Regius. It is natural that some people will think there is something unjust and dishonest about depriving children of their rights without them being heard. We don’t need the Tudor histories to realise that King Richard’s contemporaries had doubts and uncertainties about the manner by which he came to the throne, or that his title was ambiguous to some; we know that this was so from contemporary documents. Moreover, we also know that those doubts uncertainties and ambiguities were expressed at the time and they were resolved by the national Parliament. The problem. I have tried to highlight in this article is that the intellectual debate about the events of 1483 has become personalized and is prejudiced. Insufficient attention is paid to the realpolitik of the time. The underlying fear was of a resumption of the Wars of the Roses and was the driving force behind Edward V’s deposition. There was no appetite for a boy-king in such highly charged circumstances, especially one controlled by the Woodvilles

 

Although I have little doubt that Parliament was empowered to enact Richard’s Act of Settlement, I sympathize with Chancellor Russell’s view that to enact the petition verbatim was not the best way to resolve the doubts, uncertainties and ambiguities of doubters. it was possibly even disingenuous, in that it used the law to mask a crude political act. Having said that, I cannot escape the fact that the bill seemed to have been passed through the three estates without a mention of dissent in the Parliamentary Roll. I believe that those who argue that this was through fear of Richard and his henchmen do parliamentarians a disservice by suggesting they were so craven. Ultimately, the importance of Parliament as the national law–making institution under the King’s estate transcended the canon and the common law in resolving state issues of this weight and importance

 

I have written elsewhere of my belief that Richard III was an exceptionally brave man in the fullest sense: on the battlefield and in the council chamber. I also believe he liked to do the right thing. Evidence of these qualities and his potential for good are seen in the significant judicial reforms he made in what was his only parliament. However, I believe he relied overmuch on his courage to overcome all obstacles: consequently, he did not always do the right thing for himself. The thorny question of his royal title is arguably one of those issues wherein he might have done better to temper his strong sense of right and wrong with a more realistic stance. A simple parliamentary declaration that he was king would not have softened the blow for Edward IV’s children or have met the Yorkist ideal and it was not in his nature be less than the man he was; nevertheless, it may have had a better chance of acceptance, thus enabling him to consolidate his reign.[56]

 

[1] A Conan-Doyle – The Adventures of Sherlock Holmes (Penguin 1981) p.1

[2]. Horace Walpole -The Historic Doubts and Refutation of the Traditional Account of Richard III’s life and reign (1768) published in Paul Murray Kendall (editor) – Richard III: the Great Debate   (Folio Society 1965)

[3]. Charles Ross – Richard III (Yale 1999) at p.64. This is still considered to be the standard biography of Richard III

[4]. Ross at p. LXVI

[5]. John Gillingham (editor) – Richard111: a medieval kingship (Collins & Brown 1993) passim

[6] David Horspool – Richard III: a ruler and his reputation (Bloomsbury 2017); Chris Skidmore – Richard III: brother, protector, king (Weidenfield & Nicolson 2017)

[7] . Phillipé De Commynes – Memoirs: the reign of Louis XI 1461-1483 (Penguin 1972) pp.353-354.

[8]. Sir James Gairdner – History of the Life and Reign of Richard III (Longman Green 1878) pp.113-115.

[9]  Sir Clement Markham –Richard III: his life and character (Alex Struick 2013 paperback edition) at p.101.

[10] Alison Hanham – The Cely Letters (EETS Oxford 1975) pp. 159-160. Stallworth’s correspondence is helpfully reproduced in full in Peter A Hancock- Richard III and the murder in the Tower – (The History Press 2011) Appendix 1, pp.158-59

[11] Hanham (Cely Letters) pp.184-85; see also Michael Hicks – Richard III (Tempus 2000 edition) p.45, for a different translation of this letter.

[12] The Book of Wisdom, Chapter 4, Verse 3 ‘Bastard slips shall not take deep root, nor take firm hold.’ Scholars generally agree that the book of Wisdom deprecates any compromise with false idolatry. Richard’s strong sense of right and wrong was probably in tune with such views.

[13] AH Thomas et al [eds] – The Great Chronicle of London (London 1938) pp.231-233

[14] Paul Murray Kendall – Richard the Third (Geo Allen & Unwin, 1955) p.477, note 21

[15] AJ Armstrong (ed) – Dominic Mancini: the Usurpation of King Richard III (Oxford, 1969) at p. 95

[16] The Great Chronicle; ibid

[17] Mancini p. 97

[18] SB Chrimes – English Constitutional Ideas in the Fifteenth Century (Cambridge 1936) pp.123-125

[19] Chris Givern-Wilson [Ed] – The Parliamentary Rolls of Medieval England 1275-1504 (Boydell 2005), Vol XV. Rosemary Horrox [Ed] – Richard III 1484 p.14 [PROME]

[20] PROME pp.14-18

[21] Charles T Wood – The deposition of Edward V (Traditio Vol.30, 1935) p.236

[22] Anne Sutton-Richard III’s ‘Tytylle & Right’; a new discovery (Ricardian, Vol IV, No 57, June 1977) pp. 2-8, together with subsequent correspondence with Charles T Wood in J Petre (ed)-Richard III: crown and people (Richard III Society 1985) pp.51-56.

[23] David Horspool-Richard III: a ruler and his reputation (Bloomsbury 2017 edition) pp.164-165 and 290, note

[24] I am summarising three articles about this matter. Mary O’Regan – The Pre-Contract and its Effect on the Succession in 1483 (Ricardian) Vol IV, No 54 (Sept 1976) pp. 2-7; this is reproduced in Richard III: crown and people pp. 51-56; also, Anne Sutton (Tytylle & Right) ibid; also R H Helmholz – The Sons of Edward IV, a Canonical Assessment of the Claim they were Illegitimate, published in PW Hammond (ed) – Richard III: loyalty, lordship and law (Richard III and Yorkist Historical Trust 1986) pp. 91-103.

[25] HA Kelly – The Case Against Edward IV’s Marriage and Offspring: secrecy, witchcraft: secrecy: pre-contract (Ricardian Vol. XI No.142 September 1999) pp. 329-330.

[26] Ralph Griffiths – The Trial of Eleanor Cobham: an episode in the fall of Duke Humphrey of Gloucester (Bulletin of John Ryland’s Diary 1969) 51(2) pp. 381-399

[27] Griffiths ibid

[28] Griffiths ibid

[29] Michael Hicks – False, Fleeting, Perju’d Clarence (Alan Sutton 1980) chapter IV passim; see also, John Ashdown-Hill – The Third Plantagenet: George Duke of Clarence (History Press 2014) chapters 11 and 12 passim. Both these biographies deal with the issues of the Burdet trial comprehensively and each contains a nuanced interpretation of events. David MacGibbon’s claim that Clarence accused Elizabeth of witchcraft did not form part of the accusation against him at his trial (See David MacGibbon – Elizabeth Woodville (Amberley 2013) pp.104 and 216, notes 18 and 21.

[30] PROME ibid

[31] PROME ibid; see also Helmholz p.98

[32] Annette Carson – Richard III: the maligned king (History Press 2014) pp. 138-140 citing WE Hampton- Witchcraft and the Sons of York (Ricardian March 1980)

[33] David Baldwin -Elizabeth Woodville (History Press 2010) pp.10-11, pp150-154 passim; Susan Higginbottom – The Woodvilles (History Press 2015) pp.31-32

[34] Mortimer Levine – Tudor Dynastic Problems 1460-1571 (George Allen and Unwin 1973), esp pp.28-31; Professor Levine is a historian and not, in the legal sense, an expert witness on 15th century canon law.

[35] See John Ashdown-Hill – The Secret Queen: Eleanor Talbot (History Press 2016) pp.120-139 for an intriguing discussion of the circumstances of Edward’s alleged marriage to Eleanor: how they met, became lovers and were secretly married. See also Peter A Hancock – Richard III and the murder in the Tower – (History Press 2011) pp.33-43 for an alternative theory. Like all conjecture these theories are based on inferences drawn from circumstantial evidence. Though both theories are credible, differences in detail suggests that at least one of them is wrong.

[36]. Nicholas Pronay and John Cox (editors) – The Crowland Chronicle Continuations 1459-1486 (Richard III and Yorkist History Trust 1986) p.153.

[37]. Mancini p.67

[38] Levine ibid

[39] Helmholz ibid

[40] Henry Riley (Trans) – Ingulph’s Chronicle of the Abbey of Croyland with continuations by Peter Blois and anonymous authors (London 1854); see also Pronay and Cox, pp.169-170, which is an honest attempt to provide scholars with a serviceable edition of the second continuation. However, the authors’ simplification and modernization of complex Medieval Latin has changed the sense significantly, as can be seen by the following extract, which is provided for comparison. “…I come to the parliament which began about the 22 January (1484). In that assembly indeed the title by which the king, in the previous summer, had ascended to the height of the crown was corroborated even though that lay court was not empowered to determine on it since there was a dispute concerning the validity of a marriage, nevertheless, it presumed to do so and did so on account of the great fear affecting the most steadfast.” It is also worth considering Alison Hanham’s pithy translation, which is due, in part to her desire to translate Medieval Latin into ‘good English’. ‘Over and beyond confirmation of the title by which the king had ascended to the dignity of the crown the previous summer, that lay court took it upon itself to give a ruling on the validity of a marriage. It could not do so, but it did because of the great fear that afflicted the most staunch.’ (Alison Hanham – Remedying Mischief; Bishop John Russell and the royal title. [Ricardian Vol.12, No.151, December 2000 p.146])

[41] Nicholas Pronay et al – Parliamentary Texts of the Late Middle Ages (Clarendon, Oxford 1980) at p.186 (“A Colchester Account of Proceedings in Parliament 1485, by representatives of the Borough of Colchester Thomas Christmas and John Vertue’)

[42] Russell’s drafts are reproduced by JD Nichols [Ed] – Grants etc. from the Crown during the reign of Edward V (Camden Soc 1854) pp.xxxv-Lxiii; and also by Chrimes pp. 167-191; the draft sermons are also discussed extensively by professor Alison Hanham (Remedying Mischief) passim; see also PROME pp.2-4, 8. []

[43] Chrimes ibid

[44] Horspool pp. 161-165 passim; Horspool prefers innuendo to outright statement but it is clear the he damns Richard’s motives and his methods. Its a pity therefore that he undermines the credibility of his argument by cherry picking his examples and, even then, getting some of the facts wrong. For example, he states that Richard’s use of the pre-contract to bastardize Edward broke with ‘established precedent principally in not giving the children in question or their mother a chance to reply’. It is an erroneous point, since there was no ‘established precedent’ for this situation; it, was unique. What precedent does show, is that no king could be deposed without the assent of ‘three estates of parliament’ and it is in that context, and not a court case that the deposition should be seen. See also Skidmore pp.184-195.

[45] Pronay and John pp.169-171

[46] See PROME Vol XV pp. 5 and 7

[47] Anne Curry and R.E. Horrox – 1460 PROME, Vol XII, Henry VI Parliament, October at pages 510 and 518. Even though the situations in 1460 and 1483 were different, the principle that the royal accession was not justiciable was well established

[48] A R Myers – Parliament 1422 -1509 [published in RG Davies & J H Denton (eds) – The English Parliament in the Middle Ages (Manchester UP 1999 edition) pp.153-154].

[49] PROME Vol XV ibid; see also Myers p.153

[50] For the text of Titulus Regius see Rolls of Parliament (Rotuli Parliamentorum), 6 volumes (London 1776-77) vol. 6, at pp.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 ‘law’ of the land insofar as king Richard’s royal title is concerned. It is also 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/

[51] Chrimes p.285

[52] Chrimes pp.285-288; see also Myers pp. 146,149 and 153

[53] Chrimes ibid

[54] J R Lander – Government and Community 1450-1509 (Edward Arnold 1980) p.203; see also J G Bellamy – The Law of Treason in the Later Middle Ages (Cambridge UP 1970) pp. 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.

[55] See Charles Ross – Edward IV (BCA 1975) p.155, in which professor Ross discusses Clarence’s exemplification as Henry VI’s heir. See also Levine pp. 26-27 for his opinion. It is interesting to ponder Edward of Warwick’s wider significance as a Yorkist heir once Titulus Regius was repealed.   Henry VII’s response was to keep the hapless boy imprisoned in the Tower until he was old enough to be decently executed.

[56] PROME Vol XV p. 97; this was the solution to the conundrum of Henry VII’s lack of a royal title. In stark contrast to elaborate the justification of Richard’s title in Titulus Regius, Henry VII, in his first parliament, simply declared that the crown and all its possessions was vested in Henry and the heirs of his body forever and had been so since the 21 August 1485: justification was deemed unnecessary.

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More’s cryptic reference explained?

In his unpublished semi-satirical volume, More has the Lord Protector and Defender of the Realm, Richard Duke of Gloucester who was also Lord High Constable of England for life, call for some strawberries before the Constable’s Court could pronounce sentence on William Lord Hastings.
Many historians have struggled to understand the significance of the strawberries yet it is a detail surely too trivial to totally invent. Perhaps the fact that a Duke, Marquis or Earl would have strawberry leaves on their coronet explains the point in that Gloucester required assistance from a fellow peer? Although Gloucester was one of only two adult Dukes that June, the absent More wrote thirty or forty years later when Sir John Howard and his son had both been Dukes of Norfolk. Similarly, those present might have included Thomas Lord Stanley, later Earl of Derby. There were no Marquises in 1483.

When is a King not a King?

When he is a hereditary head of state under a different title, of course. There are such people around the world today but Britain had them for a few years.

The first was Oliver Cromwell, the great-great-great-nephew of Thomas Cromwell. As he was finalising the execution of Charles I in 1649, he announced that “the office of King is hereby abolished”. Four years later, he accepted the title of Lord Protector and Defender of the Realm, previously only held for three under age Kings by their closest adult male relatives, of whom Richard of Gloucester was one. When Oliver Cromwell died in 1658, he was succeeded by his son Richard, whom he had evidently nominated in advance.

This article reminds us that the three kings named Richard all died of violence or intentional neglect at an early age. Richard Cromwell, although he was only a de facto monarch for about nine months before resigning (abdicating?) but lived on until 1712 when he was eighty-five, spending all but twenty years of his retirement in his own former realm, but his royal connections may not end there. His mother was Elizabeth Bourchier and is likely to be connected to the original noble family by that name, into which Richard’s aunt had married .

Give this Knight Errant a miss….!

knight errant - wilkins

If you support Richard III and believe history has “done him wrong”, for heaven’s sake do not read The Last Knight Errant: Sir Edward Woodville and the Age of Chivalry by Christopher Wilkins.

I made the mistake, and it soon struck me that the author had learned by rote every single myth about Richard, and then served them up as fact. Although, to be fair, he does dispense with the “two years in the womb, long hair and full set of teeth at birth” yarn. We don’t have the withered arm either. I suppose even Wilkins sensed these things would be going too far. After all, he’s aiming at a modern audience, not the Tudors. I will assume that the murder of Edward of Lancaster at Tewkesbury was a crime of Richard’s that Wilkins somehow overlooked.

So, let me see. Here are some of Richard’s crimes:-

  • He murdered Henry VI.
  • He poisoned Anne in order to marry his niece.
  • Joanna of Portugal declined to marry Richard and preferred her nunnery.
  • Richard intended from the outset to be rid of his nephews.
  • His marriage was “between brother and sister-in-law” and therefore invalid. There was no dispensation applied for anyway. Thus Edward of Middleham was illegitimate.
  • Elizabeth Woodville wasn’t plotting against Richard, she was merely afraid of him.
  • Elizabeth Woodville had a nervous breakdown, which explains her agreement to let her daughters go into Richard’s care.
  • Richard bullied the old Duchess of Oxford into giving him her estates.
  • There is no evidence that Edward IV ever wanted Richard to be Protector.
  • Stillington only revealed the untrue yarn of the pre-contract because Richard promised him his bastard son could marry Elizabeth of York.
  • History has “demonstrated” Richard’s ruthlessness.

That’s enough! Too much even. A load of old tosh, I fear, and so untrue in these important areas that I doubt the author’s portrayal of that thieving traitor Sir Edward Woodville is much better, except that it will be the other swing of the pendulum, halo and all. Can’t be bothered to finish the book to find out.

By the way, the back cover blurb even refers to Richard as ‘that genius of propaganda’! Richard? Has Wilkins never noticed the suffocating blanket coverage by the Tudors? Bah! I don’t mind honest debate, and accept that not everyone believes Richard was a good man, but I do object to this tommyrot. Trotting out the Tudor fairy tales of Thomas More, Shakespeare and the like is not good scholarship!

ENGLAND’S MINORITY KINGS 1216-1483

Introduction

This essay was prompted by a sentence in John Ashdown-Hill’s latest book ‘The Private Life of Edward IV’: “ According to English custom, as the senior living adult prince of the blood royal, the duke of Gloucester should have acted as Regent — or Lord Protector as the role was then known in England — for the young Edward V, eldest son of Edward IV and Elizabeth Woodville, who had been proclaimed king in London.” Not only is this casual generalization about the status of Gloucester’s protectorship at odds with Dr Ashdown-Hill’s otherwise careful attention to detail, it is misleading. It exposes a misconception about the constitutional position in May 1483, which is unfortunately shared by many historians and helps to perpetuate a pejorative myth about the vires of Gloucester’s actions during the late spring and summer of 1483.

 

It is a misunderstanding that is all the more trying since it is so needless. As long ago as 1953, Professor JS Roskell explained the origin of the office of Lord Protector[i]. More recently, Annette Carson (one of Dr Ashdown-Hill’s colleague on the Looking For Richard Project and co-author of their written account of the project) incorporated some of Roskell’s thinking along with contemporary fifteenth century evidence in her detailed study of Gloucester’s constitutional role as ‘Lord Protector’, which explains the position perfectly well.[ii] What these authors establish is that the office of Lord Protector, to which the king’s council appointed Gloucester on the 10 May 1483, was a limited one. The ‘Protector and Defender of the Realm and the Church in England and Chief Councilor to the King’ (to give its full title) was an office created by parliament in 1422 as part of the constitutional settlement that followed the death of Henry V. As the title implies, it is not synonymous with the position of Regent, which was a title and position that reflected authoritarian French practices, which Ralph Griffiths tells us were ‘repugnant to the English mind‘.[iii] However, as we shall see later, change was afoot due to the unique political circumstances of 1483.

 

In the four centuries that separated the Normans from the Tudors, only four English kings succeeded to the throne as children: Henry III, Richard II, Henry VI and, of course, Edward V. I will not dwell on Edward V’s minority for the reason I have already given; however, it is useful to consider the other three minorities since they provide the contextual background for what happened in 1483.

 

Henry III (1216-1272)

Henry III ascended the throne on the 18 October 1216 by right of ‘perpetual hereditary succession’; he was just of nine years old and his future looked decidedly bleak. Three-quarters of the English barons had rebelled against his father, king John, and ‘elected’ Prince Louis of France to replace him. In 1216, Louis came to England with an army of Frenchmen and English rebels to take the crown. By October, he controlled half the kingdom including London and the southern ports with the exception of Dover. In addition, John’s tyranny had damaged royal authority and the infrastructure of government to such an extent that anarchy was endemic. Henry did not have an organised executive or an exchequer with which he could re-establish governance and royal authority; he did not even possess a royal seal. But worse than that he lacked the forces with which to fight the pretender Louis. His situation was desperate but not yet hopeless.

 

In May 1213 king John had signed a charter yielding his kingdoms of England and Ireland to the Roman Church as a vassal.[iv] Although as far as John was concerned this was only a means of gaining papal support for a war against his own subjects, it had beneficial repercussions for Henry and for England since it placed them under papal protection, and unified the English church and crown in what was to become a holy war against Louis and the rebel barons. It also had the immediate practical effect of ensuring that no English bishop was prepared to crown Louis, which was .a considerable handicap for him since he was unable to transform his status as a royal claimant into the divine status of a crowned and anointed king.[v] Henry’s own coronation on the 28 October in the Abbey Church, Gloucester gave him a distinct advantage in establishing his superior claim to the throne. It was, however, a condition of the service that he paid homage to Pope Honorius II for his throne; it was a small price to pay to acquire the divinity that protected him from death or deposition by his human enemies, unless it was God’s will. He still had to avoid being conquered by Louis, since that might be regarded as a sign of God’s will. Following the coronation, loyalists minds turned to the formation of a minority council, the nature and form of which was dictated by the circumstances and not custom.

 

Although it was necessary to organise resistance against Louis’ invasion, the most pressing need was to restore the English barons’ faith in royal authority. Only thus would they be willing to pledge their loyalty to Henry instead of Louis. The Henricians knew the dead king’s wishes as they had his will, in which he entrusted his posterity to the Pope and appointed a council of thirteen men, ‘those whom he most relied upon’, “to render assistance to his sons for the recovery of their inheritance”.[vi] In particular, he commended the guardianship of Henry to William Marshall, earl of Pembroke; for he feared that his heir would ‘never hold the land save through him’.[vii] Although William Marshal was the most famous of Henry’s chosen councilors, he was not the first. Lord Guala Bicchieri Legate of the Apostolic See bore the prime responsibility for consolidating Henry’s succession and restoring royal authority. As Henry’s feudal overlord and head of the Roman Church, Pope Honorius III ‘recognized no bounds on the authority he could exercise in England’.[viii] He sanctioned Guala’s to do whatever was expedient to help young Henry and his kingdom ‘without appeal’. Loyalist councilors were urged to submit to the Legate ‘humbly and devotedly’. Consequently, this minority council is unique in our history.

 

Despite Guala’s authority, it was obvious that he was unsuited to fight the king’s war or to conduct the day-to-day affairs of state. So, those present at the coronation prevailed ‘by their ‘common counsel’ upon William Marshall to assume the mantle of Henry’s guardian as envisaged by the late king. William Marshall had remained faithful to king John from personal loyalty and not from conviction. It was well known that he quarreled with John about policy and he was not tainted with his tyranny. [ix] Marshall’s participation in the minority council was necessary because he was the man most able to unite the English barons against the French invader and despite his old age he was still a redoubtable warrior. He planned and led the successful war against Louis and carried out the day-to day administration of state business. He was particularly adept at using royal patronage to ‘buy’ the rebel barons’ support for Henry. Marshall’s appointment was not a nominal appointment, but neither was Guala a titular leader of the council. He was heavily involved in the council’s major decisions and issued orders to Marshal on purely secular matters, requiring him ‘to do as he was bound to do for the honour of king and kingdom.’[x] The third member of a triumvirate at the head of the council was Peter de Roche, bishop of Winchester. He was appointed as Henry’s tutor. It was a sensible arrangement since neither Guala nor Marshall would be able to take personal care of the king. Later, an argument developed about whether de Roche derived his authority from the council or from Marshall.

 

Henry III’s minority lasted for eleven years. Even after Guala’s resignation in 1218 (He was replaced by Pandulf as Legate.) and Marshall’s death in 1219 (He was succeeded by Hubert de Burgh.) it proved to be the most remarkable minority rule in English history. During it, the Plantagenets rather than the Capetian kings of France were confirmed as the ruling dynasty; England was recued from anarchy and Magna Carta was enshrined into English law.[xi] It also had significant constitutional ramifications. The ‘Great Council’ that met regularly to advise the king during his minority and later during his personal rule was the first conception a national Parliament, which became an institution that existed regardless of whether the king was young or old, weak or strong. [xii] I mention these events because they inform our understanding of the respective roles of William Marshall and Legate Guala, and their successors in the minority government.

 

Professor David Carpenter’s describes William Marshall as “the (sole) Regent” because he granted royal patronage, restored royal authority and dispensed justice.[xiii] It is a reasonable description of Marshall’s position; especially, as Henry’s own appellation for Marshall was ‘our ruler and the ruler of our kingdom‘, which is compatible with the notion of a regent. However, as we shall see, the relationship between Marshall and Guala was not straightforward. Its complexity is best illustrated in the revised version of Magna Carta that was issued in November 1216; wherein, the king declares: “But because we have not as yet any seal, we have caused the present Charter to be sealed with the seals of our venerable father the Lord Gualo (sic), Cardinal Priest by the title of Saint Martin, Legate of the Apostolic See; and of William Marshal Earl of Pembroke, the guardians (my emphasis) of us and of our kingdom, at Bristol the twelfth day of November, in the first year of our reign.” [xiv] The description of Guala and Marshall as ‘our guardians’ necessarily casts doubt on the suggestion that Marshall governed alone as regent. More significant though, is the fact that both of the guardians’ seals were used to authenticate the charter. All of which is inconsistent with the notion of Marshall as regent; a position, which by definition involves the personal rule by an individual exercising royal authority (my emphasis) where the monarch is a minor, absent or incapacitated.[xv]

 

Even more serious, is the possibility that Marshall did not actually exercise the authority of a regent. For example, it was Guala who proposed and sanctioned the re-issuing of Magna Carta as a peace offering to the English rebels.[xvi] Naturally, he acted in unison with the council, including Marshall, but it seems unlikely that the charter could have been issued without Guala’s agreement. It is a hypothesis that does not rely on the fact that the Pope had previously opposed Magna Carta, but on the premise that as the late king’s feudal overlord, he held wardship of his heir until he came of age. Thus, Guala was acting with papal authority as the leader of the minority council. Conversely, William Marshall’s authority was political and limited since it relied on his election by the great council. He acted only with and by the consent of the English polity.[xvii] Marshall was the public face of the council because he was best suited to that role; however, the implication that he was unable to initiate high-policy without deference to Guala is inescapable. The fact that Guala and Marshall worked harmoniously together in the common interest does not render this anomaly irrelevant since a regent is defined by his authority and not by his workload.

 

Richard II (1377-99)

When Richard II inherited his grandfather’s throne in 1377 his subjects hoped he would reverse England’s failing fortunes. The chancellor, bishop Houghton caught the public mood in his opening address to Richard’s first parliament. “Richard, he said, had been sent by God in the same way that God had sent his only son into the world for the redemption of his people.”[xviii] The expectation that he was England’s new messiah was a burden Richard found hard to bear.

 

Insofar as Henry III’s minority may have been a model, it was disregarded in 1377. Then as in 1216 the nature and form of Richard’s minority was determined by circumstances. Edward III’s senility and the illness of the Black Prince had left a power vacuum at court that was filled by Alice Ferrers the king’s unscrupulous mistress and her shifty associates. The Good Parliament (1376) had restored some order and probity by taking conciliar control of the government. However, John duke of Lancaster (John of Gaunt) in his capacity as Steward of the Realm restored the primacy of the royal authority by overturning the parliament’s conciliar approach, much to the chagrin of the three estates. Unfortunately, there was nobody of the stature of William Marshall to unite the Lancastrian faction with their opponents, or anyone of the sagacity of Guala to lead them with moderation and wisdom. The king’s paternal uncles who might ordinarily be expected to fulfill that function were considered to be either untrustworthy or incapable, or both. John of Gaunt was the senior royal adult and the most powerful man in England: he was also the most unpopular. Ambitious to a fault, ‘time honoured Lancaster’ had his own regal ambitions, if not in England and France then in the Iberian Peninsular. However, as a failed soldier and diplomat in the French wars, and a disastrous Steward of the Realm, Gaunt was simply unacceptable to the three estates. Richard’s other royal uncles, Edmund Earl of Cambridge and Thomas Earl of Buckingham were considered dilettantes in affairs of state, lacking the prestige or gravitas to lead a minority government. If the idea of a regent was ever mooted in council, it was quickly dropped

 

If the councilors who met shortly after Richard’s coronation had a plan, it seems to have been to prevent Lancaster or any other powerful individual from seizing the reigns of government. Their presumption that the pre-pubescent Richard was fully competent to rule personally was probably based on the notion that the royal estate was inseparable from the king’s person. It might have been naïve to presume so, but it was not mindless. The legal doctrine of capacities was known to parliament but its scope was limited. For example, a legal distinction could be made between the spiritual and temporal capacities of a prelate, or between the private and public capacities of the king’s Chancellor; however, the office of king and the person of the king were considered to be indivisible. Doubts about this were expressed during the troubled reign of Edward II but they were condemned by the barons and were not raised again during the fourteenth century. According to the English constitutional view, the royal estate (i.e. sovereignty) could not be alienated or delegated save in certain specific circumstances, which were not relevant in 1377. Therefore, even if the king was a minor or infirm his royal authority was held to be unimpaired. In practical terms this meant that anyone wanting to control policy had to control the king. That is why there was an increasing preponderance of the late Black Prince’s household servants on the continual councils at the expense of Lancastrians.[xix] It was by those means that the continual council excluded Gaunt from active government. Nonetheless, the presumption of the king’s competence was a subterfuge. He was little more than the public face of monarchy, the visual representation of order and justice. The continual council, though ostensibly the king’s advisors, was in reality the controlling force of government.

 

The composition of the council varied considerably over the three years of its existence. It was meant to be representative of the different strata of the landed classes: two prelates, two earls, two barons, two bannerettes and four knights. As I have already said, the actual membership reflected political affiliations that exposed the diminution of Lancastrian power. Neither Gaunt nor his brothers sat on the council; even if we allow for the possibility that parliament allocated them some general oversight of the government, the absence of the king’s uncles from the council suggests a remarkable change in the balance of power. Between 1377 and 1380, there were three different continual councils, the last two being slimmer and included an even greater preponderance of the Black Prince’s men.[xx] They achieved some success in restoring stability to the government and prudence to public finances, and they did not succumb to the corruption of previous administrations. Nonetheless, their domestic and foreign policies were generally regarded as failures at the time and since: “ A conciliar regime by its very nature was unlikely to excel in either clarity of vision and efficiency of policy making. It’s strength lay in the opportunity it afforded to achieve harmony through consensus.”[xxi] The tragedy of the time was that harmony was probably never achievable among such a dysfunctional polity. In the parliament of 1380, the Speaker, John Gisburgh accused the continual council of financial mismanagement and demanded their dismissal, adding: “…the king was now of great discretion and handsome stature, and bearing in mind his age, which is very near that of his noble grandfather, whom God absolve, at the time of his coronation (not so!); and at the beginning of his reign had no other councilors than the customary five principal officers of his kingdom.” What Gisburgh was advocating was an end to Richard’s minority and a return to normal government.[xxii] It marked the end of this type on conciliar minority but not the end of the need for continual councils to control Richard’s later excesses.

 

Henry VI (1422-1461 and 1470)

King Henry VI succeeded to the English throne following the death of his father on the 31 August 1422; he was barely nine months old. On his deathbed Henry V disposed of his two kingdoms in a codicil to his will. France he entrusted to the regency of his brother John Duke of Bedford. To his youngest brother Humphrey Duke of Gloucester he committed England, signifying that the duke should have ‘the principal safekeeping and defence’ of his beloved son’ (tutela et defensionem nostril carissimi filii principales).[xxiii] These words are important; especially ‘tutela’, since it implied that duke Humphrey was to have the powers of a regent. When parliament met in November to settle the constitutional arrangements for Henry VI’s minority, they had two alternatives. They could grant the late king’s wishes and allow Humphrey to govern the realm as he claimed or they could heed the lessons of the past to devise a tailored settlement. The settlements of 1216 and were of little or no practical value as a precedent, since their circumstances were irrelevant to the situation in the first quarter of the fifteenth century. Initially, the force of Henry’s will and codicil attracted the support of some lords towards Gloucester’s claim (according to the duke anyway). That changed, however, when they realized the implication of his construction of the codicil. The principal objector was Bedford whose position as the senior royal duke and heir presumptive would be prejudiced if Gloucester obtained the regency of England. The other English lords were also anxious; they were not unnaturally keen to preserve English sovereignty in the dual Anglo-French monarchy that subsisted.[xxiv] Therefore, they could not ignore Bedford’s interests by giving away powers that might belong to him, particularly as he was necessarily detained in France.[xxv]

 

The constitutional debate that began on the 5 December 1422 was parliament’s most important business. The lords were determining the governance and defence of the realm and the importance of the occasion cannot have been lost on them. Not only was Henry VI a babe in arms and therefore, unlikely to be crowned for many years but also there were two thrones to consider.[xxvi] At least one historian considers the untimely death of Henry V to have been the ‘most consequential event in the history of Lancastrian monarchy between 1399 and 1461’. Doubtless it was also a significant factor in ‘moulding’ English constitutional ideas for many years to come.[xxvii] It is all the more disappointing, therefore, that neither the debate nor the arguments are recorded in the Parliamentary Roll. It contains only the details of the outcome. Eventually the lords, with the assent of the commons, devised a compromise.[xxviii] John duke of Bedford was appointed ‘Protector and Defender of the Realm and of the English Church, and Chief Councilor of the king’. In Bedford’s absence, that title and its accompanying powers would fall to the duke of Gloucester. It was a pragmatic solution that recognized existing constitutional doctrine and also probably reflected parliament’s fear that either or both the royal uncles might try to impose a regency government on England. The creation of a protectorate scotched that idea. Bedford accepted the decision gracefully; Humphrey, through gritted teeth. He was clearly unhappy at not being given the authority he wanted.

 

Though we do not have an official record of the debate, we do have an unenrolled ex post facto note of Gloucester’s claim, which has been incorporated as an Appendix to the modern translation of the Parliamentary Roll. It is almost certainly a self-serving document as suggested by Anne Curry. Nevertheless, it gives us the gist of Gloucester’s protest and an inkling of his ambition. He claimed the principal tutelage and protection of the king by right of his brother’s codicil, “which codicil was read, declared and assented to by all the lords” who ‘beseeched’ him to take the principal tutelage and protection of the king and promised to help his cause. He alluded to a commons petition that he should to possess the governance of the realm; which petition, he argued, was not satisfied by the proposal that he should be merely ‘defender of the realm and chief councilor’. He also claimed tutelage of the kingdom by right of law: “Whereupon, my lord, wishing that neither his brother of Bedford nor himself should be harmed by his negligence or default, has had old records searched, and has found that, in the time of Henry the third, William Marshall, earl of Pembroke, who was not so close to the king as my lord is to our liege lord, was called ruler of the king and kingdom of England [rector regis et regni Angliae]. So in conclusion, he thinks it reasonable that either he should, in accordance with the desire of the commons, be called a governor or else, according to this record, ruler of the kingdom [rector regni] but not of the king [regis][xxix] as he does not wish to claim as much authority as William Marshall did. So he desires to take upon himself this charge by the assent of the council with the addition of the word defender according to the desire and appointment of the lords.[xxx] The note concludes with Gloucester’s assurances that (being ‘ruler’) he would do nothing of substance or flout the common law, save by the advice of council. He also acknowledged that nothing agreed could be to the prejudice of his brother Bedford’s rights.

 

Given Gloucester’s conviction that the governance of the realm belonged to him personally as of right and by virtue of his late brother’s will, it is hardly surprising that the next few years were marked by his resentment and consequently by disharmony within the conciliar regime. On the 3 March 1428 (during the 1427 parliament), while Bedford was away, Gloucester made another attempt to redefine authority in his favour[xxxi]. ‘Having had’, he said, ‘diverse’ opinions from several persons concerning his authority, he desired the lords to deliberate and carefully reconsider his power and authority for the avoidance of doubt’. He declared himself willing to leave the chamber whilst his request was debated. Indeed, so strong was his attitude that he refused to return to the chamber unless the lords reached a decision. The lords, without the commons (Presumably the lords were acting in a judicial capacity.) gave judgement through Henry Chichele archbishop of Canterbury. The archbishop reminded Gloucester that in 1422 the lords had given mature consideration to his claim, during which they discussed the law and precedent And they had adjudged his claim to be illegitimate since it was not based on the law of England; which law, the late king had no power to alter or change in his lifetime or by his will, without the assent of parliament. However, to keep the peace they had determined that ”… you (Gloucester), in the absence of my Lord Bedford, your brother, should be chief of the king’s council, and have therefore devised for you a different name from the other councilors, not the name of ‘tutor’, lieutenant, governor or of regent, nor any name that might imply governance of the realm, but the name of protector and defender, which implies a personal duty of attention to the actual defence of the realm both against enemies overseas, if necessary, and against rebels within.[xxxii] If the lords had wished Gloucester to have more power, said the archbishop, they would have granted it to him. Furthermore they were amazed that he should now ask for more, especially as he and his brother had accepted this compromise when it was made; since when, of course, the king ‘had advanced in years and intelligence’. Finally, Gloucester was required to be satisfied with his current position and to remember that he had no power in parliament in the presence of the king, save as a duke and that his office was held at the king’s pleasure. It was an unequivocal rejection of the notion that Gloucester (or indeed Bedford for that matter) was regent or had the authority of a regent, during the king’s minority. The lords explicitly reserved to themselves the right to govern during the minority or incapacity of the king, whether in council or in parliament. Although the lords’ anger is palpable and Gloucester received a stern rebuke for his cheek such as no royal duke usually experienced, their decision was not made in pique but only after careful consideration. By rejecting the king’s codicil and by their words, parliament was making a distinction between the civil inheritance of an estate by a will and the constitutional disposal of the kingdom by royal prerogative.[xxxiii] It is a clear that they did not consider the crown to be normal heritable property or subject to the civil laws of inheritance.

 

Gloucester’s claim for tutelage also raised a grave constitutional issue since it included the power to exercise the delegated royal authority, implying a separation of the king’s estate between his person and his office. This was contrary to English law since it was generally held that whatever the disability of the king (‘nonage or infirmity’ to use Chrimes’ quaint phrase), his royal authority was unimpaired; furthermore, this authority resided in the king’s person alone and could not be exercised by any other individual. We see this principle enunciated in a council meeting that took place in 1427, whilst Bedford was in England; wherein it was pronounced that (and I am paraphrasing) ‘even though the king is now of tender age, the same authority rests in his person this day as shall rest in the future when he comes of age.’ Moreover, the council concluded that if, due to ‘the possibility of nature’, the king could not indeed rule in person then ‘neither God nor reason would that this land should stand without governance’; in such a case royal authority rested with the lords spiritual and temporal.[xxxiv] Nobody can doubt that in 1422 Henry’s royal estate was incomplete by virtue of his infancy, ‘since it lacks will or reason, which must be supplied by the council or parliament’. The impossibility of alienating or delegating royal authority is further illustrated by the care with which both parliament and the protector avoided any imputation that their settlement established a partition of the source of authority. Gloucester claimed to be rector regni (governor of the kingdom); he did not claim to be rector regis (governor [tutor?] of the king).

 

Conclusion

The historiographies of these three reigns chart the evolution of English minority governments from the ambiguity of William Marshall’s ‘regency’ in 1216 until parliament’s rejection of duke Humphrey’s claim for tutelage in 1428. During that period the guiding   principle was to preserve the integrity of royal authority through consensus rather than autocracy. Although there was undoubtedly an ideological element to this thinking, the real driving force was political pragmatism. It was believed necessary in each reign, though for different reasons, to protect the integrity of royal authority from the possibility of abuse by an unscrupulous or overly ambitious regent. Consequently, each settlement was driven by the realpolitik of the day rather than by precedent or custom. This is also true of Edward V’s minority.

 

Edward IV’s death was unexpected and unexplained; consequently, its dramatic consequences could not be foreseen by Richard duke of Gloucester or the Council. Edward V’s maternal family led by his mother Elizabeth Grey (née Woodville)[xxxv] mounted a coup d’état against the lawful government and the late king’s wishes. Their aims were to crown young Edward before the Privy Council could arrange a protectorship and to rule the kingdom through a compliant king. Their attempt to persuade the council to their cause in the absence of the king’s senior uncle and their disregard for Edward’s deathbed codicil, whilst not illegal, were not benevolent acts. They raised the spectre of civil war and a return to the social unrest and injustice that had blighted the 1440’s and 1450’s, and triggered the Wars of the Roses. Ultimately, the coup was unsuccessful due to Gloucester’s timely intervention and, more significantly, because the Woodvilles lacked support among the lords. In May 1483 the council’s appointed Richard duke of Gloucester as Lord Protector. This was consistent with the 1422 settlement and with Edward IV’s deathbed codicil, and it consolidated Gloucester’s position as leader of the minority government. However, as we shall see, the council did not exclude the possibility that his powers might be enlarged later, as a bulwark against Woodville ambition.

 

The sermon drafted by the Chancellor (bishop John Russell) for Edward V’s first parliament provides an insight into the councils thinking and their intention. They proposed to enlarge the Lord Protectors powers to include tutelage and oversight of the king and the kingdom.[xxxvi] It is neither necessary nor desirable for me to repeat or to summarize Annette Carson’s analysis of the chancellor’s draft sermon, or to comment on her conclusions about the form of post-coronation government envisaged by the council. My only interest is in emphasizing the radicalism of this proposal, which was completely outwith the conciliar principles of past minorities and challenged the traditional English view of kingship. Quite why the council thought it was necessary to abandon the safeguards afforded by the 1422 model is not certain. However, there are sufficient clues in the draft sermon for us to draw the reasonable inference that political pragmatism was their primary motivation. It was considered necessary for Gloucester had to have full ‘tutelage and oversight’ of the king’ because the Woodvilles were manifestly unfit to do so and/or they had abandoned their responsibility for the king’s person. [xxxvii]. Nobody doubted that they would continue their attempt to control the king, which if successful would be to the detriment of the peace and stability of the kingdom. This speaks well of the trust they espoused in Gloucester and the profundity of their mistrust of the king’s maternal relatives . Although I take note of the fact that Edward V’s coronation never took place and his first parliament never met, it is beyond my scope to examine the reasons for that

[i] JS Roskell – The Office and Dignity of Protector of England with special reference to its origins (English Historical Review Volume 68 April 1953) pp. 193-233

[ii] Annette Carson – Richard duke of Gloucester as Lord Protector and High Constable of England (Imprimus/Imprimatur 2015). See also http://www.annettecarson.co.uk/357052362 for a useful and freely available summary of Carson’s analysis.

[iii] Ralph Griffiths – The Reign of King Henry VI (Sutton Publishing 1998 edition) p.19

[iv] W L Warren – King John (Eyre Methuen 1978, 2nd edition) p. 208.

[v] Sir Maurice Powicke – The Thirteenth Century 1216-1307 (Oxford 1988 2nd edition) pp.1-8; the acts of anointing and crowning a king transformed the nature of monarchy. Not only was the office of king divine but now the person of the king was also divine. Humankind could not remove a crowned and anointed king, unless it was the will of God. Any resistance to him was treason and a sin against God’s law.

[vi] Warren p. 255; John’s executors were: the lord Guala, Legate of the Apostolic See, Peter lord bishop of Winchester, Richard lord bishop of Chichester, Silvester lord bishop of Worcester, Brother Amery of Saint Maurie, William Marshall earl of Pembroke, Ranulph earl of Chester, William earl Ferrers, William Brewer, Walter Lacy, John of Monmouth, Savary de Mauléon, and Fawkes de Breauté. John’s last will and testament is the earliest surviving example of a royal will. Considering its importance, it is a remarkably short document, which is more concerned with ensuring John’s acceptance into Heaven than the detailed disposition of his estate

[vii] D A Carpenter – The Minority of Henry III (Methuen 1990), p 52; William Marshall (1146-1219) was not of royal stock; he was the younger son of a minor Anglo-Norman noble and expected to earn his way in the world. As an errant knight, Marshall earned a fearsome reputation as a jouster and an equally impressive reputation of faithful service to five English kings in peace and in war. Stephen Langton, archbishop of Canterbury, eulogized him as ‘the best knight who ever lived’ and he was dubbed by his first (anonymous) biographer as ‘the greatest knight in the world.’ Marshall inherited his earldom through marriage and by 1216 he was a man of considerable wealth and power. Despite his age (he was now seventy), Marshall promised to be a stabilizing influence for the king and his government.

[viii] Carpenter, p. 13

[ix] Carpenter, p. 18

[x]  Carpenter, p. 52, note7

[xi] Carpenter, p.6

[xii] Sir Maurice Powicke – The Thirteenth Century (Oxford 1988 2nd edition) pp. 1-8

[xiii] Carpenter, pp.13-54

[xiv]file:///Volumes/RICHARD%20III/Murrey%20and%20Blue%20essays/11.%20Lord%20Protector/1216%20Magna%20Carta,%20the%20full%20text.webarchive

[xv] The Shorter Oxford English Dictionary 5th edition (2005); ‘Regent: 1) that which rules, governs or has sovereignty; a ruling power or principle, 2) a person invested with royal authority by or on behalf of another; esp a person appointed to administer a kingdom or state during the minority, absence or incapacity of a monarch or hereditary ruler’. See also Chambers Dictionary 13th edition (2014); ‘Regent: a ruler or person invested with interim or vicarious authority on behalf of another.’

[xvi] Carpenter, p.23

[xvii] Carpenter, p. 55

[xviii] Nigel Saul – Richard II (Yale 1997) p.18

[xix] SB Chrimes – English Constitutional Ideas in the Fifteenth Century (Cambridge 1936) pp. 35-37; by the fifteenth century the courts had declared that the royal prerogative ‘ must be intact in the king’s person alone’ (p.35, citing VYB. SEIV, Micho.fo 118-23 [App No 48]).

[xx] Saul pp.31-55, provides an analysis of the membership and a narrative of their downfall.

[xxi] Saul p.45

[xxii] C. Given-Wilson (ed) – The Parliament Rolls of Medieval England, Volume 6 (Geoffrey Martin and Chris Given-Wilson eds) (The Boydell Press 2005) p.149 [PROME].

[xxiii] PROME Vol 10 (Anne Curry ed) p.6; citing P Strong and F Strong ‘ The last will and codicils of Henry V, EHR, 96 (1981) 99 et al.

[xxiv] PROME Vol 10 p.7; Curry suggests that fears were first expressed about the dual monarchy following the Treaty of Troyes (1420). See also Bertram Wolffe – Henry VI (Yale 1981) pp. 28-35, & 44; and Griffiths pp.19-24.

[xxv] Griffiths p.21; Bedford’s friends were in the House and they knew of his ‘position’. Furthermore his letter to the Mayor and Corporation of London setting out his objections was before the lords. The respective appointments of Bedford and Gloucester under Henry’s will were determined largely by circumstances. Ordinarily, Bedford remained in England as Keeper of the Realm in the king’s absence abroad, whilst Gloucester generally accompanied the king. However, in 1422 Bedford went to France with reinforcements for the army and Humphrey returned to England as Keeper of the Realm. The weakness of Gloucester’ position became clear at a council meeting on the 5 November 1422 when the council determined that his tenure as Keeper of the Realm expired with Henry’s death and that he could only open parliament with their consent. It was a body blow to the ambitious Gloucester.

[xxvi] PROME Vol 10 pp. 3

[xxvii] Griffiths p.20

[xxviii] PROME Vol 10 pp. 3 and 23-24

[xxix] PROME Vol 10, p.6; Anne Curry suggests that the Latin word rector could be translated as Regent.

[xxx] PROME Vol 10, Appendix, item 1. ‘The issue of the title of the duke of Gloucester’, p.61; citing as a source PRO C 47/53/12 (in Middle English), printed in SB Chrimes, ‘The pretensions of the duke of Gloucester in 1422 EHR 45 (1930). 102-3

[xxxi] PROME Vol 10, pp. 347-348, items 24-27

[xxxii] PROME Vol 10, ibid

[xxxiii] PROME; ibid

[xxxiv] Chrimes pp. 36-37; citing Proceedings and Ordinances of the Privy Council (Sir Harris Nicolas – ed) iii, pp. 231-36

[xxxv] I write on the basis that the ‘marriage’ of Edward IV and Elizabeth was bigamous.

[xxxvi] Chrimes pp. 167-190 with notes; see also Carson pp. 57-60 and 168-78

[xxxvii] This is a reference to Elizabeth Grey’s flight to the sanctuary of Westminster Abbey

Where another Duke of Gloucester died

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To find the incongruous ruins of this Bury St. Edmunds building, stand on Fornham Road, facing the supermarket car park with the car dealership and the bottom of Station Hill behind you then walk a few paces to the left. St. Saviour’s Hospital dates from about 1184 and was probably founded by Samson, the town’s abbot to accommodate twenty-four residents but frequently had financial problems.

In 1446/7, Humphrey Duke of Gloucester, who had been Lord Protector and Defender of the Realm to Henry VI by the same law under which Richard was to be invested, came here to await trial for treason. He died here “in suspicious circumstances” on 23 February, to be buried in St. Alban’s Abbey.

The Hospital was, predictably, dissolved in 1539 and the ruins consist of a large arch and some ground behind it, with several explanatory plaques.

Further reading: http://www.stedmundsburychronicle.co.uk/Rel-hospitals.htm

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

 

Like father, like son …

(by Matthew Lewis, originally published in History Today):

http://www.historyextra.com/article/feature/father-son-richard-plantagenet-and-richard-iii?utm_source=Facebook+referral&utm_medium=Facebook.com&utm_campaign=Bitly

 

 

A “Tudor” marriage and a contemporary journalist who is the bride’s collateral descendant.

Janet Wertman writes here about Emma Stanhope’s marriage to Edward Seymour, the Lord Protector to Edward VI. Seymour was ousted and executed in January 1552 alongside Emma’s brother, Sir Michael Stanhope. As shown in the last series of “Who do you think you are?”, Sir Michael was the ancestor of the BBC Security Correspondent Frank Gardner.

FrankGardner

Why it had to be the Tower

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Many Ricardians, although convinced of Richard’s innocence in certain matters, have been perplexed by his apparent uncharacteristic actions concerning the precipitous execution of William, Lord Hastings at the Tower.

Annette Carson has investigated the contemporary evidence and come up with a very plausible theory – she admits it is just that, a theory, but it is very interesting nevertheless and just as probable as all the other theories out there.

Have a look at it here: Annette Carson’s Website

 

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