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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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The Court of Requests and Thomas Seckford

In 1484, King Richard III created a minor equity court to deal with minor disputes in equity; these are disputes where the harshness of common law would be acknowledged by those appointed by the Crown. Equity courts were mostly seen as the Lord Chancellor’s remit, and the split of the Chancery Courts from the Curia Regis happened in the mid-fourteenth century. By the time of King Richard III, the Chancery Court had become backlogged from cases pleading the harshness of the common law, and the Court of Requests was no doubt and attempt to remove minor equity cases from the backlog and free up court time – Richard’s attempt at reducing bureaucracy and better administration.

So successful was the Court of Requests that it survived Richard’s reign, and was formalised by the Privy Council of Henry “Tudor”, the usurper. It was a popular court, because the cost of cases was relatively low and justice was swifter than the common law courts, which would ultimately prove its undoing.

Two Masters of Requests Ordinary were appointed by Henry VIII, and another two Masters of Requests Extraordinary were appointed by Elizabeth I. One of these was Thomas Seckford, of Woodbridge in Suffolk.

Thomas was an influential man, even before Elizabeth appointed him to the Court of Requests in 1558. He was MP for Ripon in November 1554, just months after his Grey cousins were executed, and was then elected MP for Orford (a fishing village on the Suffolk Coast which had two MPs despite only having a handful of residents) in 1555 and again in 1558. He was MP for Ipswich in 1559 and for Suffolk in 1571. Seckford Hall, (right) near Woodbridge, is known to have hosted Elizabeth’s court as she progressed, and was built in 1530 as the Seckford Family home; it is now a hotel, while a golf club sits within what was once its grounds. The A12 Martlesham bypass sweeps across the Finn Valley in front of the hall, giving wonderful views to motorists but somewhat destroying the character and appearance of the building and grounds. As an interesting side note, the hotel contains furniture from Buckingham Palace and Windsor Castle, including (allegedly) the chair Henry the Usurper died on.

Thomas Seckford commissioned Christophe Saxton to create the first surveyed atlas of the realm, which Elizabeth granted him a patent for its sole publication for ten years. This made him an even wealthier man and he added to his estates Clerkenwell, endowing the Seckford Almshouses with income from Clerkenwell. His wealth also led to the establishment of a free school, Woodbridge School, which is a minor public school. His wealth still helps young and old in Woodbridge today.

The Court of Requests fell foul of the common law courts at the end of the 16th century. Angry that business deserted them in favour of the more efficient Court of Requests, the common law courts overturned a number of decisions of the Requests Court, and banned them from imprisoning people; ultimately this was to prove their undoing, and the English Civil War, which led to the invalidation of the Privy Seal, was the final death of the Court, set up all those years before by King Richard for the better delivery of justice.

Thomas Seckford (left) died in January 1587, although we are not sure exactly when, whilst in his early seventies. His mother was Margaret Wingfield, relating him to both the de la Pole and Brandon families, and her mother was an Audley. In fact, Thomas could claim double descent from Edward I, through Joan of Acre, as well as many other great mediaeval magnates, including Edmund “Crouchback”. At his death, Thomas Seckford remained without issue, just like his fellow long-term royal servant Henry Hastings, Earl of Huntingdon. I need hardly add that Huntingdon was his cousin.

Witchcraft (3): Matthew Hopkins

matthew_hopkins_witch-finder-_wellcome_l0000812If the witchcraft trials at North Berwick in the 1590s and later in England, of which Pendle in 1610 is an example, happened because James VI/I fervently believed in witchcraft, as shown by the three characters in Macbeth, it can be argued that the subsequent decline in such cases came because judges and Charles I took a more sceptical approach, Charles being a more Anglican King than his father. There was, however, a significant case in his reign at Lancaster in 1634.

This trend was reversed in the early 1640s when the start of the First English Civil War saw Charles lose his authority over several parts of his largest kingdom but particularly Puritan-inclined counties such as Suffolk and Essex. To fill this vacuum, various individuals assumed some Parliamentary aut240px-st-_johns_church_great_wenham_suffolk_-_geograph-org-uk_-_213446hority in finding witches. Matthew Hopkins, born in about 1620, was the son of a Puritan vicar who had held the living of Great Wenham and land in Framlingham. By 1643, Matthew was an innkeeper near Manningtree but could also rely on an inheritance from his father and appointed himself Witchfinder General. With John Stearne and four followers, he began hunting witches the following year across the whole of East Anglia, subjecting them to the “swimming” ordeal, psychological torture and sending them for trial. By 1647, when his The Discovery of Witches was published, about three hundred people from Bury St. Edmunds to Chelmsford had been hanged, out of the five hundred such executions throughout England between 1400 and 1700.

Early that year, magistrates in Hopkins’ own region began to demand more evidence and the convictions stopped. Hopkins died that August, probably from tuberculosis. Stearne, a decade older, lived on in Bury St. Edmunds until 1670. Their methods had already spread to the New World Colonies, where there was a hanging in Connecticut in May 1647. The first American witch-hunt continued until 1663 but it wasn’t to be the last …

A further selection of Scropes….

The name “Scrope” was usually pronounced, and sometimes spelled, as “Scroop”.am

To follow yesterday’s post

William, Earl of Wiltshire c1351-1399

William was the second son of Richard Scrope, first Baron Scrope of Bolton. In his younger days he was sometimes associated with John of Gaunt, who made him Seneschal of Aquitaine in 1383.

Subsequently, he secured the favour of Richard II, who made him Vice-Chamberlain of the Household in 1393, and granted him the castle and lordship of Marlborough. In that same year his father purchased the Kingdom of Mann for him, an example of provision was made for a younger son without dividing the main inheritance. He was given the Garter in 1394, and after the fall of Arundel, Gloucester and Warwick in 1397 was made Earl of Wiltshire and given a share of the confiscated lands. In 1398 he was promoted to the important post of Lord Treasurer.

Although Scrope gets little mention in the accounts of Richard II’s reign it is clear that by this time he had become a very influential man. He was given the custody of a number of royal castles, including Wallingford and Beaumaris. He was left in England when Richard II went to Ireland in 1399, and was, in effect, the “active ingredient” in a government under the chairmanship of Edmund of Langley, Duke of York.

When Henry Bolingbroke invaded, Scrope was one of several men who abandoned the Duke of York and took refuge in Bristol. When that city fell to Bolingbroke’s forces, Scrope was captured and summarily beheaded. (He may have had a “trial” of sorts before the earls of Northumberland and Westmorland, but this is by no means certain.)

When one considers the gallons of ink that have been used in bemoaning the execution of the saintly Anthony Rivers in 1483, it is rather surprising to discover that Henry IV has received no similar criticism for the execution of Scrope, which amounted to plain murder, Henry holding no office at the time and thus acting as a lawless, private individual. Historians do not seem to think Scrope worth arguing about, although it is hard to discern what he had done to Henry that merited such savage treatment.

Subsequently, Henry’s first parliament threw a cloak of legality over the murder and confirmed the forfeiture of Scrope’s lands and possessions.

William Scrope had married Isabel Russell, daughter of Sir Maurice Russell of Dorset and Gloucestershire. Although Sir Maurice was far from being a minor member of the gentry, and was particularly active in Gloucestershire, his daughter was not an aristocrat, still less a Plantagenet, and this may help explain why Henry allowed her almost nothing to live on.

Richard, Archbishop of York, 1350-1405

Richard was the third son of Henry, first Lord Scrope of Masham. He received his first rectorship as early as 1368, although he was not actually ordained priest until 1377. The very next year he was no less than Chancellor of the University of Cambridge! He had, of course, achieved considerable academic success, but it seems likely that patronage also played its part. He was a papal chaplain in Rome from 1382-1386, and became Bishop of Coventry and Lichfield in 1386. His diplomatic career included a visit to Rome to further Richard II’s attempt to have his grandfather, Edward II, canonised. He was translated to the see of York in 1398.

Richard was possibly under the influence of the Percy family, with whom his family had connections, and made no attempt to prevent the deposition of Richard II. Indeed, with the Archbishop of Canterbury, he formally led Henry to the throne. On the other hand, when the Percy family rose in rebellion against Henry in 1403, there is no significant evidence that he was involved.

Henry IV remained deeply unpopular, not least in the North and there were a number of conspiracies against him in the years that followed. Unfortunately for them, his enemies never quite managed to coordinate their plans and bring their strength against him at the same time. 1405 was the year of the so-called Tripartite Indenture, the plan to divide England and Wales between Owain Glyndwr, the Earl of Northumberland. and Sir Edmund Mortimer. Owain had at last received armed French assistance, and was poised to invade England. It was in these circumstances that Richard Scrope, no doubt working in collaboration with Northumberland, raised an army of about 8,000 men which assembled on Shipton Moor. With the Archbishop were his nephew, Sir William Plumpton, and the young Thomas Mowbray, Earl Marshal and earl of Nottingham and Norfolk.

They were met by a force headed by Ralph Neville, Earl of Westmorland, which Northumberland had failed to intercept. Instead of engaging, the Archbishop agreed to parley and was tricked by false promises into disbanding his army. After that he, Plumpton and Mowbray were promptly arrested. After a travesty of a trial – a trial in which Chief Justice refused to participate – all three were beheaded.

Scrope was buried in York Minster and his tomb became an unofficial shrine. Lancastrian kings naturally sought to discourage to the cult, while the Yorkist kings, equally naturally, looked upon it with favour. However, Scrope was never officially canonised. It need hardly be said that Scrope was the first Archbishop to be executed in England – Becket, after all, was simply murdered – and with the sovereign’s full authority.  He was also the last prelate to be so dealt with until the Tudor era.

The Pope excommunicated all those involved in Scrope’s death, although the sentence was never published in England. Henry IV eventually secured a pardon by offering to found two religious houses; these were not, in fact, founded in his lifetime, but came to being under Henry V, and were the last such to be created in the medieval period.

It was soon after Scrope’s death that Henry was struck by the mysterious illness which made the rest of his life a misery. Naturally, his enemies ascribed his affliction to the vengeance of Richard Scrope.

Henry Scrope, Lord Scrope of Masham, c1370-1415

Henry Scrope was knighted by Richard II in 1392, and was retained by that king for life in 1396. Nevertheless he rapidly transferred his allegiance to Henry IV in 1399 and served him loyally in various capacities throughout his reign. His first wife, Philippa de Bryan, was a Welsh heiress (or perhaps more correctly a heiress of lands in Wales) and part of his effort was directed towards guarding her lands against the Glyndwr rising. He inherited the Masham barony from his father in 1406, but seems to have been “running the family business” so to speak for some years. He was briefly Lord Treasurer in 1410, possibly because of his connections to Prince Henry (who was running the government at the time because of Henry IV’s illness) and Sir Thomas Beaufort. In this role he was successful, and actually left a surplus in the Treasury at the end of his service.

In his private life, Scrope made a second marriage in 1410, to Joanne (or Joan) Holland, Duchess of York, the widow of Edmund of Langley. Joanne was a wealthy woman – T. B. Pugh estimated that her survival for thirty-two years after Langley’s death cost the York family in excess of £30,000. Quite apart from this, Joanne had a portion of the earldom of Kent (following the death of her brother, Edmund, in 1408) and also a share in the lands of her second husband, Lord Willoughby. The joint income of Scrope and his wife was around £1,800 a year, a vast amount for a mere baron.

Unfortunately Joanne and her husband did not live in wedded bliss, and it appears that around 1413 she left him, at least for a time, taking with her about £5,000 worth of his property and decamped to her Yorkist dower castle, Sandal. In his will of June 1415 he offered her a choice of his belongings to the value of £2000 in return for her abandoning any claim to one third or one half of his goods. This suggests his belongings must have amounted to more than £6,000! Since Joanne was already engaged in a quarrel with her Willoughby stepson over personal property, it seems she was not a lady who considered material possessions to be unimportant.

It should not be overlooked that Henry Scrope was a nephew of the late Archbishop of York, and it may be that his loyalty to the Lancastrian regime was not a fervent as it appeared on the surface. In any event he allowed himself to be drawn into the conspiracy known as the Southampton Plot led by Joanne’s stepson, Richard of York, Earl of Cambridge, which sought to replace Henry V with the Earl of March.

It is equally possible that Scrope went into the conspiracy with every intention of betraying it. It appears certain that he did his best to persuade the Earl of March not to get more deeply involved – hardly the action of a convinced plotter – and that he remonstrated with Walter Lucy, March’s close adviser over the matter. Scrope was not even invited to a crucial supper party at Cranbury, held by March and attended by Cambridge, Lucy and Lord Clifford.

However, it was March, not Scrope, who disclosed the conspiracy to Henry V, and the result was that Scrope was executed and all his lands and possessions forfeited. Duchess Joanne acted very promptly to secure a share of the proceeds, including a solid gold statue of the Virgin and various items of plate stamped with the Scrope arms that she claimed as her personal property. It appears nothing was done to retrieve the various expensive items she filched. Scrope’s brother and heir, and his mother, were not so fortunate. Although Henry V intended to permanently alienate most or all of the family’s lands, he had an attack of conscience on his death-bed, and the youngest Scrope brother, and eventual heir, John, was able to rebuild much of the inheritance.

It is, in fact, unlikely that Henry Scrope was guilty of intending the deaths of Henry V and his brothers. It is much more reasonable to say that his offence amounted to Misprision of Treason at worst.

Sources:

Complete Peerage, G.E. Cokayne

Henry IV of England, J.L. Kirby

1415, Ian Mortimer.

The Fears of Henry IV, Ian Mortimer

Henry V and the Southampton Plot, T.B. Pugh

The History of England Under Henry the Fourth, J.H. Wylie

Notes:
This explains how closely the three rebels and Sir Ralph Scrope were related. Note that Sir William of Bracewell’s sons married two de Ros sisters and that the Bolton branch lived on into the seventeenth century although the Masham male line died out early in Henry VIII’s reign. Furthermore, Richard, Bishop of Carlisle, was Richard III’s cousin.

Radio Interview Regarding the Leicester Cathedral Controversy

Having heard that Leicester Cathedral were staging a performance of Shakespeare’s Richard III inside the Cathedral itself, feet from where Richard is buried, I felt I had to do something to protest. It is not that I object to Leicester putting plays on in the Cathedral, although some do. Nor do I hate Shakespeare’s Richard III per se – it is true that he would not be anywhere near as famous without Shakespeare, although perhaps many would feel it preferable if he were less well known and less vilified. And Shakespeare was, of course, a genius, a fact which serves Richard ill because the plays, including the Bard’s Richard III, will never stop being performed. We must try to ensure that any future production of it will incorporate a disclaimer stating that it is fiction and giving a summary of the true Richard.

But it is quite a different matter to stage the play beside Richard’s tomb. So, I started a petition and was lucky enough to be interviewed about it on my local radio station, BBC Essex. Here is the transcript of the interview (there is a link at the bottom to BBC iPlayer, but it will be there only until the end of May 2017):

Dave Monk: Now you may be familiar with the incredible story about Richard III. Now the king was killed following his defeat at the Battle of Bosworth, fought in 1485. His remains were found recently, unearthed beneath a Leicester car park. Well, they now reside in Leicester Cathedral, but a bit of a row has broken out because a production company wants to stage a performance of Shakespeare’s Richard III right there. And funnily enough (he said, name-dropping) I was with the Duke of Gloucester this afternoon, who’s all part of that, of course, because he was Richard, Duke of Gloucester. Critics say it is disrespectful and insensitive as the play portrays Richard in a bad light. Oh, yes it does. Well, Essex author, Joanne Larner, from Rayleigh, is behind the petition calling for the performance to be stopped. And I’d like to know why that is. Joanne, great to have you on. Why have you set this up?

Joanne: Well, it’s just, I thought it was such, a…I was so disappointed. I’ve visited the Cathedral several times and I even was there for the reinterment and I thought they did it really well and they promised to treat Richard’s remains with dignity and honour and I’m so disappointed and saddened and completely disgusted now that they’re doing this because it is almost as if they are dancing on his grave, in a way and I don’t think they are keeping their side of the bargain of treating his remains with dignity and honour.

Dave: Because, let’s face it, Rich – sorry, Shakespeare’s Richard III, Richard was the bad guy. He was a scheming, nasty hunchback, a nasty king, and that’s how he was portrayed and we have no idea whether that’s the truth or not, have we?

Joanne: Oh yes we do!

Dave: Oh go on, then.

Joanne: Well. we think that that portrayal was partly Tudor propaganda – Shakespeare was writing in Tudor times and Tudor had to defame Richard’s character to justify his own taking of the throne. And also, I think as well that Shakespeare may have been doing a satire on a politician of his day, Robert Cecil, who was a hunchback and who was very unpopular. And so, it might not even necessarily be solely about Richard. But, in any case it’s fiction, it isn’t history and the real Richard actually did a lot of good things. I could give you some examples if you’d like to know some of the good things he did.

Dave: Yeah, I’d really like to know, yes.

Joanne: Well, he tried to stamp out corruption of the juries. He was only king for two years, as you know, and he only had one Parliament, but he did all this. He brought in a primitive form of legal aid for the poor, he encouraged reading and learning, he exempted books from taxes – that’s not the action of a tyrant, they usually discourage learning and reading. He had his laws made in English for the first time, so that more people could understand them, he was known before his brother died to be just, loyal and courageous. He was the last English king to die in battle, defending his country and his crown.

Dave: Well, let’s face it we’ve got to always remember, that it’s the victors who write the history books.

Joanne: Exactly, yes.

Dave: You’ve always got to keep that in mind, haven’t you? Why your fascination?

Joanne: Well, I only got interested, actually, after they found him and I saw the documentary and it absolutely fascinated me. And especially the lady, Philippa Langley, who was so passionate about him and I thought, well, how can someone be so passionate about someone who’s been dead five hundred years? And it made me research him and find out about him and I was so inspired that I’ve actually written three novels about him now.

Dave: Pretty good going, isn’t it, really?

Joanne: Mmm, and I’m just as passionate as she is. So – there’s a lot of us   and we all feel really strongly about him.

Dave: So, if it is, I mean you say it’s fiction, if Shakespeare’s Richard III is just fiction, why the big deal? Why the big problem?

Joanne: Well, simply because it portrays him in such a bad light. He’s portrayed as an evil hunchbacked tyrant who murdered his way to the throne and to perform that play literally feet from his grave, I think is just terrible.

Dave: How’s the petition going so far? Have you got much support?

Joanne: Well, it’s only been on for a few days, we’ve already over seven hundred, but obviously the more, the merrier, so anybody else who’d like to sign, I’d really welcome it. You know, it you feel as outraged as I do. I mean, I know Leicester Cathedral do have to make money and they’ve put on other plays there which some people don’t like but I understand that, you know, that they can’t, they don’t charge an entrance fee to the Cathedral, and they’ve put on Richard III before, so they say, but that was before Richard was there. And it’s this juxtaposition of that play and that place that’s the problem.

Dave: Oh alright, Joanne, thank you very much. Joanne Larner, Essex author, from Rayleigh and she is behind that petition to get that performance of Richard III stopped.

 

Since the interview, we have reached well over a thousand signatures – please add yours by clicking the picture of his tomb below.

Photo of Richard III's tomb

Clcik here for link to hear interview – starts near the end of the programme, about 2:45-46

The True History of King Richard III (Part IV)

The sack of Ludlow 1459


Richard’s first teacher was Lady Mortimer, who taught him handwriting and country dancing. As Lady Mortimer’s late husband had been on the very fringe (almost dropping off the end) of Richard’s family tree, she also taught him something of genealogy, and he discovered that he was descended from Lionel, Duke of Clarence, which made him senior in the succession to Henry VI himself! It turned out that when the Lancastrians (who were descended from John of Gaunt, Lionel’s younger brother) had stolen the throne in the early fifteenth century they had forced the York family to pretend that they were only descended from Edmund of Langley (Gaunt’s younger brother.)

This injustice set Richard seething, but he was also delighted to find that he was much nearer to the (rightful) possession of the crown than he had previously imagined.

Richard’s studies continued under the Reverend Doctor Stiffkey (of Stiffkey in Norfolk) who taught him Latin and Canon Law. George shared these lessons, but although he was Richard’s elder he was a dull pupil who was often reduced to copying from his brother’s book.

George and Margaret played together, as they were close in age, but Richard only had his pet pig, Henry. (Naturally he was already planning to turn Henry into sausages when Henry got big and fat enough.) It was having this pig that persuaded Richard to choose the White Boar as his personal badge. He also learned from Doctor Stiffkey that Ebor was York in Latin, so it was a pun as well, which Richard found amusing.

Margaret of Anjou called a Parliament to which neither York nor his friends were invited. This made York very suspicious so he sent for all his friends to join him at Ludlow with their soldiers. This led to at least one battle (Blore Heath) as Salisbury forced his way through from the north. Warwick came all the way from Calais and brought much of the garrison with him.

Margaret had an even bigger army, which she marched all the way to Ludford Bridge, just outside Ludlow. The even had Henry VI with them, and the sight of Henry’s banner was enough to make many of York’s followers desert, as the Lancastrian army was so much bigger they thought they might lose and then be executed as traitors.

This led to an urgent family conference. York, and his elder sons, Edward and Edmund, Salisbury and Warwick all slipped away in the night, taking only their hand luggage. Duchess Cecily, with only George and Richard and a pimply lad called William Hastings to protect her, walked down to Ludlow market cross, in the hope of picking up a lift to Fotheringhay,

The Lancastrian army arrived soon after dawn. The Duchess, drawing herself up to her full five foot eight plus hennin, told her children to be brave, and William Hastings waved a white flag as vigorously as he could.

The leaders of the Lancastrian army were in a foul mood, and they were just about to do terrible things to the Duchess and Margaret when they caught sight of the expression on Richard’s face. As one man, they stepped back in fear, and several of them, including Lord Clifford, actually soiled themselves, which was very inconvenient given that they were all wearing armour. The Duchess, who had closed her eyes to think of England, believed ever afterwards that the Holy Trinity had saved her, but it was actually her youngest son, already by far the scariest person in the land.

Henry VI himself showed up – he was far too holy to be scared, but he pardoned the Duchess and those with her on the spot and put them under the guard of trusted men, which, in the circumstances, was quite unnecessary.

There then took place what is known as the ‘sack of Ludlow’. This incident has been grossly exaggerated by Yorkist propaganda, much of it undoubtedly put about by Richard himself. In truth, no women were raped, no houses plundered to the bare walls. The Lancastrian soldiers merely knocked politely on doors and asked for contributions to ‘Lancastrians In Need’ which was a charity lately set up by Henry VI. The odd penny, or perhaps a loaf of bread, was all they wanted. The only real casualty was Henry the pig, who was slaughtered so that everyone could have a bacon sandwich.

Richard just HAD to be one of the seven….!

13c manuscript depicting coronation - believed Edward II

http://www.historyextra.com/article/richard-iii/7-medieval-kings-you-should-know-about

Richard HAD to be one of the seven. He may have only reigned for a couple of years, but what years they were. And if he’d won at Bosworth, what a wonderful age his reign would have been. The legislation passed at his parliament was a mere taste of what he wanted to do for England. A great king murdered by feckless traitors, who by their betrayals opened the door for the blood-stained House of “Tudor”.

Biased? Moi? Yes, of course, but that doesn’t make me wrong.

Edward, the Black Prince.

I came across a conversation recently where people were regretting the early death of the Black Prince, because apparently everything would have been much better had he lived.

Unfortunately, even people interested in English history tend not to appreciate that at the end of Edward III’s reign England was 1. losing the war with France (badly) and 2. almost bankrupt.

So unless the Black Prince was secretly a magician who could conjure gold out of the air – paper currency being a thing as yet unknown – he would have struggled with the same issues Richard II and his Council faced – that is, how to raise money without upsetting the easily-upset English taxpayer. And if you look at Edward’s track record with his taxpayers in Gascony, it would probably not have been pretty.

A rather similar conversation can be had around Henry V. It is true that at his death the English military position had not collapsed (as it had in 1377) but the problems with money had already started. Parliament was not for splashing out. Not even for Henry V. Poor old Henry VI never had a chance – arguably his followers did extremely well to hold on to as much as France as they did for as long as they did.

If I am going to regret anyone’s early death it would be Edward IV’s. Had he lived another ten years Richard of Gloucester could have continued happily in Yorkshire, Henry Tudor would be a mere footnote in history, and a whole lot of sorrow would have been avoided.

The Problem with ‘Usurpation’ (re-blogged from http://www.annettecarson.co.uk/357052370)

With my long-standing interest in treason and usurpation, I was fascinated to see the video of the mock trial of the Magna Carta barons staged in the wonderful surroundings of Westminster Hall on 31 July 2015.* I use the term ‘Magna Carta barons’ loosely, and indeed the trial itself could address only one arbitrary, early point in the long journey of the development of that charter which eventually gained its famous title. This was the moment in time at which King John had, after much ducking and diving, sealed the charter in June 1215 and immediately reneged by getting Pope Innocent III to repudiate it.

Though doubtless there will be historians who disagree, I take it – as did the script of the trial – that King John had hitherto behaved in a manner so thoroughly unacceptable as to be termed tyrannical. In giving his judgement, The Hon. Stephen Breyer from the USA cited John Locke’s (albeit anachronistic) assessment that for his subjects to have the right to rebel, a king should be seen to have systematically refused to adhere to the law of the land. Of course no method of testing a king’s behaviour in a court of law existed in 1215, but for his rule to be considered truly tyrannical I think this criterion would be taken as read.

Legal frameworks of the time would have been governed by the weight of precedent, and certainly the judges at our mock trial took the view that John himself had been ‘made king’ by a legal process. This process included religious ceremonial with sacred oath-taking, not only oaths of allegiance but also the coronation oath sworn by the king himself. In consequence of King John’s breaching of the latter, the rebellious barons invoked a long-standing custom and – therefore – legal right known as diffidatio, i.e. they exercised the right of a free man to repudiate his oath of loyalty to his overlord for a justifiable reason. Underpinning this right of diffidatio was the recognition that fealty was a two-way street: that for a subject to keep his oath, the king must do the same.

In our modern age, when promises made are routinely broken, and ‘God-fearing’ is no longer a term to be taken literally, the significance of an oath sworn while invoking the presence of God is scarcely understood and seldom respected: consider the context of judicial process, which is one of the few surviving circumstances when such oaths are still routinely encountered (and routinely flouted). Yet in the Middle Ages, as I have tried to indicate in writings such as my Small Guide to the Great Debate, the process of oath-swearing was one of the pillars of mediaeval society. It was a crucial matter if either party abandoned their solemn oath.

The bonds of this mutual compact defined the relationship between king and subject, already long-established by the 13th century, and gradually developing throughout the ages. It is this promise on the part of the king that is most often forgotten in the cries of ‘usurper!’ that are so widely bandied about in relation to certain monarchs; and it is key to my repeatedly asserted argument that most often the term ‘usurpation’ is a misnomer that merely reflects the prejudices of the person using it.

In pre-Conquest England there was in place a history of election of kings by the Saxon equivalent of Parliament (the Witangemot), based on the fundamental requirement of the office to perform a mutually understood function: the defence of the realm and its people. This was gradually extended to include wider responsibilities, notably for the proper administration of justice. In return, the king was entitled to call upon his people to perform whatever was understood to be due to enable him to fulfil such responsibilities. The principle that the king had a duty to perform a job of work continued to be understood for many centuries, and it was only by analogy with succession from father to son in other areas of life that a similar expectation developed in relation to the throne. Although kings often tried to influence who succeeded them, there was never any ‘law of succession’.

Requirements such as embodying the fount of justice as well as the office of leader and commander throw a clear light on crises of succession like the deposition of Edward II, Richard II and Henry VI who fell short of expectations. An even more relevant case is that of the conflict between Stephen and Matilda. Matilda might be the only surviving legitimate issue of Henry I, but his decision to make her his heir was self-serving and ultimately catastrophic: she was not born into an age when a woman could don harness and lead an army in the field. Returning to the mock trial of the barons, a question raised by the presiding judge exemplifies an abiding misapprehension on this point. Why, asked the judge, did the barons in 1215 not choose to replace John with his son, Henry (later Henry III), then aged seven? The question answers itself when you are not blinded by the assumption that the crown was governed by some imagined law of father-to-son succession: in a time of turmoil and civil strife, when the very rule of the land needed to be taken into strong hands, what fool was going to opt for rule by a seven-year-old? That he was later able to succeed upon his father’s death (now aged nine) was principally a function of the abilities and virtues of William Marshal, Earl of Pembroke, his champion and Regent of England.

In 1399 a new dimension entered into the matter of the succession when Henry IV challenged Richard II for the crown and the latter abdicated, rather than defending his right to the death as would have been appropriate to the tradition of the warrior-king. Parliament was drawn into the front line in the disposition of the crown, going through the formal procedure of acknowledging the abdication of Richard and the succession of Henry. The new king is said to have publicly exhibited proof of his genealogy, but the record of the Rolls of Parliament is remarkably non-committal in regard to his descent, and much more specific as to the rewards of his victory over the ruinous former king:

‘In the name of the Father, Son, and Holy Ghost, I, Henry of Lancaster, claim this realm of England, and the crown with all its members and its appurtenances, inasmuch as I am descended by right line of the blood from the good lord King Henry the third, and through that right that God in his grace has sent me, with the help of my kin and of my friends in recovering it, which realm was at the point of ruin for lack of governance and destruction of the good laws.’ [Parliamentary Rolls of Mediaeval England, 1399 Part 1, vol. iii, pp.422-3.]

Here we have an echo of that same accusation as used by the barons against King John; and despite the fascinating arguments concerning precisely which line of royal descent Henry IV might have claimed, the salient point of this remarkable statement, as accepted and recorded by Parliament, was that God had favoured him in stepping in to avert the ruin of the realm. Had there existed a law of succession which stipulated primogeniture, there was in fact a royal descendant whose claim would have been superior to Henry’s: this was the young Mortimer heir Edmund, Earl of March, then the same age as the son of King John whom we encountered above. Clearly, when the option of the valorous and successful adult Henry was available, there was no support for the claims of a seven-year-old, however senior his line of descent. A child of that age, and one who lacked the support of a strong figure as Regent, ipso facto failed the basic qualification as warlord-cum-lawgiver.

It is also noteworthy that the childless Richard II, knowing that the succession to the crown was being eyed by his several uncles, had kept them guessing by naming alternative heirs at different times: another indication that primogeniture was not regarded as the primary criterion. Henry IV, once on the throne, tried to secure the succession to his line by statutory enactment in Parliament, but the view of Stanley Chrimes (in English Constitutional Ideas in the Fifteenth Century, p.24) is that this was merely declaratory and did not determine the line of succession: it recognized but ‘did not create’ Henry’s title. By the same token, it made no general provision for a public law of succession.

Only in 1460, when Richard, Duke of York came to press his claim to the throne in opposition to Henry VI, was the emphasis on primogeniture brought to the fore. York’s claim depended on it wholly – it rested on his sharing the same senior line of descent as the Mortimer heir disenfranchised by Henry of Lancaster sixty years earlier. And although Parliament made several attempts to avoid passing judgement on the matter, when forced to reach a conclusion they decided in York’s favour. There were, of course, excellent reasons for striking the bargain that reduced Henry VI to a cipher, since his inept and compliant rule had bankrupted the crown and allowed England to degenerate into a smouldering civil war.

In the case of Henry IV, could the word ‘usurpation’ be applied? The historically literate answer is no. In 1399 Richard II had abdicated rather than defend his crown to the death, effectively abandoning the throne to the judgement of Parliament which accepted Henry of Lancaster’s argument that God had helped him rescue the realm from misgovernment and lawlessness. This echoed the complaints of the Magna Carta barons, namely that the king had resiled from his sacred oath to fulfil his responsibilities to his subjects. So by these standards, and as accepted by Parliament, Henry IV cannot be named a usurper in terms of the legal structure of the day.

It was only in 1460 that Richard, Duke of York secured a decision by Parliament which established primogeniture as an acknowledged criterion for the succession. How this criterion was applied in hindsight to the Lancastrian succession raises a thicket of legal questions, the untangling of which would take someone more expert in jurisprudence than me. Clearly York’s argument was that the first Lancastrian king was a usurper, and his statement to Parliament went into extensive genealogical detail to disprove Henry’s fanciful tale that his mother’s line of descent from Henry III was senior to the line of Edward III and Richard II. However, to this inexpert observer it seems that the Parliament of 1460 stopped short of disallowing the legitimacy of the Lancastrian dynasty, which fits with their desire to reach a compromise with Henry VI. It would have been simpler, and in hindsight would have prevented much unrest and loss of life, if they had declared him a scion of a usurping line, but that would have meant deposing him. Perhaps their legal advisers balked at the idea of retrospective legislation. And York himself had always vowed himself Henry’s true subject. Whatever their reasoning, an accommodation was cobbled together which permitted Henry to keep his crown on condition that York was acknowledged as his heir apparent. I am tempted to suppose that the Lords in Parliament recognized that Henry’s mental capacity was dubious, and that it would be unrealistic to hold him to oaths he had sworn as a child which he probably no longer remembered or comprehended. Whichever way you look at it, although York’s claim of primogeniture was accepted, the deal of 1460 was unique to the prevailing circumstances; it could scarcely be regarded as a precedent, and indeed it permitted the line of Lancaster to cling to the view that theirs remained the rightful royal house of England.

Thus Parliament had signally failed to grasp the opportunity to codify any law that stipulated primogeniture (or anything else) as a qualification for the succession. As Stanley Chrimes commented, ‘It does indeed seem that no such public law existed. In the absence of a direct and competent heir, politics, not law determined the succession. Hence both judges and commons avoided the topic.’ [Op. cit. p.22.]

The effect was that however the royal family’s internal issues were decided, whether by themselves or by any outside agency, the situation remained as it was in 1215: that he who took on the sworn obligations of kingship would be held to account for how he performed them. And if he should be adjudged deficient, it was not usurpation but a necessary service to the kingdom to remove and replace him.

* https://www.youtube.com/watch?v=8MU7tK6HM3Q. For those of us who have crossed swords in the past with James Eadie, QC, there was a particular piquancy to his defeat on this occasion.

YORK OR LANCASTER: WHO WAS THE RIGHTFUL KING OF ENGLAND?

Part 2 – For a kingdom any oath may be broken – York’s title 1460

 

Introduction

This is an essay about the legitimacy of the duke of York’s title to the English crown. I am not going to delve into the duke’s motive for claiming the crown, or into the details of the rebellion that led to his claim. I have covered both these issues in previous posts on this site[1].

Who was the true king of England: the Lancastrian Henry VI or his cousin Richard duke of York? That was the question uppermost in the minds of the lords spiritual and temporal in parliament in the autumn of 1460.[2] They were debating this question because: “…In October the duke of York came over from Ireland to Westminster at the beginning of parliament and as soon as he had entered the upper chamber of the royal palace, where the lords spiritual and temporal were sitting, he approached the royal throne and claimed the seat as his own; he put forward an account of his descent from Lionel duke of Clarence, to whose successors, he said, the kingdom of England belonged, since he was the elder, rather than to the descendants of John duke of Lancaster, the younger brother from whom king Henry was descended.[3] It was a claim as dramatic as it was unexpected and parliament was fully occupied for three weeks discussing the duke’s lineage and his rights.

The outcome of their discussion was so disconcerting to the anonymous author of

‘A Short Latin Chronicle’ that he lapsed into English when writing about it: ”Wherefore the king understanding the said title of the said duke [to be] just, lawful, and true and sufficient by the advice and assent of his Lords spiritual and temporal and the commons in the parliament and by the authority of the same parliament, approves, ratifies, confirms and accepts the said title (as) just, good, lawful and thereunto gives his assent and agreement of his free will and liberty. And moreover it is said by advice and authority, declared, called, established, affirmed, and reputed that the said Richard duke of York (is) very true and rightful heir to the crown of England and France.”[4] Everything is in the duke’s favour except the outcome. His title to the throne is thrice lawful; the Lancastrians are thrice usurpers. Nonetheless, York is not to be crowned until after Henry is dead. It was a recipe for disaster.

York was ten years older than Henry and statistically, at least, unlikely to outlive him. More importantly, the queen and her disinherited son were still at large with an armed force, embittered and well able to oppose this Act of Accord. Not for the first time, nor for the last, an English parliament had managed to make a bad situation worse. The only royal settlement likely to subsist now was one settled on a battlefield. Moreover, the Act of Accord presents a constitutional conundrum. If parliament judged York’s title to be unbeatable, why did they not give effect to their judgment? And, if York believed in the truth and justice of his title, why did he agree to bend his knee to the usurping Henry? The answers to these questions lie in the politics of the day.

York’s Petition

York submitted his written claim on the 16 October 1460[5]. It had the virtue of simplicity, being based solely on his hereditary right of succession. The only evidence adduced was York’s lineage. The main thrust of his case was that in 1399, when king Richard II was deposed, Henry of Lancaster seized the throne, which more properly belonged to Edmund Mortimer earl of March who was descended (through his grandmother Philippa) from Lionel duke of Clarence the third son of king Edward III; whereas, Henry of Lancaster was descended from John duke of Lancaster the king’s fourth son.

The Lords’ objections

The king, who was consulted next day, requested the lords to state objections to Yorks claim.[6] The lords prevaricated. They asked the king’s justices for advice. The justices declined to give it on the grounds that the succession was above the common law, and beyond their jurisdiction and competence. The sergeants-at-law also refused to give their counsel; they argued that if the succession was too weighty for the king’s justices, it was surely above the sergeants’ learning and authority. It seems that only those of the blood royal, and the lords spiritual and temporal were qualified to solve this problem. Freedom of speech was allowed and each lord was to put forward whatever he could to strengthen the king’s title and to defeat York’s. Eventually, five objections were raised:

  • First, the lords were bound to remember the great oaths of fealty that they had sworn to the king. These oaths argued against York’s claim since they could not be broken.
  • Second, the great and noble acts of parliament (unspecified) made in various earlier parliaments could be used against York’s title. Being statutes, these acts carried far more authority than any chronicle and defeated any claim made by any person.
  • Third, similarly, the various entails (again unspecified) made by the heirs male with regard to the crown of England argued against Yorks title, as may appear in various chronicles and parliaments
  • Fourth, York did not bear the arms of Lionel duke of Clarence; and
  • Fifth, Henry succeeded to the throne as the heir of king Henry III, and not as a conqueror

 

York’s response to the objections

The matter of oaths was important, which is why it was the first objection. Although it did not go directly to the merit of York’s title, it was a considerable barrier to the success of his claim. The lords were concerned about two things. First, their own oaths of allegiance to Henry as king “by succession, borne to reign” and to his son Prince Edward, which they had sworn less than twelve months previously at Coventry. Second, they were reminding York of his own oaths of allegiance and obedience, and many protestations of loyalty made to the king over the last decade. The breaking of these oaths was not merely a religious impropriety; it was sinfulness, the breaking of God’s law. To be forsworn was to court eternal damnation.

York responded in kind. He acknowledged every man’s duty to uphold God’s law and Commandments. However, he distinguished between oaths that preserve truth and justice and oaths that promote untruth and injustice. The first kind is obedient to Gods law, which prefers truth and justice; whereas, the second kind is contrary to God’s law. Moreover, since no man can absolve himself from obedience to God’s law to uphold truth and justice and since the oaths referred to by the lords are of the second kind, they are void and of no effect. An oath of allegiance does not bind a man to do anything unfitting or unlawful.

Despite the spiritual views expressed by both sides, Yorks final sentence contained an unmistakable temporal message for the king and his lords. It was a principle York had expressed in an open letter to the king just before first St Albans (1455). Whilst emphasizing, yet again, that he and his followers are the king’s true liegemen ready to live and die in his service he added “…to do all things as shall like your majesty to command us, if it be to the worship of the crown and the welfare of your noble realm (my emphasis).” York was putting conditions on his loyalty and obedience. He was making an important distinction between the institution of ‘the crown’ and the person of the king, and between them both and the rights of the realm. The implication is that although ‘royal authority’ is vested personally in the king, he must behave in accordance with the accepted norms of English monarchs as expressed in the coronation oath that binds them all. York is also introducing the concept of the ‘realm’ of England as a political entity distinct from the monarchy. It has its own rights to which the crown is ultimately responsible. This was more than just a device to protect him from accusations of treason or ‘oath-breaking’; it represents a fundamental tenet of England’s constitution, which we see put most forcibly in Magna Carta.

The second and third objections raise a significant constitutional issue. The key question is whether the Act of 1406, which gave statutory recognition to Henry IV’s title, was the final authority on the issue of succession. The lords obviously thought so, since they argued that it was of an “ authority to defeat any kind of title made to any person”. Having pointed out correctly that the only statute or entail made by any parliament in the past was the Act of 1406, York based his case on two mutually supporting grounds. First, if Henry IV’s title were valid as claimed, he would neither have needed nor wanted statutory recognition of it. Second, his own title being true according to God’s law and natural law was imperishable, even though it had not been asserted earlier. Henry’s title, however, was pretense and in passing the statute, parliament had recognized a title that Henry was not entitled to. The Inheritance Act of 1406 was, therefore, ultra vires. From a constitutional perspective, this was an important development; the theory of a parliamentary title was being subordinated to a theory that God’s law of inheritance determined the succession. York was not impugning the authority of statutes generally; he was simply saying that even though a statute (or an entail) might be binding in normal circumstances, it could not stand against his divine right of inheritance[7].

On the fourth objection that York did not wear the livery of his ancestor Lionel, his answer was predictable. The fact that he didn’t wear that livery did not mean he was not entitled to. He did not wear it for the same reason he had forborn from claiming the crown earlier, and which reason was well known.

The last objection was that Henry took the throne as the rightful heir to Henry III and not as conqueror[8]. York rejected this objection outright. It is simply not true, he said, that Henry IV was the lawful heir to Henry III “…and the opposite, which is the truth shall be readily enough shown, proved and justified by adequate authority and as a matter of record”. He added that Henry’s words were fraudulent and meant to disguise his “…violent and unlawful usurpation” from the people.

The Act of Accord

The Official account of the lords’ “sad and ripe communicacion in this matere[9] is brief but illuminating. The tension at Westminster is palpable. Under pressure from York to bring the matter to a rapid conclusion, the Chancellor seems on the verge of panic. He is desperate for a result that will reconcile York’s ‘unbeatable’ title with the lords corporate obligation to protect the common weal of the realm, their personal duty to king Henry and their consciences. The Chancellor proposed that Henry should retain the crown during his lifetime and when he dies, York should succeed him. It is, the Chancellor suggests, a resolution that avoids the trouble that might ensue, saves the king’s honour, preserves his dignity and estate, and may appease the duke of York — if he agrees! It also means the lords will not have broken the oaths they swore to the king at Coventry. The Chancellors plaintive call for anybody with a better idea to come forward is testament to his despair; as also, is his plea that the lords should stand by him when he explains the situation to the king. For want of something better, the lords readily agree to this outcome.

In truth, there was no appetite to depose a crowned and anointed king who had reigned for thirty-eight years, no matter how grave were his faults[10]. Although the lords sympathized with York’s predicament, they regarded his claim as inopportune. Notwithstanding the legality of his title, he was unable to overcome fifteenth century realpolitik. It was further confirmation that the succession was a political and not a legal process. For the lords the overriding consideration was to preserve the peace of the realm. It is a consideration that ordinarily would protect them from accusations of inconsistency and bad faith; however, in reality they were simply evading the issue and not solving the problem. Only the complete destruction of the Queen’s party or the Yorkists had any hope of procuring an effective peace. Furthermore, the disinheritance of the Prince of Wales guaranteed the continuance of war.

The historical opinion of York’s behaviour is unforgiving. At the time, the Lancastrians depicted him as a hypocrite whose claim to the crown was based on personal ambition and not on the common interest. Many modern historians endorse that view and it is easy to understand why. He swore at least two oaths of allegiance to the king and one of allegiance and obedience, and he made numerous declarations of his loyalty; yet in the end, he tried to depose Henry. York’s integrity can only be defended by examining his motives, which is outside my scope. Therefore, I will not comment on these accusations save to add a health warning. Most, if not all, of this opinion is derived from Lancastrian propaganda. The Yorkist counter-claims are clearly set out in the many political manifestos they produced during the 1450’s. These contained Yorkist propaganda for sure, but a balanced view of what was happening is only possible by considering both sides of the argument.

That said, I do believe that York’s action in accepting the Act of Accord, and his motive for so doing have been misconstrued by some historians. Parliament, it seems, is absolved from acting inconsistently or in bad faith because they moved to preserve the peace; whereas York is denounced for doing the same thing.[11] It is a strange judgment that simultaneously acquits the lords and convicts York for keeping the peace.

He had “taken the moral high ground and promptly compromised” writes John Watts, adding that “under the terms of his own argument, Duke Richard could not bind himself to the deferment of his right during Henry’s lifetime: any oath to do so would be contrary to God’s law and hence null and void.” The professor adds with a flourish “what true king would agree to be subject to a usurper?[12] The notion that York was prevented from accepting the Act of Accord since, on his own argument, it was untruthful and contrary to God’s law, is a shallow one. It ignores the reality of York’s situation and does his argument on the matter of oaths a disservice. The succession cannot be considered in the vacuum of religious doctrine, moral rectitude or personal right. It is, I repeat, a political process, not a legal or religious one. From York’s perspective, this action had been forced on him by constitutional system that made it impossible for him to protest against the excesses of a corrupt and incompetent Lancastrian regime and the breakdown in law and order, without committing treason. York’s cause of action had never been against the king, but against those household servant and royal favourites who abrogated royal authority.

For ten years York championed the cause of good governance in the common interest but he had achieved nothing, other than a reputation as an incorrigible rebel. This was the opportunity to put both the will and the means for good governance in one person. There is no discord between his argument on oaths and his acceptance of a compromise. Whilst the Act of Accord fell short of his objective, it commanded the most support and was self evidently in the common interest. It would indeed have been contrary to God’s law for York to insist on the strict letter of his right at this time and against the wishes of the English lords. He realized he lacked the broad spectrum of support necessary to depose Henry. The change from being the king’s true liegeman to wanting to replace him was too much too soon even for many of York’s supporters. The fact that this desire for a peaceful outcome was futile is neither here nor there from York’s perspective. Since he could do nothing to guarantee the pacification of Lancastrian dissidence, he could at least ensure his own good intentions.

Ultimately, York’s challenge ended in failure. A successful strategy depended on speed and surprise ‘…a speedy coronation; the swift removal of Henry…’[13] Once York was forced to claim the throne rather than seize it, his enemies had time to concert their opposition to him. However, by establishing the superiority of his title over the Lancastrians, York paved the way for his son Edward to seize the throne in 1461.

[1] See Richard 3rd duke of York (2) ‘The king’s true liegeman’ – 10 February 2015; and (3) ‘The man who would be king’ 8 March 2015 https://murreyandblue.wordpress.com/

[2] Chris Given-Wilson (Ed) – The Parliamentary Rolls of Medieval England (Boydell Press 2005): Anne Curry and Rosemary Horrox (Eds) Volume 12 pp. 509-510 (introduction) and 516 to 521 (PROME). York claimed the throne on the 10 October 1460. His written petition to parliament was read aloud on the 16 October 1460. It was the petition that the Lords spiritual and temporal were considering.

[3] Nicholas Cox and John Cox – The Crowland Chronicle Continuations (Richard III and Yorkist History Trust 1986) p111.

[4] James Gairdner- Three Fifteenth Century Chronicles (The Camden Society 1880) pp.170-71; the full title of the ‘Latin chronicle’ is ‘Compilatio de gestus Britonum et Anglorum’ (MS Arundel 5 College of Arms).

[5] PROME Vol 12, ibid: see also Margaret Lucille Kekewich et al (eds.) – The Politics of Fifteenth Century England: John Vale’s Book (Allan Sutton Publishing 1995) p 195 (ff.130v–134/111v–115. The title and claim of the crown by Richard duke of York in the 39th year of king Henry VI))

[6] PROME Vol 12, ibid; the lords spiritual and temporal were commanded to find “…the strongest objections to defend the king’s right and title and to defeat the title and claim of the said duke of York.”

[7] SB Chrimes – English Constitutional Ideas in the 15th Century (Cambridge 1936) pp.27-30. This paragraph is based on Professor Chrimes’ lucid and succinct explanation, which has stood the test of time.

[8] The lords were wrong; Henry also claimed the throne as conqueror.

[9] PROME Vol 12; ibid

[10] Unlike, the deposition of Edward II, and the deposition of Richard II, there was no case against Henry VI of willful incompetence or tyranny. In fact he seems to have been a good, almost saintly, man personally. A regency government could have adequately managed during his periodic spells of mental infirmity.

[11] PROME, Vol 12 p 524. It is quite clear from the Parliamentary Roll that York accepted the compromise to preserve the peace.

[12] John Watts – Polemic and Politics in the 1450’s; Margaret Lucille Kekewich et al (Eds) – The Politics of Fifteenth Century England: John Vale’s Book (Allan Sutton Publishing 1995) at page 34; see also P A Johnson – Duke Richard of York 1411-1460 (Oxford1991 corrected edition) pp. 212-219.

[13] Watts at p35.

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