Bishop Stillington’s Testimony: Was it Enough under Church Law?

Richard III remains one of the most controversial kings of England because of the manner in which he came to the throne:  not by battle or conquest, but by a legal claim that Edward IV’s marriage to Elizabeth Woodville was invalid, rendering their children ineligible to stand in the line of succession.  The grounds for the legal claim were enumerated in a petition brought forth to the Three Estates in June 1483, and were later entered into the January 1484 rolls of Parliament under the Act commonly referred to as Titulus Regius (title of the king). 

On close inspection, Titulus Regius asserted four reasons justifying the invalidation of Edward IV’s marriage to Woodville:

First, he did so without consulting his own royal council, government, or the peers of the realm (‘And here also we consider how that the said pretensed marriage betwixt the above-named King Edward and Elizabeth Grey was made of great presumption, without the knowing and assent of the lords of this land’). 

Second, it was achieved through witchcraft (‘And also by sorcery and witchcraft committed by the said Elizabeth and her mother Jaquette, Duchess of Bedford, as the common opinion of the people and the public voice and fame is through all this land … [which] shall be proved sufficiently in time and place convenient’).

Third, it was improper under church law (‘And here also we consider how that the said pretensed marriage was made prively [sic] and secretly, without edition of banns, in a private chamber, a profane place, and not openly in the face of the Church, after the law of God’s Church’). 

Finally, Edward IV had been previously married to Eleanor Talbot (‘And how also that at the time of contract of the same pretensed marriage, and before and long time after, the said King Edward was and stood married and trothplight to one Dame Eleanor Butler [née Talbot], daughter of the old earl of Shrewsbury, with whom the same King Edward had made a precontract of matrimony, long time before he made the said pretensed marriage with the said Elizabeth Grey in manner and form abovesaid’).

There is no controversy surrounding the first and third legal grounds asserted in Titulus Regius.  They stated known and uncontested facts.  Edward IV’s wedding to Woodville was conducted without any input from the king’s ministers, it was ‘clandestine’ in the eyes of the medieval Church, and it deviated from centuries of English royal practice.  A king’s marriage was a matter of great importance for the realm as it provided an opportunity for England to form a military and economic alliance with a foreign power, and it involved carefully managed negotiations between high-level diplomats over things like the future queen-consort’s dowry and how she would be financially supported. The announcement of the Woodville marriage in 1464 – presented months later as a fait accompli and denying the public the spectacle of a grand wedding – was not greeted with universal joy and acceptance.  It alienated many of the king’s most important supporters, the most notable being Richard Neville, the Earl of Warwick, aka the ‘Kingmaker’.  These facts are accepted by virtually all historians.

The most controversial aspects of Titulus Regius are the other two grounds – witchcraft and precontract.  This essay will not get into the witchcraft claim, but will focus instead on the alleged precontract between Edward IV and Eleanor Talbot.  In courts throughout fifteenth-century Continental Europe, the existence of a previous marriage contract would not have been referred to an ecclesiastical court, but would have been determined by their own civil or quasi-secular courts.  Yet England, despite rejecting many elements of medieval church doctrine on marriage irregularities and children’s illegitimacy, retained a feature of ancient Roman Christian custom.  Any claims of an irregular marriage were to be referred to the English ecclesiastical courts and adjudicated by their custom and legal procedure. 

The casual reader of history is probably familiar with the evidence produced in 1483.  It was given by Robert Stillington, Bishop of Bath and Wells, who reportedly came forth and gave eyewitness testimony that he had personally witnessed the exchange of marriage vows between Edward IV and Eleanor Talbot.  This occurred before the king took Elizabeth Woodville as his consort. 

No one has addressed whether Stillington’s testimony was sufficient to satisfy the burden of proof under church legal procedure.  Was it enough to stand up in court?  But, first, did Stillington really give this testimony?

There was Evidence of the Precontract

The primary source material concerning Stillington’s testimony comes from Philippe de Commynes (1447-1511), the relevant parts of whose Memoirs of the Reign of Louis XI were written sometime between 1489-1491.  Commynes wrote this work for Angelo Cato, bishop of Vienne, the same man who commissioned Domenico Mancini to travel to England during the fateful Spring of 1483.  The moralizing tone of the Memoirs suggests a wide audience, in the medieval ‘Mirror for Princes’ tradition.  Book 6 of the Memoirs contains the following narrative about events in England in 1483, beginning with Edward IV’s sudden death:

‘King Edward left a wife and two fine sons; one called the prince of Wales, the other the duke of York.  The duke of Gloucester, brother of the late King Edward, took control of the government for his nephew, the prince of Wales, who was about ten years old, and did homage to him as king.  He brought him to London, pretending that he was going to have him crowned, but really to get the other son out of sanctuary in London where he was with his mother, who was somewhat suspicious.  In the end, with the assistance of [Robert Stillington] the bishop of Bath, who had previously been King Edward’s Chancellor before being dismissed and imprisoned (although he still received his money), on his release the duke carried out the deed which you shall hear described in a moment.  This bishop revealed to the duke of Gloucester that King Edward, being very enamoured of a certain English lady, promised to marry her, provided that he could sleep with her first, and she consented.  The bishop said that he had married them when only he and they were present.  He was a courtier so he did not disclose this fact but 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.  She was a widow with two sons.’[1]

Portrait of Philippe de Commynes, whose ‘Memoirs’ state it was Bishop of Bath and Wells who came forward with information about Edward IV’s precontracted marriage to Eleanor Talbot

Later, Commynes circles back to these events, adding the detail that Edward IV died of ‘apoplexy’ (cerebral hemorrhage) after learning he’d been duped by Louis XI in past diplomatic exchanges, and giving the following narrative:

‘For after the death of King Edward, the duke of Gloucester had done homage to his nephew as his king and sovereign lord.  Then immediately he had committed this murder [sic] and, in the full English Parliament, he had the two daughters of Edward degraded and declared illegitimate on the grounds furnished by the bishop of Bath in England.  The bishop had previously enjoyed great credit with King Edward, who had then dismissed and imprisoned him before ransoming him for a sum of money.  The bishop said that King Edward had promised to marry an English lady (whom he named) because he was in love with her, in order to get his own way with her, and that he had made this promise in the bishop’s presence.  And having done so he slept with her; and he made the promise only to deceive her.  Nevertheless such games are very dangerous, as the consequences show.  I have known many courtiers who, if such good fortune had befallen them, would not have lost it for want of promises.  This wicked bishop kept thoughts of revenge in his heart for, perhaps, twenty years.  But it turned out unfortunately for him, for he had a son whom he loved a great deal whom King Richard wanted to endow with wide estates and to marry to one of those two daughters who had been degraded – the one who is the present queen of England and has beautiful children.  This son was serving in a warship by command of his master, King Richard.  He was captured on the coast of Normandy….’[2]

While there are factual errors in Commynes’ Memoirs, for instance Stillington never had a son as described above, this essay will assume that the part about the bishop giving evidence in 1483 is true because it is corroborated elsewhere.  As reported in the September 2018 issue of the Ricardian Bulletin, he was identified in a 1486 Year Book, when the lords and justices wished to question him because ‘the Bishop of B made the bill’. In 1533 and 1534, Eustace Chapuys, Imperial Ambassador to England, wrote to Emperor Charles V that he had been told by ‘many respectable people’ in England that Henry VIII ‘only claims [the crown] by his mother, who was declared by sentence of the Bishop of Bath a bastard, because Edward [IV] had espoused another wife before the mother of Elizabeth of York’.[3]

Professor Richard Helmholz, a medieval canon law expert at the University of Chicago School of Law, has already demonstrated that Titulus Regius stated a valid and recognized basis to bastardize Edward IV’s children under medieval canon law.  When two adults like Edward IV and Talbot voluntarily exchanged promises to marry the other, and then had sexual intercourse, they formed an enforceable and binding contract.  Woodville could not claim she was an innocent victim of deception, because her own marriage to the king violated church law requirements.  There was no rule preventing such a claim from being raised after the deaths of the putative spouses; indeed, this was frequently done in inheritance disputes in England.  In short, if what Stillington said were true, then Edward IV had committed bigamy and had polluted Woodville from ever becoming his legal wife.  In assessing Titulus Regius, Helmholz conceded that there was a singular, procedural defect in jurisdiction: it hadn’t been referred to a church court to determine the truth of the previous marriage contract.[4]

So how would Stillington’s testimony about the Talbot marriage have fared, if it had come before an ecclesiastical tribunal for adjudication in 1483 or 1484?  Would the court have taken it at face value and received it into evidence, or would there have been some additional process to ensure it was truthful?  Would it have been enough to prove the case, and shift the burden of proof to Woodville and her sons to show they weren’t bastards, or was other proof of the Talbot marriage required?  In order to answer these questions, it is necessary to review briefly the ecclesiastical court rules on witness testimony.

Qualified Witnesses in Marriage Litigation

The great medieval canonist, Raymond of Penyafort, set out in his Summa on Marriage that lawsuits to annul a marriage could not be maintained unless they were initiated by qualified accusers and supported with qualified witnesses.  In actions alleging a perpetual impediment such as described in Titulus Regius, the spouses themselves or any of their blood relatives could bring a claim; if no blood relatives were alive, a total stranger to the family could initiate it.[5]  These were all qualified to bear witness against the marriage, unless they lacked legal standing because they were heretics, perjurers, felons, excommunicated, of servile (villein) station, or juveniles.[6]

But there was an interesting wrinkle in this broad rule, which Penyafort took pains to address.  If a person had been able to raise the objection to the marriage at the time it was made, they would not be heard to testify later against it.  This would seem to preclude Stillington from testifying, since he was aware of the Talbot marriage yet did not raise any objection when Edward IV entered into his union with Woodville.  Penyafort expounds on this situation in the following way:


‘If, indeed, after a marriage is contracted an accuser appears, since he did not speak out in public when the bans [sic] were published by custom in the churches, we can well ask whether his accusation should be admitted.  On this we are led to make the following distinction: if at the time of the aforesaid announcement he who attacks the marriage was outside the diocese, or the announcement could not reach him for some other reason, so that, for example, laboring under a fever from serious illness his sanity deserted him, or he was of such tender years … or was impeded by some other lawful cause, his accusation ought to be heard.’[7]

It is historical fact that the Woodville marriage was not announced by banns or official government proclamation. It had been conducted clandestinely in a private chapel or house, and was kept secret from Edward IV’s own government for several months.  Without knowing exactly where and when it happened, no one can say whether Stillington was in the same diocese, or could have remotely raised an objection. It seems extremely unlikely. This interesting wrinkle, in other words, would not have applied to the facts of the case, and would not have supported an objection to Stillington’s testimony.

Trustworthy Witnesses – Fidedignus and Fidedigni

When a witness gave testimony, their character and manner of testifying would be measured against the theological concept of a ‘trustworthy man’.  The Ordinary Gloss of Pope Gregory IX’s Decretals described trustworthy men as those of good reputation, held in high regard, and older in age, citing several texts referring to the wisdom of age.[8]  This can also be seen in the canonical use of the terms fidedignus or fidedigni (literally, ‘faith-worthy man’ or ‘faith-worthy men’) in describing the type of people who were summoned to testify in church inquisitions, visitations, and in settling the estates of the deceased. 

Professor Ian Forrest of Oxford’s Oriel College surveyed the evolution of the trustworthy man concept, including hundreds of diocesan court papers from medieval England.  He concluded that the following characteristics enhanced a witness’s credibility as a fidedignus in the eyes of the medieval church:[9]

  • High status, power, and position
  • Consistency in their testimony
  • Proximity to events in question
  • Having better knowledge than others (e.g., being an eyewitness)
  • Manner of speech
  • Objectivity and lack of bias towards or against one party
  • Not reluctant to give information
  • Expertise in any technical, legal, or fact issue at hand
  • Current secular or ecclesiastical officeholder in good standing
  • Landholder who is in good stead with paying their taxes
  • Male gender

While Professor Forrest was primarily looking at the process of church inquests and visitations, what he has described is equally applicable – and is indeed a common theme – in how witnesses were assessed in run-of-the-mill medieval marriage disputes.  What little we know about Stillington indicates that he received a Doctorate of Civil Law from Oxford before 1443, and thus was a trained canonist, having demonstrated proficiency in Roman civil law and mastery of canon law.[10] He rose quickly in the service of Bishop Beckington of Bath and Wells, received diplomatic assignments from Henry VI, and had been recommended to his benefices by a handful of English bishops. He was Edward IV’s Keeper of the Privy Seal when he personally witnessed the vows exchanged between Talbot and the king. At the time, he was an Archdeacon of Taunton but was later promoted in Edward IV’s government, serving as his Chancellor from 1467 to 1473, and becoming the Bishop of Bath and Wells in 1466, a bishopric he held continuously until his death. As far as we know, he had no personal animosity against Woodville or her children, and had nothing to gain by testifying in 1483.[11] 

We do know that in 1478, around the time of George of Clarence’s treason trial and execution, Stillington had been arrested and briefly held in custody by Edward IV.  For what, is still a matter of intense speculation.  No charges were brought against him. He was released after paying a fine, pardoned without loss of income or status, and would be employed as a royal ambassador in 1479.  There is some suggestion that his health was failing, or that his advancing age (he was born circa 1410) kept him from further government service.  There is also some suggestion, by Commynes, that he was resentful of the treatment he had received in 1478 at the hands of Edward IV, and possibly even expected to receive some form of reward for the evidence he gave in 1483.  These would all be areas for a church tribunal to interrogate.

Probatio Plena – the Two Witness Rule

While Stillington’s testimony would have satisfied the elements of proof needed to establish the Talbot marriage (exchange of vows, consummation), one last hurdle existed.  Following Roman civil law, a case relying solely on oral testimony had to be proven with at least two witnesses whose accounts were consistent with each other.  The ‘two-witness rule’ had its origins in pre-Christian Rome as full proof (‘probatio plena’) and was absorbed into church doctrine based on certain passages in the Bible.  Unsurprisingly, church fathers encountered problems with the rule’s functionality in litigation involving clandestine marriages and illicit sexual behavior. There was nothing to prevent a scallywag from seducing his paramour with a private, unwitnessed exchange of words creating a marital contract, then abandoning her for a subsequent partner in a public ceremony witnessed by dozens. Without two witnesses to testify to the first marriage, the courts could not enforce it, leaving the couple to the second marriage condemned to live in a perpetual state of bigamy.

‘When a witness in a 1291 marriage suit claimed to have been an eyewitness to a man and a woman having sex (hoc vidit oculate fide), he was making a claim that was meant to boost the significance of his testimony.  But on his own he could not meet the canonical standard of proof, which demanded two witnesses who had seen or heard the events at issue. In cases hinging on sexual activity this was an understandably rare occurrence.  For some in the church facing the huge challenge of separating the clergy from their wives and concubines in the wake of twelfth-century reform, the standard of proof was unacceptably high.  In the succeeding generations canon lawyers began to assert new doctrines of proof that made it easier for the authorities to convict offenders.’[12]

Exceptions to the two-witness rule were carved out.  In his highly influential encyclopedia of procedural canon law, William Durandis (1231-1296) identified more than two dozen scenarios where one witness would suffice as probatio plena.  The word of the Pope or other high clergyman, of course, could alone prove a fact.[13]  A father’s testimony could alone prove that his son had been coerced into becoming a monk.  ‘Half-full’ proof such as that provided by one unimpeachable witness could be converted to full proof by other indicia, such as circumstantial evidence or solid evidence of publica fama.[14]  Publica fama or public fame was the report of many people, what Ian Forrest described as the ‘suspicion amongst good and serious men of the neighbourhood, and it was thought sufficient to force a suspect to answer before a judge’.[15]  In support of this notion, Helmholz quotes from one of Pope Gregory IX’s Decretals which went so far as to say that ‘if the crime is so public that it may rightly be called notorious, in that case neither witness nor accuser is necessary’.  Titulus Regius implicitly alludes to this notion when it says the Woodville marriage was invalid, ‘as the common opinion of the people and the public voice and fame is throughout all this land.’[16]

Conclusions

Based on this reading of the canon law, it seems evident that Stillington would have been allowed to give evidence about his personal knowledge of the Talbot marriage, even though he did not object after hearing about the king’s clandestine marriage to Woodville.  His testimony would have presented compelling evidence, since he was an eyewitness to the exchange of promises and was aware of their subsequent sexual consummation.  As a bishop and Oxford-trained canonist, he would have been granted the standing of a fidedignus, but his testimony could have been impeached if it were shown, as implied by Commynes, that he harbored a personal grudge against Edward IV for his arrest in 1478, or that he had done something bringing his character and truthfulness into question.  But as the historical record currently stands, there is no factual evidence to support impeachment.

The more nagging question is whether Stillington’s testimony could have been enough to prove the Talbot contract, or whether it needed to be supported with another witness or evidence of public notoriety.  In their exhaustive surveys of medieval church litigation, Professors Richard Helmholz, Charles Donahue, and Ian Forrest discovered many cases when an English church court ruled that a precontract had been proven with only one witness to it.  But none of those cases involved members of the royal blood, or dictated the succession to the English crown.

It would be most interesting to compare how other medieval aristocrats in Western Europe marshaled evidence to dissolve or challenge their marriages.  One suspects that some end-run around canon law might have been tolerated if the political aim was popular, or if a full-blown trial of the claim would have mired a government in protracted and divisive litigation.  This was Professor Helmholz’s conclusion too.  Eleanor of Aquitaine and King John both managed to annul their first marriages by claiming somewhat disingenuously that an impediment of consanguinity existed with their spouses, a ‘discovery’ they made, respectively, 15 and 10 years after solemnization of their original marriage vows.  Henry VIII tried to annul his marriages to Anne Boleyn, Anne of Cleves, and Catherine Howard based on the existence of previous marriage contracts, but he only succeeded in proving one of them because the woman in question (Cleves) confessed to it.[17] 

Nevertheless, Richard III did have a reputation for being a keen observer of legal procedure, and he must have been aware of the long-standing church doctrine on probatio plena.  The words of Titulus Regius itself seem to admit this defect with Stillington’s testimony when it says the invalidity of Edward IV’s marriage to Woodville was a matter of common opinion.  Presumably, the author of that petition, and probably Richard III himself, would have been prepared to substantiate that allegation if required by church authorities.

Author’s Note:  I would like to thank my fellow Loon for pointing out Henry VIII’s trials and travails in annulling his marriages, and referring me to H.A. Kelly’s article and text cited in the Endnotes. She wrote a very thought-provoking comparison between Henry VIII’s and Richard III’s precontract claims, which can be found at https://ricardianloons.wordpress.com/2016/03/06/debunking-the-myths-how-easy-is-it-to-fake-a-precontract/

(An earlier version of this essay was published courtesy of the Ricardian Bulletin, June 2021, copyright holders Susan Troxell and the Richard III Society, CLG)


[1] M. Jones (trans. & ed.), Philippe de Commynes Memoirs, The Reign of Louis XI 1461-83, Penguin Books, 1972, pp. 353-54.

[2] Ibid, pp. 396-397.

[3] D. Johnson, P. Langley, S. Pendlington, ‘More than Just a Canard: The Evidence for the Precontract,’ Ricardian Bulletin, September 2018, pp. 51-52.

[4] R.H. Helmholz, ‘Bastardy Litigation in Medieval England,’ American Journal of Legal History, Vol. XIII (1969), pp. 360-383.  R.H. Helmholz, ‘The Sons of Edward IV: A Canonical Assessment of the Claim that they were Illegitimate,’ in Richard III Loyalty, Lordship and Law, P.W. Hammond (ed.), 1986, pp. 106-120.

[5] P. Payer (trans.), Raymond of Penyafort, Summa on Marriage, Pontifical Institute of Medieval Studies, 2005, Title XX, p 75-76.

[6] R. H. Helmholz, Marriage Litigation in Medieval England, Cambridge Uni Press, 1974, pp. 154-164.

[7] Summa on Marriage, Title XX, para. 2, p. 76.

[8] Ian Forrest, Trustworthy Men:  How Inequality and Faith Made the Medieval Church, Princeton University Press, 2018, pp. 108-109.

[9] Trustworthy Men, pp. 91-119.

[10] Kelly, ‘The Case Against Edward IV’s Marriage and Offspring’, The Ricardian, September 1998, p. 326-335.

[11] Bryan Dunleavy, ‘Will the Real Bishop Stillington Please Stand Up?’, Ricardian Bulletin, September 2020, pp. 54-57.  Michael Hicks, ‘Robert Stillington d. 1491’, in Oxford Dictionary of National Biography.

[12] Trustworthy Men, pp. 252-253, citing Norma Adams and Charles Donahue, Jr. (eds.), Select Cases from the Ecclesiastical Courts of the Province of Canterbury c. 1200-1301, Selden Society, 1981, p. 357.

[13] R. H. Helmholz, ‘The Trial of Thomas More and the Law of Nature,’ http://www.thomasmorestudies.org/tmstudies/Helmholz2008.pdf (7/3/08) pp 9-10, footnote 31 (accessed 12/1/2019).  Professor Charles Donahue at Harvard University describes the case of Taillor and Smerles versus Lovechild and Taillor, from 1380, in which a woman proved her marriage using the testimony of only one witness.  She prevailed even though her estranged husband called 4 witnesses to testify that she was actually married to someone else. It is important to note that the prevailing woman used the testimony of a chaplain who had been present when the parties exchanged words of a de presenti marriage contract.  Clearly, to the court, the testimony of a single churchman was better than 4 non-clerics.  Charles Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages, Cambridge University Press, 2007, pp. 274-5.

[14] Law, Marriage, and Society, p 164.

[15] Trustworthy Men, pp. 251-259, 254. 

[16] Helmholz, The Sons of Edward IV: A Canonical Assessment, pp. 116-117.

[17] H.A. Kelly, The Matrimonial Trials of Henry VIII, Wipf and Stock; Reprint edition 2004, pp. 252-258 discusses the church court procedure used to try to annul the marriage to Anne Boleyn.

The Trial That Should Have Happened in 1483

Putting aside the mystery of what ultimately happened to Edward IV’s two sons, one enduring difficulty for a student of history is whether Richard III used the proper legal procedure in having them declared illegitimate because of their father’s precontracted marriage to Eleanor Talbot.  The most (and only) significant defect appears to be the failure to refer the issue to a church court for determination.[1]  But it seems no one has fleshed out how an ecclesiastical tribunal would have litigated such an extraordinary and unprecedented matter, let alone identified which church court would have had authority to hear it.

As a retired litigator of 20 years, I undertook the challenge of researching medieval English church court procedures and precedent cases to answer four questions: Which church court would have decided the precontract issue? How would it have conducted the litigation? What evidence would it have heard? How conclusive would its decision have been?  They seemed like simple questions, but they were not. Along the way, I learned not only about the unique relationship of English church and state when it came to addressing marriage and inheritance matters, but also about a thicket of procedural issues that an ecclesiastical tribunal would have presented in 1483, the sum of which may help explain why it wasn’t referred there in the first place.

A Claim that Involved Both Canon and Secular Law

The Crowland Continuator wrote that Richard III’s title to the throne was first put forward on 26 June 1483 when he claimed for himself the government of the kingdom and ‘thrust himself’ into the marble chair at Westminster Hall.  The ‘pretext’ for his ‘intrusion’ was put forward by means of a supplication [petition] contained in a ‘certain parchment roll’ that Edward IV’s sons were bastards and incapable of succession, because their father had been precontracted to marry Lady Eleanor Butler [Talbot] before he married Elizabeth Woodville.  The children of George of Clarence were also excluded from succession because of their father’s attainder.

Commynes-recueil-Arras

Philippe de Commynes

The Crowland Continuator gives us no other details about what debate, discussion, or proof was produced to support the allegation, except to suggest that the petition originated in the North and was written by someone in London.[2]  Dominic Mancini, who was living in London at the time, reported that certain ‘corrupted preachers of the divine word’ gave sermons about the illegitimacy of King Edward’s children, and that the duke of Buckingham supported those allegations by declaring the king had been precontracted to a foreign princess.[3]  Philippe de Commynes wrote in his ‘Memoirs’ that it was Robert Stillington, bishop of Bath and Wells, who came forward and gave evidence from his personal knowledge about the precontract to Lady Eleanor and its consummation.[4]  Ultimately, the Act of Succession known as Titulus Regius was enrolled in January 1484 during Richard III’s only parliament.[5]

Church courts were quite familiar with marital precontract claims and the resulting disinheritance of children, a scenario that seems to have arisen in pre-modern England with surprising regularity even in the lower social classes.  Professor R. H. Helmholz detailed the frequency of such claims in his book Marriage Litigation in Medieval England and determined that they out-numbered straightforward divorce cases.  The distant date of King Edward’s alleged precontract to Eleanor Talbot, and their inability to testify, although sounding suspicious or unfair to our modern sensibilities, were of no relevance.  There were no applicable statutes of limitations, and a precontract claim could be raised after the deaths of the putative spouses.  It was not unknown for someone to wait 20, 30 or even 50 years before enforcing a precontract or making a claim that a particular marriage was invalid. ‘This meant that established marriages could be upset by the stalest of [pre-]contracts.’[6]  Claims that sought to declare a child illegitimate because of his parents’ invalid marriage were also more commonplace than we often understand, an artifact of the complex system of marriage and consanguinity rules, and the way that marriages could be formed clandestinely with a simple statement of present intent (both parties saying ‘I agree to marry you’ was sufficient in church law).

church court

Church court

While church courts were endowed with the jurisdiction to determine whether a precontract existed or not, or whether someone’s children were illegitimate as a result, they had absolutely no power to determine who inherited their parents’ estate even if – and especially if — he was the potential king of England.  By the fifteenth century, English legal practice was especially clear on this concept:  the church courts only had jurisdiction to adjudicate who was a legitimate child from a legitimate marriage.  Once it determined that the child was born outside a legitimate marriage, then it was left entirely up to the secular arm to determine what he or she would inherit from their parents. This derived from a primitive notion of the separation of church and state, and the idea that the rights of inheritance derived exclusively from feudal law.  The Statute of Merton clearly made this point:  no bastard child could ever be an heir to his father’s estate as a matter of English feudal law.[7]  Therefore, it must be understood that even if the issue of the legitimacy of Edward IV’s children had ever been referred to a church court for determination, it had no power to say who should inherit the crown.  That would always be for secular English law to determine.

Which Ecclesiastical Venue?

The first conundrum in 1483 would have been what court or tribunal to refer the matter to. Each bishop had a ‘consistory court’ for the purpose of hearing cases involving marriage and bastardy, and other matters exclusively within church law jurisdiction.  Because of the volume of litigation, however, it was impossible for a bishop to attend to this function personally, therefore he appointed an ‘official’ or ‘commissary general’ to act as his representative in adjudicating disputes.  In many dioceses, the dean, archdeacon, or chapter would also have their own courts.  However, in matters involving elite personages or sensitive political issues, it was not uncommon for the bishop himself to mediate the dispute, as we can see from the bishop of Norwich’s personal involvement in trying to dissolve the scandalous marriage between Margery Paston and Richard Calle in 1469.

The consistory courts were staffed with judges, lawyers (‘proctors’) and barristers (‘advocates’), examiners to conduct witness interrogation, scribes, archivists (‘registrars’), and summoners (‘apparitors’ or ‘bedels’).  No one was required to have a law degree, but most had some formal education in canon or civil law, especially the judges.  Quite unlike common law English trials, there were no juries and no examination of live witnesses in open court.  Instead, judges based their verdicts solely on the review of offered documents and written depositions which contained the answers given by witnesses to questions (‘interrogatories’) put to them by the examiners.  Appeals could be taken either to the archbishop of Canterbury or of York, depending upon which Province the case had been filed in, or directly to the Pope via the Roman Curia.  The archbishop of Canterbury’s appellate court was called the Court of Arches, located at St Mary-le-Bow Church in London, and was considered the premier ecclesiastical court in England having both original and appellate jurisdiction.

Court_of_King's_Bench

Court of the Common Pleas

Notwithstanding this church court infrastructure, it seems highly unlikely that the 1483 allegation of precontract would have been referred to a bishop’s consistory court or even to the Court of Arches. The matter touched directly on the royal family and on whom would become the next king of England.  In looking for past precedents, the closest analogue is the ecclesiastical trial of Eleanor Cobham, wife of Humphrey Duke of Gloucester. Cobham was married to the uncle and heir-presumptive to Henry VI, and was in line to be queen-consort if the king died without children.  In the summer of 1441, Cobham was implicated by members of her household in using magic to predict the death of the king.  An indictment was brought forward in the King’s Bench against the household servants, and they were charged with sorcery, felony, and treason.  Cobham was named as an accessory.  While the secular courts had jurisdiction over charges of treason and felony, the church courts had jurisdiction over matters of heresy and witchcraft.

Rather than refer the matter to a bishop’s consistory court, the king’s council selected a group of prelates to act as an ecclesiastical tribunal to determine the truth of the allegations against Cobham and her punishment.  No doubt this was done because of the shocking political implications of accusing the heir-presumptive’s wife of treasonable sorcery. The panel included the archbishops of Canterbury and York, the cardinal-bishop of Winchester, the bishop of Bath and Wells, the bishop of Lincoln, the bishop of London, and the bishop of Norwich.  Most of these men were also part of the king’s secular government.  Bishop Stafford of Bath and Wells was the king’s Chancellor.  Cardinal Beaufort of Winchester, Archbishop Kemp of York, and Bishop Alnwick of Lincoln all currently sat on the royal council.  Beaufort and Kemp, in particular, were known antagonists and opponents of Gloucester and his wife, and many saw the panel’s work as nothing more than a thinly-veiled attempt to destroy them and their political faction.[8]

Similarly, the political dimensions in 1483 were far too enormous to refer the matter of the princes’ illegitimacy to a single prelate or his court.  (And what bishop would have wanted to have sole responsibility to decide such an inflammatory issue?)  Therefore, if Cobham’s case is any precedent, it would seem that the only appropriate way to do so would have been for the royal council, of which the Lord Protector was the chief, to summon a group of prelates and men learned in canon law to hear it.  And, just like the Cobham case, the membership on that panel could be perceived as having partisan agendas and rendering a biased decision.

How Would a Church Court Conduct the Litigation?

Church court procedure was usually divided into three stages:  an opening hearing, the taking of evidence, and the reading of a judgment.  The first stage required the party asserting the allegation of precontract to appear in person or by a proctor, in order to recite the specifics of the ‘citation’ or claim.  The second stage involved the witnesses being identified by name and sworn in, and then taken outside of court to be interrogated separately and in private according to questions prepared by the parties and the judge.  The testimony of each witness would be reduced to a written deposition, and then published (read aloud) on a date set by the judge.  At that time, witnesses could be challenged or ‘exceptions’ made to their character or testimony.  The last stage was for the judge to read all the depositions and review any documentary evidence, and then arrive at a decision.  The parties could argue through their advocates that their side was the correct one, and even submit legal briefs to support their case.  The judge was given wide latitude to arrive at whatever conclusion he deemed compliant with substantive canon law.  He was not required to explain the reasons supporting his decision, and could proceed to a separate hearing on what punishment was appropriate under church doctrine.  From the first hearing to the final judgment, the average lifespan of a typical marriage case was around 5-7 months.[9]

Would an ecclesiastical tribunal have followed this general procedure in 1483, and if so, would we have had the benefit of written depositions from Stillington or any other witnesses who would have testified about the precontract?  To the latter question, the short answer is probably no.  There exist no witness depositions or transcripts from Eleanor Cobham’s ecclesiastical trial, only the indictment filed against her servants in the King’s Bench records (what we do know about the Cobham trial comes from The Brut, and other London chronicles, not from official court or church records).  Nevertheless, her case was generally divided into these three stages. After fleeing to Westminster Abbey for sanctuary, Cobham was cited to appear at St Stephen’s Chapel where she was examined on several points of felony and treason, which she strenuously denied, and was allowed to return to sanctuary.  The next day, she was summoned to hear the incriminating testimony of a witness against her; she confessed to some of the charges and was transferred to Leeds Castle in Kent.  A secular criminal law investigation was conducted into the three household servants, and it was determined that they – and Cobham — had celebrated a mass using elements of necromancy and sorcery in order to predict the death of Henry VI, an act of treason.

Cobham was next hauled before the ecclesiastical tribunal at St Stephen’s Chapel four months later, for the purpose of sentencing.  Archbishop Chichele of Canterbury begged illness from this event, and therefore it was Adam Moleyns, clerk to the royal council, who read the articles of sorcery, necromancy, and treason to her.  Cobham again vociferously denied the charges but admitted to using potions to conceive a child with Humphrey.  Several days before issuing a sentence, the ecclesiastical panel forcibly divorced Cobham from her husband.  What due process was used to work the divorce is not recorded.  Certainly, it was not initiated by Humphrey, and under canon law there were no grounds for divorce if one of the spouses fell into heresy.[10]  Cobham’s sentencing hearing came a few days later, and she was given the punishment of walking penitent at three public market days.  Thenceforth, she never left the king’s strict custody and is believed to have died at Beaumaris, Wales, in 1452, five years after Humphrey.[11]

the_penance_of_eleanor_duchess_of_gloucester

The Penance of Eleanor Cobham, by Edwin Austin Abbey (1900)

While not a perfect analogue, the Cobham case is instructive as to how a hypothetical ecclesiastical tribunal would have litigated the precontract issue in 1483.  It would have had an initial hearing when the charge was announced, then it would have received witness testimony, and then it would have had announced its decision after review of the evidence. Elizabeth Woodville’s presence would not have been required but she could have had a proctor there to represent her interests.[12]  Of course, there would have been no jury, and none of the safeguards that juries ostensibly brought to secular litigation.  Those sitting on the tribunal would not have heard live testimony nor observed the demeanor of those testifying; they would have relied on recorded depositions.  There would have been no requirement for a reasoned opinion describing the rationale for the decision.  And there would have been no sentencing hearings, since the only role for this tribunal would have been to answer one question about the precontract’s existence.  The matter would then be returned to the secular courts, including Parliament, for further consideration.

What type of evidence would have been received?

One was required to produce documentary evidence and/or witness testimony to substantiate a claim in the church courts.  Documentary evidence was almost unheard of in marriage cases, and even it if had been produced, forgery was so common that it was often looked at as being less weighty than oral testimony.[13]  If resting solely on witness testimony, then the case could be proven with only two people who were able to testify from direct observation or other reliable information.  The ‘two-witness rule’ was formulated in pre-Christian classical Rome as full proof (‘probatio plena’) and was absorbed into church doctrine based on certain passages in the Bible.  Hearsay was not excluded.  In a 1443 case from the Rochester diocese, for example, the church court allowed the testimony of John North who said that William Gore told him of seeing a marriage contracted between Alice Sanders and John Resoun.[14]  Proof of long cohabitation and children being born to a couple were not relevant except to prove sexual intercourse.  Beyond that, what sentimental force it had on the judge is hard to say, certainly less than it would today. The validity of a marriage depended on the existence of a marriage contract, not on the birth of children. What was more relevant to church courts were the relative social statuses of the parties involved, as can be seen in a 1419 case where a woman lost her precontract case because the putative husband introduced witnesses to show that he was of a far superior social station.[15]

Since marriage cases often turned exclusively on the testimony of two people, we find paradoxes and difficulties, and cases involving collusion and fraud.  Helmholz recounts a case from York where Alice Palmer had married Geoffrey Brown and lived with him for four years.  The union was not a happy one as Geoffrey physically abused Alice.  As a result, Alice and her father found another young man, Ralph Fuler, and gave him gifts (i.e. bribes) so that he would say that he had contracted marriage with the said Alice before any contract and solemnization of marriage had occurred between Alice and Geoffrey. ‘This stratagem worked. Alice and Geoffrey were divorced. The whole matter came to light only some years later, after Geoffrey had in fact married another girl.  Alice then sued to annul the previous judgment and get him back.’[16]  Helmholz also recounts coming across a few isolated cases where an affirmative judgment was based on the testimony of a lone witness rather than the two required.[17]

For this reason, John Fortescue wrote about the inanity and corruption of the ‘two-witness rule’, saying that it was clearly inferior to the English common law system which required a jury of 12 good men to attest to the truth of the facts presented by the prosecution.  To prove his point, Fortescue used the example of someone entering into a valid clandestine marriage, walking away from that, and then marrying someone else in a public ceremony to which two witnesses could testify in a court, and none to the clandestine marriage.  The Roman law requiring two witnesses in this situation, according to Fortescue, would condemn the person to live in perpetual adultery with the second wife.[18]  But two witnesses were all that was required in the ecclesiastical courts, and that is all that would have been required in 1483 to prove the precontract, and thus the princes’ illegitimacy.

court in session

Medieval court in session

If Phillipe de Commynes was accurate, then we already know the identity of one witness:  Robert Stillington, bishop of Bath and Wells, and former chancellor to Edward IV.  And this is significant because the ‘two-witness rule’ had numerous exceptions.  William Durantis, the medieval procedural encyclopedist, managed to elucidate thirty of them.  Most were created for situations in which it would be expected and natural for only one witness to observe an event (a father, for instance, testifying that his son had been coerced into becoming a monk was sufficient to prove that fact).  Other exceptions rested on the quality of the witness.  The testimony or word of the Pope or other high clergyman, for instance, could alone prove a fact in the church courts.[19]  In a strict sense, the testimony of a sitting bishop and former Chancellor, coming from a high clergyman about a clandestine marriage that he personally observed, could have fallen into one of these exceptions to the rule and it alone might have been deemed full proof of the precontract.

Aside from the requirement of two witnesses and its exceptions, the church courts applied a somewhat mechanical system for sorting out qualified from unqualified, and believable from unbelievable, testimony.  The parties themselves could not testify as they were deemed partial to their side of the case.  For the same reason, the parties’ servants, friends, and relatives, were deemed unqualified to testify.  Heretics and believers who were in the state of mortal sin could not testify at all.  Rank in the nobility or clergy merited a witness superior credit, rich man prevailed over poor, Christian over Jew.[20]  Had Bishop Stillington, or another high clergyman, testified in front of an ecclesiastical tribunal in 1483, then his testimony would have been accorded the highest evidentiary weight possible under the rubrics set out by canon law.

But what about the duke of Buckingham and the preachers who were making public statements in 1483 about the princes’ illegitimacy? Could they have testified in a canon court?  The answer seems to be in the affirmative.  As shown above, the fact that none were present at the time of the precontract would not necessarily bar their testimony since there was no strict rule against hearsay.  The problem rests in what they were saying, which suggested different grounds for the princes’ illegitimacy (the duke saying that Edward IV was precontracted to a foreign princess, and the preachers saying it was because Edward IV himself was a bastard).  Under canon law, full proof required two witnesses providing the same basic facts, not two different scenarios for invalidating a marriage.

There is also Mancini’s insinuation that the preachers were ‘corrupt’ in some manner, and even a suggestion by Commynes that Stillington had some sort of personal baggage when he was briefly sent to the Tower in 1478.  Canon law permitted any witness, even a clergyman, to be impugned and ignored if they were shown to be of bad character.  That required proof, too, not mere suspicion, and there was no mechanism to cross-examine witnesses directly.  One had to produce evidence, usually in the form of another witness, to show that someone was unqualified.  According to Professor Charles Donahue, English church courts were often more lax about this than they should have been.  He found several cases in which the court proceeded to sentencing without regard to the fact that the witnesses on the winning side were objectionable.  In a precontract case, Cecilia Wright c. John Birkys, Cecilia successfully petitioned for a divorce of John from his current wife, Joanna, on the ground that John had previously promised to marry Cecilia and had had intercourse with her.  Cecilia produced only two witnesses, one of servile condition, the other Cecilia’s sister and the wife of the other witness.  ‘Probably neither witness was admissible under the academic law.  Yet despite uncontradicted testimony as to the status and the witness’s admission of the relationship, Cecilia prevailed in two courts.’[21]

Such cases suggested to Professor Donahue that in English church court practice, there was no automatic bar to the consideration of anyone’s testimony.  Indeed, he concluded ‘there is no case of which I am aware in which a party lost because some or all of the witnesses necessary to make up his case proved to be incapable of testifying under canon law’.[22]  It has led modern historians to say that the church courts were often deciding marriage cases based on ‘evidence that was seldom sufficiently verified’ and that ‘some judges appear to have bent the law to fit their normal, and sensible, prejudices’.[23]

How conclusive would the decision have been?

Once the ecclesiastical tribunal had decided the issue of the precontract, the matter would be returned to the secular courts to determine whether the children could inherit under English law.  A certificate of legitimacy or bastardy coming from the Church could not be challenged in any subsequent lawsuit, even if it involved different parties, facts, or issues.[24]  This was the general rule, although Helmholz found cases where English secular judges disobeyed the church court’s decision when it would have worked an inequity or a violation of English law.  They were particularly sensitive to church intrusion into matters involving inheritance.  In a case from 1337, for example, it was pleaded that the plaintiff was a bastard by reason of birth before his parents’ marriage.  The plaintiff countered by showing the record of a bishop’s certificate from a previous decision testifying to his legitimacy.  The court, however, refused to accept it as conclusive.  As Judge Shareshull said, ‘I cannot have this answer because with it a man would gain inheritance against the law of the land.’[25]  Shareshull would later become Edward III’s chief justice in 1350.

st mary le bow

St-Mary-le-Bow Church, London, designed by Christopher Wren.

Less certain is whether any appeal could have been made to the Pope.  Since the matter ultimately concerned inheritance law and feudal succession to the English throne, it seems unlikely.  Certainly, Elizabeth Woodville and her allies did not take up any appeal to the Roman Curia after her sons by Edward IV were declared illegitimate by the three estates.  Such an effort, in any case, might have arguably violated the Statutes of Praeminure enacted during the reigns of Edward III and Richard II.  They forbade Englishmen and women to pursue in Rome or in the ecclesiastical courts any matter that belonged properly before the king’s courts, including ‘any other things whatsoever which touch the king, against him, his crown and his regality, or his realm’. There were strict penalties for doing so.[26]

Conclusion

The decision not to refer the issue of the princes’ alleged bastardy to a church court will always remain one of the criticisms of how Richard III came to the throne.  As shown above, there were serious procedural dilemmas, such as how to properly constitute an authoritative ecclesiastical tribunal and how such a tribunal would have managed the hearing of a politically divisive claim.  Even more difficult to predict is whether the church tribunal would have accepted a lowered burden of proof of just one eyewitness’s testimony to the precontract or would have sought out additional witnesses.  In the final analysis, these matters of procedure do not dictate the outcome.  As long as there was credible proof of the precontract, strict church law would have bastardized the offspring of the bigamous parents.  English secular law did not soften this result, and indeed, militated against such children from inheriting their father’s estate.  The ultimate question is whether the English public would have found an ecclesiastical tribunal to satisfy their notions of due process, or whether they would have seen it merely as a handmaiden to a political coup d’etat.  It seems safe to say that we’d still be debating the merits and propriety of Richard III’s accession to the crown regardless of the juridical mechanisms employed, even if those mechanisms followed the precise letter of canon law.

Related Posts

“Debunking The Myths – How Easy Is It To Fake A Precontract?”

Notes

[1] R. H. Helmholz, “Bastardy Litigation in Medieval England,” American Journal of Legal History, Vol. XIII (1969), pp. 360-383 and R. H. Helmholz, “The Sons of Edward IV: A Canonical Assessment of the Claim that they were Illegitimate,” Richard III Loyalty, Lordship and Law, P.W. Hammond (ed.) (1986).

[2] Nicholas Pronay & John Cox (eds.), The Crowland Chronicle Continuations 1459-1486 (Allan Sutton, London, 1986), pp. 158-161.

[3] C. A. J. Armstrong (trans.), The Usurpation of Richard the Third by Dominicus Mancinus (Oxford Univ. Press, 1936), pp. 116-121.

[4] ‘In the end, with the assistance of the bishop of Bath, who had previously been King Edward’s Chancellor before being dismissed and imprisoned (although he still received his money), on his release the duke carried out the deed which you shall hear described in a moment.  This bishop revealed to the duke of Gloucester that King Edward, being very enamoured of a certain English lady, promised to marry her, provided that he could sleep with her first, and she consented.  The bishop said that he had married them when only he and they were present.  He was a courtier so he did not disclose this fact but 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.  She was a widow with two sons.’  Michael Jones (trans. & ed.), Philippe de Commynes “Memoirs”, 1461-83 (Penguin Books, 1972), pp. 353-54.

[5] Rosemary Horrox (ed.), The Parliament Rolls of Medieval England 1275-1504, Vol. XV Richard III 1484-85 (Boydell, London, 2005), pp. 13-18.

[6] There was no preference by canon law courts favoring the ‘settled’ or ‘long-standing’ marriage over the mere contract by words. R. H. Helmholz, Marriage Litigation in Medieval England (Cambridge Univ. Press, 1974), pp. 57-59, 62-64.

[7] Helmholz, Bastardy Litigation, pp. 381-383. The Statute of Merton was passed during Henry III’s reign in 1235, and provided in part, that ‘He is a bastard that is born before the marriage of his parents’.  The parents’ subsequent marriage did not alter the status of bastardy.

[8] Ralph A. Griffiths, “The Trial of Eleanor Cobham: An Episode in the Fall of Duke Humphrey of Gloucester”, King and Country: England and Wales in the Fifteenth Century (Hambledon, London, 1991), pp. 233-252.

[9] Helmholz, Marriage Litigation, pp.  124-140, 113-115.

[10] Pierre Payer (trans.), Raymond of Penyafort’s Summa on Marriage (Pontifical Institute of Mediaeval Studies, 2005), pp. 53, 80-81.  In Title X, Dissimilar Religion, Penyafort states that when believers contract marriage between themselves and afterwards one falls into heresy or the error of unbelief, the one who is abandoned cannot remarry.

[11] Griffiths, Eleanor Cobham’s trial.

[12]Brian Woodcock, Medieval Ecclesiastical Courts in the Diocese of Canterbury (London, 1952), pp. 83-85.

[13]James A. Brundage, Medieval Canon Law (Longmans, London, 1995), pp. 132-133.

[14] Helmholz, Marriage Litigation, pp. 131-132.

[15] Helmholz, Marriage Litigation, pp. 132-133.

[16] Helmholz, Marriage Litigation, p. 162.

[17] Helmholz, Marriage Litigation, pp. 228-232.

[18] Shelly Lockwood (ed.), Sir John Fortescue: On the Laws and Governance of England (Cambridge Univ Press, 1997).

[19] R. H. Helmholz, “The Trial of Thomas More and the Law of Nature”, http://www.thomasmorestudies.org/ tmstudies/Helmholz2008.pdf [7/3/08], pp 9-10, FN 31.

[20] Mauro Cappelletti & Joseph M. Perillo, Civil Procedure in Italy (Columbia Univ., 1965), pp. 34-35, footnote 139 cites the Decretals of Gregory IX, Liber Extra, title XX de testibus et attestationabus, cap. XXVIII.

[21]Charles Donahue, Jr., “Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law”, in Morris S. Arnold, Thomas A. Green, Sally Scully, and Stephen White, ed., On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne (North Carolina Univ. Press, 1981), pp. 127–154 and p. 147, footnote 89, citing case from York, Borthwick Institute, CP.E. 103, 1367-69.

[22] Donahue, Proof by Witnesses, p. 147.  It should be noted that Donahue’s research focused on the 13th and 14th centuries, but Helmholz’s research did not reveal any different trends in the 15th century.

[23] Helmholz, Marriage Litigation, pp. 61-62, citing Lacy, Marriage in Church & State, and p. 66.

[24] Helmholz, Bastardy Litigation, p. 373.

[25] Helmholz, Bastardy Litigation, p. 374.

[26] 27 Edw.III st. 1, c. 1, 38 Edw. III st. 2, cc. 1-4, 16 Rich.II c. 5.  Richard Burn, Ecclesiastical Law, Vol. II (9th ed., 1842) pp. 37-39.