Illegitimacy in 15th Century England

Illegitimacy in 15th Century England

What was illegitimacy?

A child was illegitimate if born to a woman who was not married to the child’s father.

Why was illegitimacy important?

Only legitimate offspring could inherit land when a parent, usually their father, died. In a last Will and Testament a parent could bequeath property, but not land, to an illegitimate child. The Will stated who should inherit land, the Testament stated who could inherit property other than land, such as money, horses, furniture, jewellery.

What was the popular view of illegitimate offspring in 15th Century England?

Illegitimate children were called bastards and this was often regarded as a pejorative term. Sometimes parents treated bastards equally with legitimate children, but sometimes not.

Which 15th Century Kings of England had illegitimate children? What became of them?

Henry IV, V, VI and VII had no known illegitimate children

Edward IV had several illegitimate children by different women and in 1483 all his seven surviving children with Queen Elizabeth (née Woodville) were declared illegitimate. This led to the coronation of his brother Richard III in place of his son Edward V. After Richard’s death at the battle of Bosworth, his successor Henry VII had the illegitimacy cancelled so that he could marry Edward’s eldest daughter, Elizabeth of York.

Richard III had two known illegitimate children, who outlived his only legitimate son. Both illegitimate children were publicly acknowledged. His son, John, was knighted by Richard, and his daughter, Katherine, made a good marriage.

Who decided whether someone was illegitimate?

There were two types of court that could decide on legitimacy: a Church court, applying Roman Catholic Canon Law, and a secular court applying English Common Law on inheritance of property.

What criteria were used to decide legitimacy?

Essentially whether the child’s parents were legally married at the time of the birth of the child.

How was marriage recognised?

Bear in mind that everyone in 15th century England was baptised into the Roman Catholic Church. The Church had published a set of guidelines for marriage at the 4th Lateran Council (1215) and the law of England followed these guidelines. Marriage was, and still is, one of the sacraments of the Catholic Church. A Catholic marriage is for life: divorce is not permitted.

What was the role of the sacrament of marriage ?

Ideally, a legal marriage took place in a church, officiated by a priest, in the presence of witnesses, with the informed consent of both parties and after the intended marriage had been advertised (reading of ‘banns’). Banns were read to allow time for objections to the marriage to be raised and either be resolved or establish an impediment to the planned marriage e.g. one of the two people was already married. [ cf. Jane Eyre]

Could a couple marry in secret without a priest?

If the couple said ‘I marry you’ they were married even without sex. If they said ‘I will marry you’ then they were married once they had had sex. Witnesses were not required for the marriage to be legal, but their presence made it easier to prove.

If there was an impediment in canon law to a marriage conducted in secret the marriage might not be valid, but it was often possible to gain a dispensation retrospectively for minor issues such as consanguinity.

How could illegitimacy become legitimacy or vice versa?

If neither parent of a child was married at the time of the child’s birth but at a later date became legally married, then the child would be recognised as legitimate by the Church but not necessarily by the Common Law of England.

If the mother of the child was married to someone else at the time the child was conceived then the child would be regarded in Common Law as the legitimate child of the mother’s legal husband at the time of birth. In the view of the Church however the child was illegitimate and could not become legitimate because it was the product of adultery.

If the mother was not married but the father was married then the child was illegitimate at the time of its birth. The child might never become legitimate, because it was conceived by adultery, unless the father could have his previous marriage dissolved i.e. declared invalid for one of the recognised reasons under canon law e.g. he and his wife were closely related. The Beaufort children of John of Gaunt and Katherine Swynford were a rare exception. [Money and power can influence decisions.]

If a marriage that produced children was later proven to be invalid then, in certain cases the parents could validate their marriage, but in some cases this would not be possible. Nonetheless, the children were usually considered legitimate. One exception to this was if the marriage had been clandestine: the assumption in such a case was that the couple had married in secret in order to avoid anyone raising objections and the marriage was contracted in bad faith. In this situation the children of the marriage were not legitimate, even though they had grown up believing that they were. Edward V was caught in this trap, according to Titulus Regius, because of his father’s alleged bigamy in a second clandestine marriage.

How could a marriage be dissolved? What happened to children from a dissolved marriage?

Even if a couple contracted an apparently valid marriage, following all the rules of the Church, the marriage could be declared by the Church to be invalid and dissolved as though it had never taken place. One reason to dissolve a marriage was, and still is, if either partner refused or was unable to consummate the marriage i.e. engage in sexual intercourse. The purpose of marriage, in the eyes of the Church, was to produce children, so to be unable or unwilling to attempt to achieve this meant that the marriage contract was not complete. After any necessary investigations to prove non-consummation, the marriage would be declared dissolved (‘annulled’) and both parties were free to seek another marriage.

If the marriage partners were dissatisfied with the marriage e.g. their inability to produce children, especially male children, then they could look to find reasons/excuses for annulment. One reason could be that they were within prohibited degrees of consanguinity (too closely related by bloodline) or of affinity (too closely related by family other than by bloodline e.g. in-laws) and hence their marriage was not a true marriage blessed by God. The Church took the view that any children of such a marriage were not at fault and remained legitimate, although this was not always the case in Common Law as evidenced in Henry VIII’s Great Matter which resulted in the declaration that his daughter Mary, with Katherine of Aragon, was a bastard.

What role did the pope have in recognising royal marriages?

The pope and, in urgent cases, other bishops, had the power to disapply canonical rules in specific cases: this is called a dispensation. The theological purpose was to save a soul from peril of damnation due to circumstances beyond a person’s control.

In England, during the late Middle Ages, kings acquired their formal authority to rule through a public ceremony, held in a Cathedral, by making an oath before God, being anointed with holy oil (chrism) and being crowned by the most senior prelate of their realm.  This implied the approval of the pope to whom all heads of government looked for political and moral support.  Sometimes this support was not always forthcoming and there were breakdowns of trust such as between King John and Pope Innocent III in the early 13th century, but that was repaired to the extent that the pope would not approve Magna Carta because it placed limits on the God-given power of an anointed king. Early in 15th century there had been rival claimants as pope and for over a year in 1415 no pope at all, which had temporarily undermined the authority of this office.

As part of the contract between Church and state, the pope’s approval was often sought for royal marriages. One reason was that such marriages were sometimes part of international treaties for cessation of war (e.g. Henry VI and Margaret of Anjou, 1444) or mutual defence (e.g. Margaret of York and Charles the Bold, duke of Burgundy, 1468) and therefore could promote peace and international trade, but might also pose threats to political stability in Europe. Another reason was that many royal marriages were between parties well within the prohibited degrees of affinity, contracted with the aim of retaining family land or to enlarge the lands of the royal aristocracy. The permitted reasons for papal dispensation gradually developed into a long list (see Causes for Dispensations).

Examples of popes providing and refusing dispensations for royal marriages

Two examples from the House of York which required papal dispensations on grounds of consanguinity were the marriages of King Edward IV’s younger brothers: George, duke of Clarence to Isabel Neville (his grandparents, Ralph Neville and Joan Beaufort, were her great grandparents) and Richard, duke of Gloucester, to Isabel’s sister, Anne Neville (same degree of consanguinity). Richard and Anne’s marriage was also potentially compromised by an ‘affinity’ created by her first marriage to Edward of Lancaster. The act of sexual intercourse, whether in marriage or not, was regarded by the Church as creating degrees of affinity with the partner’s relatives. The practical outcome of both marriages was that the king’s brothers controlled huge amounts of land in England. Either brother might have succeeded Edward as king of England and hence Isabel or Anne could have become queen, so they created potentially powerful pairings. By 1483 George and Isabel were both dead and, following the declaration of illegitimacy of Edward’s children, Richard and Anne were crowned king and queen in a joint ceremony.

By contrast, during the Hundred Years War, Pope Urban V in 1364 had refused dispensation for Edmund of Langley, fifth son of Edward III, to marry Margaret, heiress to Burgundy and Artois. The official grounds for refusal were because of too close consanguinity, but in reality, to prevent encirclement of France by English controlled land. Urban V did grant dispensation for Margaret to Marry Philip, Duke of Burgundy, to whom she was related more closely than to Edmund of Langley.

What were the forbidden degrees of relationship for Christian marriage and how did these change in the medieval period?

The Old Testament in the Christian Bible (Leviticus chapters 18 & 20) lists many prohibited unions which we would regard today as incestuous. Other forbidden pairings were the consequence of family relationships who were not necessarily blood relatives. One famous example which impacted in the 16th century is the Old Testament instruction not to marry one’s deceased brother’s widow [Leviticus 20:21], although this is qualified elsewhere [Deuteronomy 25:5].

Couples who were related by ‘blood’ (consanguinity) and shared at least a common great-great-great-great grandparent (seventh degree, fifth cousins) were forbidden from marrying by Canon Law until the 13th century. The 4th Lateran Council (1215) amended this to four degrees i.e. couples who shared a set of great-great grandparents (third cousins).

Why and how was Edward V (and his siblings) declared illegitimate?

In Titulus Regius, an Act of Parliament of January 1484 (new style calendar), it was alleged that King Edward IV was already married when he went through a clandestine marriage with Dame Elizabeth Grey (née Woodville) sometime in May 1464. His alleged prior marriage (‘pre-contract’) has been thought to be with Lady Eleanor Butler, the widow of Sir Thomas Butler, and daughter of John Talbot, 1st earl of Shrewsbury, but there is some doubt about her identity or even whether such a pre-contract took place.

Eleanor died in 1468, four years after the supposed marriage of Edward and Elizabeth, and two years before the birth of their first son, Edward who became Edward V in 1483.

The marriage of Edward and Elizabeth had been contrary to canon law as no banns had been issued which might have brought to light any previous marriage.

The case was never referred to the pope, as the highest authority in the Church who could have declared in favour of Edward V and, according to Canon Law, the children were presumed legitimate until the case was decided. Neither is there any record of Queen Elizabeth’s view of her marriage being sought. Instead, the case was decided by general agreement between the Lords and Commons, which led to the coronation of Richard III in June 1483 followed by the retrospective publication of Titulus Regius. One reason for this may have been the perceived need to avoid a period of uncertainty. For a papal decision to be achieved the case had to be argued in person with the pope. The fastest journey time from London to Rome in the 15th century was about one month and popes often spent weeks or months thinking and consulting about their decision. The English succession could have been left undecided for several months whilst facing threats of invasion from both France and Scotland. It may be that an experienced military leader, Richard, was favoured by Parliament over a twelve-year-old boy for pragmatic reasons. Parliament included the Lords Spiritual of England so it may be assumed that they gave their consent,  as representatives of the Church, to the declaration of illegitimacy of Edward V and recognition to the claim of Richard III.

How and why was the legitimacy of Elizabeth of York reinstated?

The existence of Titulus Regius was an impediment to the marriage between Henry Tudor and Elizabeth of York, who, if legitimate, had a stronger claim to the throne than Henry and whom, in 1483, he had pledged to marry. Henry declared Titulus Regius cancelled when he married Elizabeth and, at his first Parliament, ordered the destruction of all copies. We only know of its existence because one copy survived in addition to the original in the parliamentary roll.

A consequence of erasing Titulus Regius was to recognise not only Elizabeth of York as legitimate, but also all of her siblings, including Edward V and his younger brother Richard, duke of York. However, the latter had not been seen in public since the summer of 1483 and if not actually dead, were assumed to be dead and so not able to claim the throne.

Henry was very alert to the potential threats to his position by possible Yorkist claimants and had pretenders such as Lambert Simnel and Perkin Warbeck captured and neutralised and other members of the Plantagenet family imprisoned or executed.

Was Henry Tudor illegitimate?

Henry’s great-great grandfather was John of Gaunt who had three successive wives. During his politically motivated marriage to his second wife (Constance of Castile) he had four children by his mistress Katherine Swynford. After the death of Constance, he legally married Katherine but this did not automatically make their children legitimate as they had been conceived by adultery – a mortal sin in the opinion of the Church. The pope agreed to recognise their children as legitimate and this was upheld by two Kings: Richard II, their cousin, and Henry IV, their half-brother. The eldest child, John Beaufort, first earl of Somerset was the great grandfather of Henry Tudor, so Henry was descended from the illegitimate child of an adulterous liaison.

He may have had no legitimate right to the throne, but by defeating Richard III in battle he was able to claim the throne ‘by conquest’, as William of Normandy, also born illegitimate, had done in 1066.

Tricky cases

In the 15th century, priests were not allowed to marry, although married clergy had been common up to the 12th century. However, priests often fathered children. These children could never be legitimate either in Canon Law or Common law because their father was not allowed to marry. Normally a bastard could not become a priest but many dispensations were granted for this purpose despite the Church’s policy of not condoning an hereditary priesthood.

UK Law in 21st Century

There is now no distinction in legal status and rights of any child irrespective of whether their parents are married, in a civil partnership, not in any relationship or the child was conceived in a laboratory (in vitro) or adopted or in care.

This change followed a series of Acts of Parliament in the 20th century culminating in the Family Law Reform Act 1987 and later amendments.

References

The Legitimacy of Bastards, The Place of Illegitimate Children in Later Medieval England, Helen Matthews (Pen & Sword, 2019)

 The Sons of Edward IV: a canonical assessment of the claim that they were illegitimate in Richard III Loyalty Lordship and Law (ed. P.W. Hammond (Richard III and York History Trust, 1986)

The Royal Bastards of Medieval England, Chris Given-Wilson and Alice Curteis (Barnes & Noble, 1995) Chapters 2 (Marriage and divorce), Chapter 3 (Sex, Love and Illegitimacy), Part III (Royal Bastards in Late Medieval England).