The Precontract
by Dr Anne F. Sutton

Richard III's claim to the throne was set out in the document known as the Titulus regis (The Title of the King) presented to his first parliament held in January 1484, and accepted by that assembly. The main points were that the children of his brother, Edward IV, were illegitimate, and that as the children of his other elder brother, the duke of Clarence, were disabled by their father's attainder for treason, Richard was the next heir.

The arguments specifying the illegitimacy have proved to be the most difficult for commentators to understand or accept. They were difficult to comprehend outside the circle of canon lawyers at the time, and modern unfamiliarity with the tenets of medieval canon law and a tendency of popular historians to over-simplify until the original arguments no longer hang together do not assist those who wish to understand the problem as it existed in 1483. The legal aspects were set out most clearly in 1986 by Professor Richard Helmholz, a modern authority on medieval canon law. The following explanation is greatly indebted to his work.

The argument in canon law was made up of two strands of evidence, both equally important. First that there had been a contract of marriage between Edward and Lady Eleanor Butler (born Talbot) before he married Elizabeth Woodville in May 1464. This would be understood to have consisted of vows exchanged in the present tense, 'I do marry you' -- no witness or priest was necessary -- followed by intercourse. The second fact of Richard's claim -- often forgotten by commentators -- was that Edward's marriage to Elizabeth was clandestine, private, before only a few witnesses, with no banns called and no participation of the king's ministers.

The fact of the pre-contract cannot now be proved, although it could have been known to many persons in 1483; but there is no doubt that Edward's marriage to Elizabeth was clandestine.  Eleanor Talbot-Butler was not available to testify to the precontract as she had died in 1468. She had in fact died before the boy children of Edward IV were born, and thus under modern law, the adulterous nature of Edward's second union would have ended before they were born. This did not help their legitimacy in the fifteenth century, however: 'adultery, when coupled with a present contract of marriage', was an impediment to the subsequent marriage of the two adulterers. Thus even after Eleanor's death, Edward could not have married Elizabeth under canon law. This harsh judgement could have been mitigated if Elizabeth had not known of Edward's prior marriage -- in this case the two could have remarried after Eleanor's death. But all possible mitigation was rendered irrelevant by the clandestine nature of Edward's and Elizabeth's marriage. Although a clandestine marriage was accorded validity in many circumstances and the children born of such a marriage might be considered legitimate, the clandestine nature of this particular marriage actually made the children illegitimate. Clandestine marriages were deplored because people, between whom impediments existed, might contract marriage in error or by fraud; the calling of banns was aimed to publicise a proposed marriage and prevent such misfortunes, and to proclaim the good faith of the contracting parties. Edward's hasty and secret marriage to Elizabeth proclaimed his bad faith: if the banns had been called and his councillors informed, the impediment of the precontract might have been revealed and circumvented.

The long time during which Edward and Elizabeth lived together openly as man and wife would have been in favour of the legitimacy of the children of their union, but only if their marriage had obeyed the church's laws and had not been clandestine. Canon law allowed questions of legitimacy to be raised after the parents' deaths -- wrong was not excused by the passage of time, and long continuance of adultery did not make it right. Medieval canon law allowed Richard, Duke of Gloucester to raise the question of the children's legitimacy as late as 1483.

It has frequently been asserted that parliament was an improper place to try the issue of illegitimacy, as it was a secular assembly. It was still customary in late fifteenth-century England that questions of bastardy be tried in an ecclesiastical court, but the matter of inheritance was an entirely secular matter and canon lawyers of the day would have conceded this. In a case of less political and national urgency the issue of bastardy would have been raised in a secular court which would then have referred it to an ecclesiastical court, which in its turn would have delivered its finding to the secular court to take action upon. The Titulus regis, composed by Richard's supporters, attempted to circumvent this problem of jurisdiction by emphasising the notorious nature of the entire case which obviated an actual trial. It was asserted that public opinion considered the marriage of Edward and Elizabeth to be invalid, the essential truth of that public opinion could be presumed and no trial was necessary. Parliament was aware that there was a jurisdictional problem and, according to the Croyland Chronicler, only reluctantly accepted the new king's title 'out of fear'. An ecclesiastical court should have pronounced on the issue of bastardy, and no one was allowed to speak on behalf of the children -- these were weaknesses in the arguments on Richard's side. Similarly, his claim did not relate to a minor matter but to the descent of the crown, and the highly debatable rules that governed its descent -- at no time did a full parliament debate this, although there may have been some debate, at an almost parliamentary level, in the highly charged atmosphere of June 1483. For Richard's claim to succeed he had to over-ride the potential authorities of an ecclesiastical court and parliament. This does not, however, negate the undoubted weight of his claim in canonical terms.

Whatever the view of modern commentators, an ecclesiastical court might well have pronounced in Richard's favour. His case depended on the truth of the facts: the existence of a precontract, which we cannot now prove, and the clandestine marriage about which there is no doubt. Bastardy was held in strong dislike and the parents' guilt was visited upon their children. Medieval canon law was highly sensitive to the idea of ultimate truth, apart from what facts might be proved in a court. Thus the canon law could accept that the precontract had existed solely on the word of the bishop of Bath and Wells or because it was notoriously accepted to have been a fact -- that it was ultimately true. Conscience meant that a canon lawyer could be far more convinced of Richard's claim than a modern common lawyer might be.

The political circumstances certainly affected the way Richard's claim was presented, for example in the use made of the issue of notoriety. It was urgent that there should be a king, and it was generally undesirable that a child should be on the throne, and opposition to the proposal that Richard should be king might coalesce if the matter was delayed. The importance of notoriety in the arguments emphasises the well-known predilection of Edward IV for amorous adventures. It was only too easily supposed that he might have seduced a well-born lady such as Lady Eleanor, daughter of the earl of Shrewsbury, with the words of marriage. Intimates of the king could have known of the liaison even if the words of contract had not been heard. His secret marriage to Elizabeth Woodville in a private house with only a few witnesses had shocked his council when he finally revealed it; the story was well known throughout Europe by 1483, along with the detail that she had preserved her virtue and held out for marriage against all his persuasions. Edward's reputation was well known and a public scandal, and Richard's supporters made full use of this: the argument of 'notoriety' was highly plausible. Once parliament had accepted Richard's claim and the Titulus regis was enrolled, his title was as acceptable as those of Henry IV, Edward IV, or Henry VII.

The legal aspect of the claim was always difficult to grasp by the average layperson and it was explained on several occasions. It was first explained to Londoners in a sermon at St Paul's on Sunday 22 June 1483 by Ralph Shaa, a fellow of Queens' College, Oxford, and brother of the mayor of London. Another speech was made by the duke of Buckingham at the Guildhall and presumably repeated the same facts. The original draft of what was to be embedded in the Titulus regis was presented to those in positions of authority then in London in expectation of a parliament and a coronation (of Edward V), and it formed part of the petition to Richard to take the throne on 26 June. The details of the claim were then publicised during their formal acceptance by parliament in January 1484. But a few months later it was still thought necessary to explain the title carefully: in April the Ironmongers' Company of London recorded that they had paid for two wherries to take them to Westminster 'the which tyme the kyng tytylle and right was ther publyschid and shewid'. This exercise in public relations was directed at the citizen elite of London, who would then have explained it to their subordinates. It was supported by a sermon at St Mary's Hospital Bishopsgate by Thomas Penketh, the Provincial of the Augustine Friars, at Easter 1484, part of a sequence of highly prestigious sermons held each year in Easter Week in London at St Paul's and St Mary's; they were attended by the mayor, aldermen  and all leading citizens and drew large crowds. The last two events testify to the efforts made by Richard to explain the intricacies of his title in canon law to his people, and probably also to his sincere acceptance of its validity.

The source of the argument that Edward's children were illegitimate is generally taken to have been John Stillington, Bishop of Bath and Wells. He was certainly a noted authority on canon law and had been lord chancellor of England 1467-70, 1471-73. There is no need to assert that he had anything to do with or witnessed the original precontract between Edward and Eleanor, he only had to make the crucial connection between a precontract and a subsequent clandestine marriage under canon law and realise how they affected the legitimacy of Edward's children. It is also possible that Stillington had voiced his opinion at the time of the execution of George, Duke of Clarence, for he was imprisoned in the Tower and heavily fined shortly after in 1478 (Kendall, p. 217 and n. 10). Stillington's arrest was ordered by Henry VII on the same day as Bosworth and although the bishop was pardoned for unspecified offences, he joined the Lambert Simnel conspiracy, was recaptured, and remained in custody for the rest of his life.

Sources in chronological order:

For the Titulus regis see Rolls of Parliament (Rotuli Parliamentorum), 6 vols, London 1776-77, vol. 6, pp. 240-42. [The Parliament Rolls of England are now available on CD-ROM from Scholarly Digital Editions
www.sd-editions.com]
P.M. Kendall, Richard III, M. Levine, 'Richard III -- usurper or lawful king?' Speculum, vol. 34 (1958) -- the standard hostile view on the matter, made without the benefit of Helmholz's knowledge; refuted by O'Regan and Helmholz.
M. O'Regan, 'The pre-contract and its effect on the succesion in 1483', The Ricardian, vol. 4, no. 54 (Sept. 1976), pp. 2-7 -- an earlier refutation of Levine.
A.F. Sutton 'Richard III's "tytylle and right": a new discovery', The Ricardian, vol. 4, no. 57 (June 1977) and subsequent note, no. 59 (Dec. 1977), p. 28.
C. Ross, Richard III, London 1981, pp. 87-92.
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, ed P.W. Hammond, London 1986, repr. 2000.
Series of articles identifying Eleanor Talbot-Butler by John Ashdown-Hill, The Ricardian, vols 11-16 (1997-2006).