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«Brief Chronicles IV (2012-13) 39 Did Tudor Succession Law Permit Royal Bastards to Inherit the Crown? Thomas Regnier S ome advocates of the theory ...»

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Brief Chronicles IV (2012-13) 39

Did Tudor Succession Law Permit

Royal Bastards to Inherit the Crown?

Thomas Regnier


ome advocates of the theory that Queen Elizabeth the First had a secret

illegitimate child argue that Parliamentary legislation paved the way for

such a child to succeed to the throne. To support this theory, they cite

a 1571 statute1 that refers to the Queen’s “natural issue” as possible heirs to the

throne. The phrase “natural issue” could refer to an illegitimate child, whereas “lawful issue” would designate only persons born in wedlock. Dr.

Paul Altrocchi argues that the 1571 statute no longer required that a successor to the throne be “lawfully” begotten:

The... Act of Succession had specified that a legal royal heir must be “issue of her body lawfully to be begotten.” In 1571, “lawfully to be begotten” was struck by Parliament, permitting royal bastards to be legal heirs to the Crown.2 Paul Streitz also maintains the possibility of an illegitimate child becoming the monarch, saying that the 1571 Act “specifically reversed the previous Act of Succession” and “opens up the possibility for an heir to the throne from Queen Elizabeth, even an illegitimate one.”3 Charles Beauclerk, while not asserting that the

Act expressly allowed bastards on the throne, echoes this theme:

By means of this extraordinary clause [in the 1571 Act], Elizabeth was opening the door to the possibility that even if she refrained from naming an illegitimate child as her successor, others might in time take the opportunity to do so.4 Regnier - Tudor Succession 40 These writers are not the first to interpret the 1571 Act as clearing a path for bastard kings. Indeed, as William Camden wrote, the wording of the statute became

the subject of general mirth around the time it was enacted:

But incredible it is what jests lewd catchers of words made amongst themselves by occasion of that Clause, Except the same be the Natural issue of her body; forasmuch as the Lawyers term those Children natural, which are gotten out of Wed-lock....5 Additionally, in 1584, the anonymous Leicester’s Commonwealth6 accused the Earl of Leicester, Queen Elizabeth’s longtime “favorite,” of scheming to get the words “natural issue” placed in “the statute of succession” so that, after the Queen’s death, Leicester could have one of his bastard children made king by pawning him off as his and Elizabeth’s illegitimate child. But did the 1571 statute actually allow for this?

In this article, I examine the theory that the 1571 statute allowed royal bastards on the throne and find that it does not stand up to scrutiny. In doing so, I first explore, as background, English common law and ecclesiastical law regarding bastardy, especially as this subject relates to the royal succession. This article discusses the role of Parliament in determining the succession and explains how statutes are interpreted and how they are revised and repealed.

The article also analyzes the changes made in the succession law by the three Acts of Succession of Henry VIII. Finally, the article examines the 1571 Act cited above, which is actually a treason statute, and demonstrates that it does not alter the requirement laid down in the Third Act of Succession that for any children of Elizabeth to inherit the crown, they would have to be her lawful issue.

Caution: Bastards

It is difficult to imagine an illegitimate person ascending the throne when, under the common law, a bastard was filius nullius, or “child of no one.” Bastards could not inherit real property,7 let alone kingdoms.8 Otherwise, bastards had the same rights as other free persons.

The common law of bastardy and the ecclesiastical, or church, law were often in conflict. Church courts decided disputes about the validity of a marriage;

but the common law, or secular, courts decided disputes about the inheritance of real property, which were often intertwined with decisions about the validity of marriages.

Under church law, children of adulterous relationships were bastards. The common law, however, had a strong presumption that a child born to a married woman was legitimate, even if the child was the result of an adulterous affair. For example, a legal standard often used to determine legitimacy was the “Four Seas”


Brief Chronicles IV (2012-13) 41 as long as the husband was not impotent and he was in the kingdom at any time at all during the pregnancy then the child was legitimate.9 Shakespeare’s Richard III, in fact, refers to the “Four Seas” test when Richard, then still Duke of Gloucester, argues his claim to the throne based on the theory that

his late brother, King Edward IV, had actually been a bastard:

Tell them, when that my mother went with child Of that insatiate Edward, noble York, My princely father, then had wars in France.10 It is significant that Richard points to the time when his mother “went with child,” which covers the whole pregnancy, not merely when she was got with child, which would refer only to Edward’s conception. In order for Edward to be a bastard under the “Four Seas” test, his father would have had to be out of the kingdom for the entire pregnancy, not just the time of conception—biological facts be damned.

Richard methodically establishes the other significant fact necessary to make his brother illegitimate by saying that their father “had wars in France” during the pregnancy: in other words, he was outside the kingdom.

A 1406 Year Book, an early collection of law reports, memorably summarized the ramifications of the “Four Seas” test as “Whosoever bulleth my cow, the calf is mine.”11 The test was abandoned in 1732, however, “on account of its absolute nonsense.”12 Paradoxically, the church law, which so strongly disfavored the legitimacy of children of adulterous unions, allowed for “special bastardy,” which was the legitimizing of a bastard child after the fact, if his parents should later marry. The common law, however, still held such a child illegitimate and incapable of inheriting real property.

But the common law did not consider a child illegitimate if the parents had married in good faith and the marriage later had to be annulled because of the discovery of consanguinity (a blood relationship) or affinity (a familial relationship through marriage) between the parents.13 A possible basis for bastardy under the common law was that the parents’ marriage turned out to be invalid due to a “precontract,” such as those found in Shakespeare’s Measure for Measure. One kind of “precontract” was an oral agreement between a couple that they would marry at some time in the future. This agreement was binding on both parties and neither one could marry someone else without first obtaining the agreement of the original betrothed to dissolve the contract.14 Measure for Measure contains two examples of precontracts: one between Claudio and Juliet, who are engaged and living together while awaiting their dowry; and another between Angelo and Mariana, which Angelo had managed to dissolve through a legal loophole, namely, Mariana’s alleged lack of chastity.

The principle that a valid precontract nullifies a later marriage was yet another legal tool that became useful to Richard III on his way to the throne. Richard Regnier - Tudor Succession 42 argued that when Edward IV married his queen, Elizabeth Woodville, Edward was already precontracted to another woman. This would make the children of the marriage illegitimate. In the Titulus Regius (Title of the King), an act passed by Parliament in 1484, Richard received after-the-fact legislative blessing on his kingship based on Edward’s invalid marriage and the consequent bastardy of

Edward’s sons:

[A]t the time of the contract of the same pretensed marriage [to Elizabeth Woodville]... King Edward was and stood married and troth plight to one Dame Eleanor Butler... with whom the said King Edward had made a precontract of matrimony.... Which premises being true, as in very truth they been true, it appears and follows evidently, that the said King Edward during his life, and the said Elizabeth, lived together sinfully and damnably in adultery, against the law of God and his Church.... Also it appears evidently and follows that all the issue and children of the said King, been bastards, and unable to inherit or to claim anything by inheritance, by the law and custom of England.15 This proclamation is grounded in the longstanding common law principle that illegitimate children could not inherit real property, including, of course, the kingdom.16 Parliament and the Succession The Titulus Regius, in which Parliament endorsed Richard III’s claim to the throne, was not the first instance of Parliament involving itself in the succession.

Even before King John signed the Magna Carta in 1215, English kings were not absolute rulers.17 The king’s Great Council, which had the power to prevent the king from raising taxes, eventually evolved into what we now call “Parliament” and officially assumed that name in the 1230s. While the monarch was, as Sir Thomas Smith said, “the life, the head, and the authority of all things that be done in the realm of England,”18 Parliament was always looking over the monarch’s shoulder and gradually growing in power.

When it came to the succession to the crown, there was no set formula for determining the next monarch: heredity played a large role, but considerations such as popular support, military strength, and administrative ability also mattered.19 Succession was “determined by politics more than law when the choice of a successor was complicated by the absence of a direct and competent heir.”20 Parliamentary approval might then become the decisive factor, although in some cases Parliament did little more than meekly ratify the results achieved on the battlefield.21 Even before the Titulus Regius, Parliament had often taken an important role in determining the succession. For example, in 1327, Parliamentary pressure was a factor in the forced abdication of Edward II.22 In 1377, when Richard II succeeded his grandfather, Edward III—skipping over Edward’s still-living son, John of Gaunt— Brief Chronicles IV (2012-13) 43 Richard’s right to the throne had already been validated by his having been made Prince of Wales, at Parliament’s request, the previous year.23 By 1399, Richard II had come full circle, as Parliament accepted his coerced resignation and allowed Henry IV to become king, despite an arguably stronger claim by Henry’s cousin, Edmund Mortimer.24 In 1460, during the Wars of the Roses, when Richard, Duke of York, claimed a superior right to the throne to that of Henry VI, he presented his case to Parliament, which decided that York’s claim was stronger, but voted that Henry VI should remain as king. Parliament then passed the Act of Accord, a compromise that kept Henry as king but recognized York as his successor and disinherited Henry’s son.25 The Wars of the Roses placed a premium on Parliamentary approval as a way to inject a sense of legitimacy into one’s occupying the throne. Sure enough, when Henry Tudor, the Second Earl of Richmond, ended the Wars by overthrowing Richard III in 1485 to become Henry VII and begin the Tudor dynasty, a preamble to the new statutes enacted in his reign proclaimed him the true king, even though it gave no explanation as to how or why he was entitled to that position.26 Succession statutes would become a feature of the Tudor era, with Henry VIII promulgating three different succession acts that changed the course of history.

Before delving into these statutes, let me offer a few words of advice about

reading these, or any other statutes:

(1) Read a statute very carefully.27 English statutes from this period tend to use excessive verbiage and often repeat the same idea several times using slightly different words, just to be sure all bases are covered. This results in extremely long sentences, in which one needs to carefully identify subjects, verbs, objects, and supporting clauses in order to understand the legal effect of the statute. In this article, I have made liberal use of ellipses when quoting statutes in order to focus on the significant, operative words of a statute. I have also modernized the spelling and typography.

(2) Start with the text itself.28 If the meaning of the statute is clear from the plain language of the statute, one need not look any further.

(3) If any doubt remains about the effect of the statute, consider whether your interpretation of it harmonizes with other laws, such as the common law, ecclesiastical law, or other statutes.29 (4) If one is still uncertain, only then does one look at the legislative history for clues to a statute’s meaning. This method of interpretation is only a last resort because what a few legislators may have stated at the time of a statute’s enactment may not represent the understanding of all the legislators.30 A well-written statute should be clear from the text itself, without resorting to other interpretive methods.31 Regnier - Tudor Succession 44

First Act of Succession, 1533–34

With these thoughts in mind, let’s look at the First Act of Succession under Henry VIII, enacted by Parliament and the King in 1533–34.32 Although it is entitled, “An Act for the establishment of the King’s succession,” it touches on many subjects, including treason law33 and laws regarding marriages between people who were already related.34 In creating these statutes, the monarch and Parliament were not merely creating new laws; they were creating propaganda. They provided not only rules to be followed, but also justifications to explain why these rules were for the good of the kingdom. Little, if any, emphasis was placed on the possibility that these laws might also be good for the monarch personally, although that was likely to be the case. The First Act of Succession begins with a preamble that purports to explain the reason for

the statute:

calling to our remembrance the great divisions which in times past hath been in this Realm by reason of several titles pretended to the imperial Crown...

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