I hope that reviewing these nine cases of disputed royal marriage together, and setting them in the wider context of the contemporary marital activities of the royal family as a whole, will allow the individual cases to shed light on one another. Thus we shall perceive some parallels between Henry VIII’s relationships with Catherine of Aragon and Anne Boleyn, and Edward IV’s relationships with Eleanor Talbot and Elizabeth Woodville in the preceding century. Reviewing the official position ultimately taken up by the establishment may, in some cases, also serve to highlight key similarities and differences. For example, in 1911 the case of George V was taken straight to court – presumably because it was considered that there was sufficient evidence for the king to win. Therefore in 1483–84, when Richard III took the disputed marriage of his late brother, Edward IV, to Parliament, perhaps that was for similar reasons. On the other hand, Henry VII’s later suppression and destruction of Richard III’s evidence tends to confirm that the evidence in Richard’s case had been pretty convincing. My review of the case of George V, on the other hand, seems to reveal flaws in that king’s evidence.
Some previous writers have chosen to make very firm judgements about our cases of disputed royal marriage. This will not be done here. Many of the cases are not black and white, and there may be no simple answer. In one sense Henry VIII was certainly married to Anne Boleyn – but in another sense he was not! George [IV] clearly had a wedding with Maria Smythe (Mrs Fitzherbert) – but was it legal? On the whole my preference will be to tell the stories, present the evidence (some of it new), draw some parallels, and then leave the final verdict in each case to my readers.
One
The Background
1
THE EVOLUTION
OF MARRIAGE
* * *
That the good purpose of marriage is better promoted by one husband with one wife, than by a husband with several wives, is shown plainly enough by the very first union of a married pair, which was made by the Divine Being Himself.
St Augustine, On Marriage and Concupiscence, Book 1, Chapter 10
* * *
One key word which will require careful consideration in this study is marriage. This has been defined in many ways. The Oxford English Dictionary describes it as ‘the formal union of a man and a woman, typically as recognised by law, by which they become husband and wife’.1 An alternative, slightly fuller dictionary definition states that marriage is ‘the social institution under which a man and woman establish their decision to live as husband and wife by legal commitments, religious ceremonies, etc’.2
Each of these definitions makes important basic points. At the same time they both omit essential information.
Implicit in both definitions is the idea that marriage involves one partner of either sex. In other words what is being defined here is monogamous heterosexual marriage. Nowadays, of course, marriage is not universally heterosexual. However, in the past history of English royal marriages heterosexuality always constituted the normal and required pattern.
As for monogamy, as St Augustine’s quote at the head of this chapter shows, in the ancient past, that was not a universal norm, and even today monogamy is not required in some cultures. In Christian contexts, however, monogamy has always been accepted, so that when reviewing English royal marriages, monogamy is a basic rule to which we should always expect those marriages to conform. Thus if an English sovereign already had a spouse, (s)he could not acquire a second married partner without first disposing in some way of the earlier commitment. This point will prove significant in some of the cases which we shall examine.
From a historical perspective the most salient omission in the definitions of marriage quoted above is their failure to state that until five centuries ago the law involved in the recognition of marriage was not the law of the State, but the law of the Church. Prior to the sixteenth century the State generally had no say in matters of marriage, and played no role in the recording of marriages or in the adjudication of their validity.
The key point to remember is that marriage is not a static institution. In the course of history it has evolved a great deal. Until the middle of the sixteenth century Christian marriage throughout Europe was basically a matter of mutual consent between the two contracting parties – and also their families if titles or property were involved. The partners merely had to declare their intention to marry. This had to be followed by their physical union (sexual intercourse).
The couple would promise verbally to each other that they would be married to each other; the presence of a priest or witnesses was not required. This promise was known as the verbum. If freely given and made in the present tense (e.g., ‘I marry you’), it was unquestionably binding; if made in the future tense (‘I will marry you’), it would constitute a betrothal.3
It is important to note that the promise was oral. There was no requirement for anything to be written down. Also the Church might or might not be directly involved, but there was certainly no question of any State involvement. And if subsequently any query arose about the validity of the marriage this would be adjudicated in a Church court, not a civil court.
On one level marriage has always been first and foremost a sexual union. But not all sexual unions are marriages. Implicit in marriage are concepts of commitment and authorisation. In the context of such a commitment a female partner is safe to surrender her virginity and risk pregnancy, because she has the supposed guaranteed support of a male partner, coupled with the approval of society. Sexual unions which were not marriages were much more risky. Even if they outlasted the initial phase of sexual attraction and became enduring long-term relationships, they still lacked official authorisation. The children produced by such unions were traditionally viewed – and treated – by European society as different in quality and inferior in importance to children produced within marriages. It is true that in the twenty-first century the concept of ‘illegitimacy’ has largely faded into insignificance, but historically the discrimination between ‘official’ and ‘unofficial’ offspring was extremely important.
The modern phenomenon of marriage may also be different in other ways from its historical counterpart. In twenty-first century England 55 per cent of marriages are celebrated in non-religious venues. The overwhelming majority of bridegrooms will wear a wedding ring.4 Today, 93 per cent of the couples will have been living together prior to their marriage, and 88 per cent of the brides assume their husband’s surname after marriage, but 3 per cent keep their maiden names. Other couples combine their two surnames.5
One hundred years ago the picture was different in many respects. Most marriages were then celebrated inside churches, and English husbands were rarely given wedding rings as part of the marriage ceremony. The modern move away from a religious venue for a wedding was initially regarded as somewhat revolutionary. However, marriages had not always been held in religious venues. Prior to the sixteenth century a wedding inside a church was by no means the norm. If they were formal, public events, weddings were often held in the open air, outside churches. But many marriages were made in private, by a simple exchange of promises, with no public present. Such simple, private exchanges of vows could take place anywhere – in a house, in a barn, in the open air. It is therefore clear that the history of marriage in England has witnessed many changes over the past 1,000 years, and the form and significance of marriage has by no means been fixed.
Royal marriages may always have been always something rather special, set apart a little from the general run of weddings – and in recent years, perhaps, a little conservative in nature. Thus twentieth-century royal partners did not usually live together before marriage, royal bridegrooms tend not to be given wedding rings in their marriage ceremonies, and royal marriages generally continue to be celebrated in large and significant churches.6
However, even royal marriages have undergone change and evolution. Fiona Macdonald, author of Royal Weddings: A Very Peculiar History, has claimed that recent royal wed
dings show a break with past tradition in respect of the choice of brides:
Until the 19th Century and early in the 1900s, the pattern had been largely the same for the past 1,000 years. Royal weddings were usually arranged for political, dynastic and empire-building reasons, and the bride and groom were always of mutually royal rank. Marrying a commoner was exceptionally rare. The most famous example was Edward IV marrying Elizabeth Woodville in the 15th Century.7
Many people would probably intuitively agree with Macdonald’s statement that ‘the bride and groom were always of mutually royal rank’, but in fact this is completely untrue. Appendix 1 (below) shows very clearly that, of the forty-nine listed English sovereigns and direct heirs since the Norman Conquest, less than half married consorts who were of royal birth. Royally born spouses have been particularly rare since the Hanoverian accession. Nevertheless, it is true that the most recent generations have certainly witnessed changes in the origin and social status of royal marriage partners by comparison with the immediately preceding centuries.
In other respects, prior to the twentieth century royal weddings varied very considerably. For example, in the past they were by no means automatically public affairs. Sometimes they were celebrated in the privacy of a chapel royal. Queen Victoria and Prince Albert were married on 10 February 1840, in the Chapel Royal of St James’s Palace in London. More than three centuries earlier, on 11 June 1509, Henry VIII married Catherine of Aragon at an even more private ceremony at the Greenwich Greyfriars’ Church – although Catherine had previously married Henry’s elder brother, Arthur, much more publicly, at old St Paul’s Cathedral.8 Some royal weddings were celebrated outside England. The first marriage of Edward I and the marriage of Edward II are examples. A surviving illustration of the occasion implies that the wedding of Edward II may have been a public event, held in the open air, in front of (rather than inside) the shrine church of Our Lady of the Sea at Boulogne. The illustration, however, is not contemporary with the event (see below).
Sometimes royal bridegrooms did not even attend their own weddings. Some royal marriages were celebrated with only one of the two partners present. Thus Charles II married the Infanta of Portugal by proxy – and by Catholic rites, despite the fact that the Reformation had by this time taken place9 – at a partly public, partly private ceremony in Lisbon on 23 April 1662.10 Charles was ‘present’ on this occasion only in the guise of an oil painting. A month later, after the Infanta had reached England, repeat marriage ceremonies, both Catholic and Protestant, were conducted for them, at each of which both of the parties were physically present. The Protestant marriage ceremony was conducted by the Bishop of London. Nevertheless, that was a private, not a public event.
The legal situation in medieval and early modern Europe was similar to that which exists in some Moslem countries today – where religious (sharia) law either plays a significant role alongside civil law, or may even supersede it. In the same way in medieval and early modern Christian society Church law played an important role, and in some matters the religious law was entirely predominant. Thus, in the first part of the period we are considering, the laws relating to marriage were exclusively Church laws and had nothing to do with the State.
However, the medieval Church rules for marriage were in some ways imprecise. They included no provision for any written record, and generated no such document as a marriage certificate – an item which would be considered indispensable in any modern marriage. Curiously, perhaps, the Church marriage laws also required no specific ceremonial, no attendant priest,11 no witnesses and no specific and authorised venue. A formal wedding ceremonial of the Church did certainly exist, and was sometimes used, but it was by no means an essential requirement.12 Hence marriage promises could be, and were, exchanged anywhere. There was no compulsion for vows to be made in a church, or in any other legally established place. And since there was no formal requirement for a priest – or indeed anyone except the contracting couple – to attend, the verbal promises which comprised the first requirement for a wedding could be uttered with only the bride and groom present.
It has always been the Catholic Church’s teaching that marriage is a self-conferring sacrament, which is basically effected by the free consent of the parties, confirmed by consummation. In the Middle Ages (when marriage had not yet become a civil contract) it was the logic of this argument which led to the practical conclusion that no formal, public ceremony was essential. ‘Betrothal followed by intercourse was recognised by the Church as a binding marriage contract’.13 In fact, either a promise exchanged per verba de presenti14 alone (i.e. without subsequent sexual intercourse), or alternatively a promise per verba de futura15 followed by sexual intercourse, constituted a valid marriage.
Vows followed by intercourse had been formally and explicitly acknowledged as constituting valid marriages by decretals of Pope Alexander III.16 Consequently, as we have seen, the official position of the Church was that no special ceremony, no specific venue, no priest and no witness was essential for a valid marriage. One unfortunate result of this prevailing informality was that the promise of marriage could easily be employed by any unprincipled man as a seduction technique.17 As a result, it does seem to have been widely regarded as a wise and useful precaution to have a witness present at any exchange of vows – in case of subsequent disputes.
Actually, although private and informal marriages were recognised, they were not greatly favoured by the Church. The ecclesiastical magisterium had been struggling for some time to impose a more orderly situation, and the medieval Church did already strongly recommend public marriage ceremonies, preferably preceded by the reading of banns,18 precisely in order to avoid the kind of marriage disputes which were wont to arise from clandestine exchanges of promises. As early as 1215 the Fourth Lateran Council had sought to generalise throughout Europe the system of publication of banns before marriage.19 Nevertheless, for several centuries the Church’s attempts to impose a more ordered situation largely fell on deaf ears, and informal and private marriages continued to be practised, as the surviving records of litigation in the English Church courts clearly demonstrate.
In time, however, this situation was set to change.
The failure of the medieval church to impose … its own religious ceremony as the one binding ritual to legitimate a sexual union [makes] the medieval approach to marriage and sex very different from that of seventeenth century England. The introduction of registers of births, marriages and deaths in 1538 was evidence of a tightening of both lay and clerical controls over the private lives of the population.20
Thus, both within the Catholic Church and outside it, from the sixteenth century onwards more formal regulations surrounding marriage were imposed. But such regulations cannot be applied retrospectively when judging the validity of medieval marriages.
In general the marriage rules which applied to medieval English monarchs – including Edward IV (reigned 1460–83) – still applied in the case of the early Tudor monarchs such as Edward IV’s grandson, Henry VIII (reigned 1509–47). These were the rules of the pre-Tridentine Catholic Church. In fact it was Henry VIII’s own conduct which was to considerably alter the situation in England. When England ceased to be part of Catholic Christendom, changes, impelled in the first instance by Henry VIII’s own specific matrimonial needs, began to be introduced into English Church law. Moreover, the fact that the head of State was now also the head of the Church introduced a degree of confusion as to where Church law ended and civil law began. Henry VIII abrogated the teaching of canon law at the English universities and thereafter lawyers who practised in the ecclesiastical courts had to be trained in civil law. As a result, slowly but surely marriage legislation ceased to be a matter for the Church. Of course, Church rules remained in force for the faithful, but in general marriage became increasingly a matter for civil legislation.
However, the historical picture is complex. While Henry VIII introduced notable changes – including a legal requirement
for the registration of marriages – he was not acting completely in isolation, or without precedent. The dichotomy between Church legislation and the law of the State had begun to manifest itself much earlier. We shall see shortly that William the Conqueror defied the papacy in the matter of his marriage – and ultimately got his own way. Later the future King John also entered into conflict with the Church over the question of his marriage – in his case unsuccessfully.
The remarriage of widowed English queens was subject to State laws as early as the twelfth century, and these laws were extended by specific and explicit parliamentary legislation in the fifteenth century. Marriages within the royal family generally were subject to the sovereign’s approval from a very early stage, and this particular feature of royal marriages would be progressively reinforced later in history (notably from the sixteenth to the eighteenth centuries).
The fifteenth century shows evidence of increasing State involvement in marriage disputes in several respects. Thus it seems to have been Parliament which took the lead in the moves to dissolve the marriage of Henry VI’s uncle, the Duke of Gloucester, to Eleanor Cobham (see below), although of course the actual annulment decision had to be taken by the Church. Likewise it was Parliament which adjudicated the disputed marriage of Edward IV at the end of the fifteenth century. Thus when Henry VIII used civil law in the matter of his own disputed marriages, and instituted a law requiring marriage registration, he was not being revolutionary. Rather he was following (and developing) existing precedents.
Royal Marriage Secrets Page 2