"As the previous chapter shows, Richard II did not feel bound to recognize the provisions of Edward III's entailment. Nevertheless he seems to have observed the principle of exclusively male primogeniture, recognizing Henry of Lancaster as having precedence over Roger Mortimer from 1394-98. He also elevated his uncle, the duke of York, to the position of heir apparent. There the question is: did he formally recognize York in a settlement of the throne? Although no such document exists today, there is good reason to believe that one was drawn up. The first piece of evidence is Henry IV's failure to cite Edward III's entail when claiming the throne in 1399. As a result of Adam Usk's chronicle, we know there was a high degree of confusion as to the process whereby Henry IV could claim the throne. Even if Henry did not have possession of Edward III's actual letter patent - which Richard II might have destroyed - there were men living who could have attested to its creation. It is likely therefore that there was a legal reason why it was not used. One such legal reason could have been a more recent entailment by Richard II, which would have rendered it void. There is evidence in Jean Creton's chronicle that Richard's intentions for the throne were widely known in court circles (discussed below). Given the Scottish, French and English entailments of the throne, it would have been very unlikely for Richard to have drawn up his will in April 1399 and not made provision for the inheritance of the throne.
(...) whether they would prefer any of these three - Edmund of York, Edward or Richard of Conisburgh - to be king instead of Henry. This not only suggests that a settlement had been drawn up by Richard II which named York as his heir but that it also named York's two sons. It also suggests it was known well enough for its contents to be put to the test. It met with disapproval.
Given all these circumstances, it is very likely that Richard drew up a settlement of the throne in conjunction with his will in April 1399, in much the same way as Edward III had drawn up his entail in conjunction with his will in October 1376. In both cases, the royal settlement was not treated as permanently binding.
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It may seem obvious why Richard II's settlement of the throne was set aside in 1399; but the reality is that the mechanics of that act were both complicated in their own right and also led to further complications. Clearly Edward III's settlement had led John of Gaunt and his son, Henry of Lancaster, to believe that, in the event of Richard not having a son, the throne would pass to the house of Lancaster. Henry's return to England in 1399 and his success was only made possible by the agreement of the one person who could have rightfully challenged him for the title, Richard's designated heir, Edmund, duke of York. Edmund Mortimer, earl of March, was a mere eight-year-old and in no position to fight. Thus Henry's path to the throne was unopposed. But when it actually came to claiming his inheritance, he ran into difficulties. First there was the question of whether Henry should be recognized as the heir, and rule the kingdom while Richard was allowed to continue as nominal king for his lifetime. The situation in Scotland may well have been a precedent for this, Robert II having been removed from power in 1384 and left as titular king for the last six years of his life, real power passing to his son and heir, the future Robert III. However this possibility was ruled out by September 10, when official documents stopped being dated according to Richard's regnal year. With parliament due to assemble on the 30 September, there was a limited time to find a solution to the problem of how to make Henry of Lancaster a legitimate king.
As it well known, Henry relied heavily on his legal advisers, especially Justice William Thirning, who dissuaded Henry from claiming the throne by right of conquest. Equally well known is the fact that Henry set up a committee to discover whether his maternal ancestor, Edmund Crouchback, was in fact the elder brother of Edward I. Hardyng states that he heard from the earl of Northumerbalnd that Henry IV had produced a chronicle on 21 September 1399 that claimed Edmund Crouchback was actually the elder brother. It is likely that he did so, for the matter was checked in 'all the chronicles of Westminster and of all the other well-known monasteries' by a committee at this time. Adam Usk, who served on this committee, repeats the various sources he found for dispelling any possibility of the story being true. There can be no doubt therefore that Henry was informed that it was a myth. And yet this belief is often stated as the reason why he claimed the throne as the heir of Henry III. Herein we have a objective inconsistency: we have good information that Henry was looking for a legal basis on which to base his claim to the throne, and we have good information that he was told the Edmund Crouchback story was false. So it does not make sense for historians to claim that, despite the legal advice, he went ahead ad based his claim to the throne on a known falsehood. It would have been better for him if he had claimed right of conquest.
Given the findings above, there is every likelihood that in 1399 there was some other reason why Henry IV mentioned Henry III in his claim to the throne. It could be that Thirning knew that Henry III had entailed the throne of England on his heirs male. In support of this it may be noted that, when Richard of York claimed the throne in 1460, the lords put forward more than one entail in support of the Lancastrian claim: 'dyvers entayles made to the heires male as for the corone of Englond'. Obviously the 1406 parliamentary settlement was one. But how many others were there? The entailment of Edward I would not have helped the lords' case, nor would Richard II's settlement (had it survived) So there were only two other English settlements that can have been relevant, so far as we know and suspect: those of Edward III and Henry III.
Stronger evidence that the Lancastrian claim depended on an entailment drawn up in the thirteenth century lies in the fact that Henry IV is noted in several sources as claiming the throne as the heir male of Henry III. There are two forms of evidence for this: implicit and overt. The implicit evidence lies in the wording of the Parliament Roll for 1399, which states that Henry issued a 'challenge' for the throne (in English) 'in as much as I am descended by right line of the blood from the good lord King Henry the third'. Reference to this 'right line of blood' implies that he believed that his was the pre-eminent claim, not because h e was the heir general of Henry III (which he was not - unless one believes the Crouchback legend, which even Adam Usk had given short shrift) but because he was the heir male. Thus the official line itself supports the 'heir male' aspect of his claim. It is worth noting that the official wording of Henry's claim is closely followed in a number of contemporary accounts, both in English and in Latin (tanquam per regium sanguinem veniens de rege Henrico) suggesting the official version was included in a newsletter circulated at the time.
(...)
One thing revealed by Adam Usk's details concerning the Crouchback legend is the level of desperation felt by Henry and his advisers in September 1399. It was no doubt this desperation that forced Henry to resort to what was apparently an unorthodox claim from a long-dead king. But as hinted at above, this unorthodox claim was a highly sophisticated one. It solved two problems: how Henry could claim the throne of England and how he could maintain the English claim to the throne of France at the same time, the latter having already passed through the female line in 1328.
This needs some further explanation as it would naturally strike any reasonably informed historian that Henry IV claimed the throne of France as the heir general of Philip IV (in preference of the heir male) at the same time claiming that of England as the heir male of Henry III (in preference to the heir general). He could not have it both ways, surely? Indeed, several historians - including myself - have stated that, if Henry's claim to England was justified, then his claim to France was wholly spurious. It turns out that we have probably not given Justice Thirning sufficient credit: Henry could have it both ways. If Henry III had outlined the rules of the succession exactly as the Scots did in 1281, then Henry IV's claim was good in respect to France as well as England. To start with England: the throne of England could not pass through Lionel to Philippa, and from her to the Mortimer family, because Lionel predeceased his father and the principle of representation only applied if the grandchild was male. It did not matter that Philippa had a son, Roger Mortimer: the 1281 model clearly ruled that the principle did not apply in the case of a female grandchild. Thus the male heir after Richard II's death should have been John of Gaunt's eldest son and heir, Henry IV. The elegant part of this solution was that the same rules could be applied to pass on to Henry the claim to France legally. The 1281 model indicated that, despite the emphasis on male primogeniture, the daughter of a king passed on a claim to the throne if she had no brothers. This was the basis on which Margaret of Norway was acknowledged as heiress to the throne of Scotland in 1284 and proclaimed queen in 1286, and on which Edward III claimed the throne of France in 1328, and Robert II inherited the throne of Scotland in 1371. However, Edward III's claim to the throne of France could not be conveyed to the Mortimers by his granddaughter Philippa for the same reason as above: the principle of representation did not apply in respect of female grandchildren. Therefore it is likely that these rules for the succession - extant now only in the form outlined by the Scots in 1281 but possibly formulated at an earlier date by Henry III - were the legal basis for Henry IV to claim he was rightfully king of both England and France.
The complexity of the problem would explain why, although royal family trees were produced in parliament to explain his descent, the exact details were not recorded by chroniclers. The matter was too complicated; only the essential details were important at the time. It would also explain why few people in England understood Henry's claim. As noted above, male entail itself was a particular feature of aristocratic life - it lay outside most normal landholders' experience, so it was far beyond the experience of most citizens, clerics, monks and the peasantry. A study of feet of fines in four countries has revealed that, in Richard's reign, only 1 per cent of grants were in tail male. Thus the sense of 'rightness' about a male-only entailment was shared only by a very small proportion of the population. As for the necessary deviation from the common law - implicit in the indivisibility of the Crown - this was probably understood by even fewer people. Finally, the technical detail of the principle of representation being applicable only in the case of male grandchildren would have gone over the heads of most contemporaries. If the reckoning put forward here is correct then Justice Thirning permitted Henry IV to claim the throne of England and the lordship of Ireland, together with the titles of Scotland and France, on a legal basis which very few people in England could have understood and which would have alienated the majority, who believed the common law should apply to succession in the royal family.
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More generally, it is clear that the accession of King John had consequences for understandings of the rules of succession right across Europe. It set in motion a process whereby kings and independent dukes ad counts had to consider the succession law in their domains. The principle of representation was rejected altogether by Baldwin of Flanders in 1200. It was not rejected in England or Scotland, both of which kingdoms seem to have accepted the principle in relation to males but not females after 1216. This is the reason why Edward III paid no attention to the succession potential of the marriage of his granddaughter Philippa. The common law did not apply, as every monarch had realized, even Edward I. In permitting the principle of representation in respect of females, Edward I's settlement was the exception, not the rule, and even this was outside the common law as it implied female primogeniture, not division among co-heiresses. This is no doubt why Gilbert de Clare was required to swear an oath to uphold the terms of the settlement before he married the king's younger daughter. Not until 1404 would another settlement be drawn up that tolerated the idea that the principle of representation should apply in the cases of females, and even then it was contentious, as the two cases on the 1406 Parliament Roll reveal. No doubt the second of these, agreed on 22 December 1406, entailing the succession on Henry V and the heirs of his body, was one of the documents produced in defence of the Lancastrian claim against the duke of York in 1460. Very probably a copy of Edward III's entail was another. But behind them lay a royal tradition of considering the touchy business of the inheritance - a tradition which has now almost entirely vanished."
- IAN MORTIMER, Medieval Intrigue: Decoding Royal Conspiracies