The Fears of Henry IV: The Life of England's Self-Made King (37 page)

The other most frequently cited explanation is equally problematic. Three chronicles – the continuation of the
Eulogium Historiarum
and the chronicles of John Hardyng and Adam Usk – refer to a Lancastrian belief that Edmund Crouchback, earl of Lancaster, was not the second son of Henry III but the first, and that because of his supposed imbecility he was set aside for the inheritance of the throne, and his brother, Edward I, was made king instead.
⁵³
But as contemporaries knew, Edward I was definitely the elder of the two boys. In early September Henry called together a team of lawyers and clergymen to investigate two questions: how to depose Richard and how Henry might claim his inheritance. One of the above-mentioned chroniclers, Adam Usk, was among them. As Usk made clear, there were many chronicles and other documents which showed that the Edmund Crouchback story was false.
⁵⁴
In addition, there was the unequivocal evidence of Henry III’s will, a copy of which remained on hand in the exchequer.
⁵⁵
Henry would have been left in no doubt that this claim was without foundation. So why did he stake his claim on descent from Henry III and not Edward III? Did he present a flawed claim to the throne?

The answer to this last question is not a straight yes or no, but it is much more of a yes than a no. Clearly there was an overriding reason why Henry could not claim the throne as the heir male of Edward III, in line with the settlement of 1376. We might speculate that he did not have the original document (which Richard had probably destroyed) but even if he did not, this cannot be the full answer because the official order of precedence in the royal charters of 1394 recognised Henry and all the male heirs of Edward III taking precedence over the Mortimers. In addition, one or two of those who had witnessed Edward III’s entail were still
alive.
⁵⁶
There was a far simpler and stronger reason why Henry had to forget about Edward III’s entail. It was legally invalid.

This point has not been made in the historical literature before, and so it needs to be explained carefully. In 1290 Edward I had made a settlement of the Crown in which he had stipulated that the throne should pass to his son Edward
and his heirs –
not necessarily just male heirs – in preference to any younger sons whom the king himself might yet sire.
⁵⁷
Furthermore, he clearly stipulated that his own daughters
and their heirs
should inherit in preference to his brother, Edmund Crouchback, and his sons. This could have been considered a legal precedent, so that not only would female heirs thereafter have been able to be queens in their own right, but a daughter of an elder son would have taken precedence over the son of a younger son. John of Gaunt had himself admitted as much in 1376 when he petitioned first parliament and then the council to decree that women could not transfer a right to the throne.
⁵⁸
By this reckoning, Edmund Mortimer should have taken precedence over Henry until Edward III drew up his entail in late 1376. However, if Edward I’s settlement of 1290 could have been legally supplanted by Edward III’s of 1376, it followed that it would in turn have been supplanted by any subsequent settlement made by Richard II. It is highly probable that, by April 1399, Richard had indeed made a settlement of his own.
⁵⁹
In such circumstances, Henry’s chief legal adviser – Justice William Thirning – would have strongly advised Henry against depending on Edward III’s entail for his claim to the throne.

The only legal avenue open to Henry was to question whether English kings had the right to appoint their successors. If they did, then Richard II’s settlement took precedence over Edward III’s, and Duke Edmund was the legal heir. If they did not, all of these settlements were irrelevant. In these circumstances, and with little time to spare, Henry cut the Gordian knot and opted for the latter interpretation of the law. He claimed the throne as the heir male of Henry III on the grounds that all subsequent settlements had been without a legal foundation, and that the original male-only law of inheritance prior to the reign of Edward I should be restored. It was the only way in which he could claim to be next in line to the throne.
⁶⁰

As a result of this, we can be sure that Henry’s claim was not wholly lawful, for it depended on the dubious assumption that kings had never had the right to entail the throne away from their male line of descent.
⁶¹
That is not to say it was
unlawful
– the subject was far beyond being legally black and white in 1399 – but it was a fudge at best, for never before had a king’s right to settle the throne on a specific line of the royal family been questioned. It is hugely ironic that, although Henry had believed all
his life that he and his father were Richard’s legitimate heirs – and, in doing so, had trusted a king’s right to appoint his successor – when it actually came to claiming the throne he was forced to do so in defiance of this very principle.

*

In all this business Henry was heavily reliant on legal advice, especially that of Justice Thirning. According to one account, when Henry suggested that he could solve the technical problem concerning his inheritance by claiming the kingdom by right of conquest, Thirning warned him that ‘this would arouse the anger of the entire population …’ because ‘it would appear to the people that he had the power to disinherit anybody at will, and to change the laws, establishing new ones and revoking old ones, as a result of which no one would be secure in his possessions’.
⁶²
He might have added that Henry would be guilty of perjury too, for he had sworn at Doncaster not to seize the throne by force.

Thus it was the lawyers who guided Henry’s actions over the course of September 1399. There may have been a meeting at the Tower between Henry and Richard on 3 September, at which Richard railed bitterly against Henry and the dukes of York and Aumale, declaring them all to be traitors and asking to be brought to trial.
⁶³
Certainly Henry summoned the royal council in order to discuss how to deal with Richard.
⁶⁴
The question of a trial was a moot one. Could a king be tried for treason? No, for the king was above the law, as the law proceeded from the king. But Richard was clearly too fickle to be allowed to keep the title of king. By 10 September it had been decided that he would be deposed.
⁶⁵
This decision raised another problem. Parliament was due to assemble on 30 September. When it did, the king’s presence was necessary to give it the status and power of a parliament. Obviously no one would allow Richard to take the throne when it assembled. But if the king did not attend, there was nothing to stop Henry’s enemies – or more particularly, supporters of the Mortimer claim to the throne – from leaving. Therefore, instead of following the precedent of 1327, and using parliament to force the king to resign, the council (led no doubt by Henry) decided to do the reverse. The king would be required to resign first, before parliament even assembled, nullifying the writs which had been sent out in his name. And then he would be deposed by a ‘parliament’, or representatives of the estates, acting in their own name.

On the evening of 28 September a delegation led by the earls of Northumberland and Westmorland and the archbishop of York, and including representatives of the barons, clergy, knights and gentlemen of
the realm, entered the Tower in the company of two lawyers and two notaries. They asked the king whether he would resign the throne. Richard’s response was measured; he wanted to see a copy of the terms first. The lawyers with the delegation produced the document and presented it to him. He said he wished to study it, and would give them a reply in the morning. The delegation departed, promising to return the following day.

The following morning they found Richard in an angry mood. He refused to abdicate. Exactly why should he, a king, resign his throne? And to whom? Should he resign it to his designated heir – Edmund of Langley – or to Henry, his conqueror? The lords presented him with further arguments. The chronicler who recorded the details of Richard’s outburst unfortunately did not record what these were, but it is possible that they threatened him with being declared illegitimate, either on the grounds that there were irregularities in the permission for his father and mother to marry or (more probably) because his mother was a woman easily linked with adulterous liaisons because of her first two marriages.
⁶⁶
Faced with some such dire prospect, Richard began to waver, and after a time asked the delegation to bring Henry to him, stating that he was willing, upon certain conditions which he would explain to him, to give up the throne.

Henry arrived in a large cavalcade that evening. The archbishops of Canterbury and York were with him, along with the bishop of Hereford, Justice Thirning, and many other abbots, priors, lords and lawyers. With this assembly watching him, Richard repeated that he would resign the throne if Henry agreed to observe certain conditions. Henry immediately replied that he would accept no conditions. Richard had to abdicate simply, and without argument.

The pressure on Richard was tremendous. He tried to put a brave face on his plight and assumed a cheerful countenance. He read aloud the whole of the abdication document. Certain passages must have caused him to feel angry and perhaps remorseful, such as ‘I confess, acknowledge and recognise and from my own certain knowledge truly admit that I have been and am entirely inadequate and unequal to the task of ruling and governing the kingdom …’ But he read it to the end. Then he assented, and signed the document, stipulating that he reserved the right to withhold from the grant certain lands he had purchased with which to endow a priest to pray for him at Westminster after his death.

Immediately clerks were brought forward to record the names of the witnesses. As this was done, Richard spoke again. It was impossible for him to renounce those special dignities of a spiritual nature which had
been bestowed upon him at his coronation, he explained. For example, he could not renounce his anointment. Justice Thirning answered, firmly stating that Richard had himself admitted in the renunciation to which he had just assented that he was not worthy or adequate of government. Richard, now a pathetic figure, replied that this was not true; it was just that he was not loved by the people. Justice Thirning reiterated the absoluteness of the renunciation. Richard smiled, and said nothing more on the subject. He simply asked to be allowed sufficient income to maintain himself honourably.

In that solemn, shattering act, a king was unmade. Henry left the Tower that night. He never saw his cousin alive again.

*

The following morning, between noon and one o’clock on Tuesday 30 September, Henry took his place in the great hall of the Palace of Westminster. It was the seat reserved for him as the duke of Lancaster, which his father had always occupied. But he did not do this humbly, as a mere duke; it was important for him to appear like a king if he wished to be accepted as one. The monks of Westminster had come out to meet him as he had arrived at Westminster that morning. They had sung responses as they accompanied him into the church to hear Mass. After the service, Henry was led in procession to Westminster Hall by the two archbishops, his own four sons and Sir Thomas Erpingham carrying a magnificent jewelled sword before him. This sword was ‘Lancaster Sword’, a new sword of state, being the one Henry himself had carried at Ravenspur. Behind him came the three Counter-Appellant dukes: Exeter, Surrey and Aumale. The whole of the yard outside was filled with people, thronging to catch a glimpse of Henry as he entered the hall.

The throne, draped in cloth of gold, stood vacant. Everyone present knew what was happening; the writs to this parliament had been withdrawn, on account of the king’s resignation. They were all aware that this was not a parliament but an assembly, and its sole purpose was the ratification of the old king’s deposition and the confirmation of the inheritance of his successor.

The atmosphere was exhilarating; a ‘frenzy’ gripped Westminster.
⁶⁷
As Thomas Arundel had not formally been reinstated as archbishop of Canterbury, it fell to the archbishop of York to open proceedings. He took his theme from Isaiah 51: 16 – ‘He has put his words into my mouth’ – and charged the assembly with a sense of divine responsibility as well as political momentousness. The lawyer John Burbach solemnly read out Richard’s renunciation of the throne. He explained that Richard had
resigned ‘cheerfully’ – no mention was made of the king’s initial refusal to abdicate – and stated that Richard had expressed a wish that Henry be his successor. Whether or not this was the case, there was no doubt that it was the will of almost everyone present that Henry be crowned. At that moment it did not matter whether he was first, second or tenth in line to the throne: he was the leader of the opposition and the hero of the hour. When Thomas Arundel stepped forward, and dramatically asked them whether they assented to the king’s resignation, he was merely giving the people the chance to express the mood of the whole country. ‘Yes! Yes! Yes!’ they all shouted, in loud and excited voices.
⁶⁸

When the calls for the king’s resignation to be accepted had died down, Thomas Arundel declared that, for the benefit and advantage of the realm, the specific wrongdoings and shortcomings of Richard’s government should be clearly set down and confirmed. Although it might be said that deposition was unnecessary in the light of Richard’s resignation, there was an awareness that Richard might at some point in the future claim he had acted under duress, and change his mind. He had revoked pardons to others; there was a good likelihood he would revoke his own resignation if he got the chance. So the lawyer John Ferriby stepped forward to read out a list of thirty-three charges against the king.