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An Analysis of the causes of the Wars and the course which they took.

Michael D. Miller

Appendix 1: The 1376 Charter
 

Professor Michael Bennett of the University of Tasmania made an interesting and intriguing discovery in 1997. Delving away at some very ancient and dusty papers,he came across a Charter signed by King Edward 111 in 1376,just a few months before his death in April 1377. This Charter attempted to introduce a form of the Salic Law into England, and took the shape of prohibiting any female, or her issue, from succeeding to the Throne of England.

From the background to this Charter, its provenance is easy to determine. The heir to the Throne had been Edward's eldest son, also Edward, the 'Black Prince' of Wales, but he had died after a long and debilitating illness on 8th June 1376 to the immense sorrow of all. His own son, the 9-year old Richard of Bordeaux, who was later King Richard 11, then became the heir to the Throne.

King Edward 111's second son was Lionel of Antwerp, Duke of Clarence, but he had died in 1368 leaving as his sole child his daughter Philippa. She had married Edmund Mortimer, Earl of March, and in 1374 she had already given birth to Roger Mortimer. Another son and two daughters were to follow. (At the time of the abdication of King Richard 11 in 1399, the descendant of Lionel of Antwerp and Phillipa who would have been most affected by the Charter's provisions was an 8-year old boy, Edmund, Earl of March. He lived until 1425 without ever ascending the Throne or even claiming any right to to do so.)

King Edward 111's third son was John of Gaunt, Duke of Lancaster, and his eldest son was the 10-year old Henry of Bolingbroke (later King Henry IV), a fine upstanding lad in whom his father took great pride and hoped for great things.

Just possibly, John of Gaunt may have been guided by altruistic motives in seeking to keep the succession to the Throne among the Plantagenets and away from the House of Mortimer. It seems much more likely that he was driven by the ambitious, arrogant and greedy traits of his nature when trying to cut Philippa and her successors out of the succession altogether, and in promoting his own son Henry to be next in line to the Throne after Richard of Bordeaux. It also seems likely that it was he who persuaded his father, by now senile and almost an imbecile, into executing this extraordinary document.

Assuming the authenticity of this Charter, at least two questions arise. Did it have any legal effect? In the 14th-century, this would have been an almost impossible question to answer, and the passage of six centuries has not made the task any easier. There had never been any written law on the succession to the English Throne, and previously there had never been any need for one. Since the Norman Conquest (and indeed before it), the rules of Primogeniture, by custom, had determined the succession, which meant that the eldest son at the death of his Royal father had inherited the Throne. If he was already dead, his own eldest son stepped into his place, and if there was no such son, then the succession moved to the dead King's second son and the same process was repeated. The position was very unclear where there were no males discoverable by this tortured process, but there was a surviving daughter. Could she inherit in her own right? There seems to have been no formal bar, only a marked disinclination to allow her to do so. There had only been one such case, when in 1135 Matilda had contested with Stephen her right to the succession, but this was settled by compromise only reached with great difficulty after some bitter fighting; some people were prepared to espouse Matilda's cause, but a compromise did not provide a legal precedent. There was however no apparent objection to such a daughter's son inheriting; hence in 1376, the grandson of Lionel, Roger Mortimer, could have become next-in-line to the Throne after Richard of Bordeaux. Since he could only trace his descent from Lionel through his mother Philippa, the clear intent of the Charter was to prevent him from reaching such an elevated position. [The question of a daughter's right of succession was only resolved in the 16th-century, when two Queens,Mary and Elizabeth 1,reigned in their own right as the daughters of King Henry VIII. This was however confirmed by Acts of Succession]

What King Edward III was purporting to do was to change the rules of Primogeniture by use of the Royal Prerogative.

It is true that the Royal Prerogative in the 14th-century conferred on the Monarch some very wide and sweeping powers, but did they extend to changing the Laws of God as many people saw the rules of Primogeniture to be? This could have been a fruitful source of dissention between constitutional, ecclesiastical and lay lawyers with only one certainty; there was no tribunal in England which could have given judgement. Perhaps the Church, in the persons of the two Archbishops, might have been induced to hear and to determine it. Perhaps also the Pope, as the Vicar of Christ, might have been willing to do so, but there was a multitude of objections to submitting such a matter to the jurisdiction of the Holy See.

Whatever the legal position may or may not have been,the political realities of 1376 were quite sufficient to debar Philippa and her son Roger from any thought of succession to the Throne. John of Gaunt must have been confident that King Edward III must have effectively done so, whether by legal means or otherwise, and certainly edward treated Richard of Bordeaux and Henry of Bolingbroke as his first and second successors when he bestowed the 0rder of the Garter on them both in a gorgeous ceremony in Windsor just a few weeks before his own death. [pages ] The second question is,what happened to the Charter?

That question seems to be easily answered if only by surmise. No lover of John of Gaunt or Henry of Bolingbroke, King Richard II suppressed it. So carefully did he hide it away that it had to gather dust for six centuries before it again saw the light of day. There are at least three instances where its existence, if known, would have had a determining, or at least a persuasive effect on events which occured during the Wars of the Roses or on those which led to them:-

1399

How much easier would have been the task of persuading Parliament to accept Henry of Bolingbroke as King in place of the newly abdicated King Richard II had the Charter been available to lay before it! Thomas Arundel was a highly intelligent churchman with an omniverous memory,and he may well have been aware of the Charter's existence; if so,he could not find it. Not having it available, no reference could be made to it, and it seems that it was not even mentioned when, on 30th September 1399,Parliament chose Henry of Boligbroke as King Henry IV. [pages ]

 1415

0n the eve of sailing for the Agincourt campaign, there was a conspiracy to displace King Henry V and to put Philippa's descendant Edmund.Earl of March on the Throne.

Had the conspiritors known of the Charter, they must have concluded that this was a hopeless cause. King Henry V was the eldest son of King Henry IV, and on the face of things, he was apparently the rightful King. [pages ]

 1460

Richard, Duke of York, also Philippa's descendant, tried to persuade Parliament to displace the weak and unsatisfactory King Henry VI and to place him on the Throne. He found that Parliament was extremely hostile to the suggestion,and instead readily acted upon King Henry IV's instructions to bend every nerve to find objections to Richard's claim. The Charter,which would have served this purpose admirably,was never used or even referred to, probably because by now it had faded from the memory of even the most enthusiastic constitutional lawyer. Parliament did however accept Richard as Henry's heir, something it clearly felt it had power to do. [pages ]

There is no need to examine the positions in 1461, 1484 and 1485 when respectively Kings Edward IV, Richard III and Henry VII were accepted by Parliament as rightful Kings. [pages ] The political realities may have dictated this on each occasion, but by 1461, with the precedents of 1399 and 1460 behind it, it was well accepted that Parliament, as the Supreme Court of the Land, had the power to select a King, particularly where the hereditary succession could not furnish him. By this time the 1376 charter had fallen into dissuetude; it had ceased to have any effect, legal or otherwise, and in part this must have been due to its long sleep beyond the ken of man.

Copyright Michael D. Miller 2003