Statutes & Royal Ordinances, Edward II

This is a work in progress

Edward II

Brief History:

Reign 1307 – 1327

Married Isabella, from the French Royal Family. The marriage would soon turn sour to the point that Isabella would plot and bring about Edward’s deposition.

The major conflict of his reign was against the Scots led by Robert Bruce where the English army suffered a series of reversals leading up to a decisive victory by the Scots in 1314.

However, the conflict that would have far reaching consequences for the constitutional history of England was of a domestic nature.

Baronial Opposition and the Ordinances of 1310-11

It was Edward’s political battle against the Barons that lays the stage for the constitutional developments that concern this topic. One could mark the decade of 1310 as the decade when the Baronial opposition was successful in gaining the upper hand. The decade began with the Ordinances of 1310-11 which imposed severe limitations on the authority of the King. Among other things, it stipulated that the King could not make war, leave the realm, make appointment to important posts, make grants of title without the consent of the Barons in parliament. The phrase in parliament is of great significance here. To read the intention of the Barons as that of establishing constitutional checks and balances would be anachronistic. The Barons did not have a “constitutional” plan as such, as one would understand it in the modern sense. Instead, for the them, the Parliament emerged as a political space in which they could successfully and effectively challenge and contest the King’s authority without indulging in all out military assaults every time. The parliament was not for the Barons an independent source of legitimacy and power. There was no principle of representation involved. It was a place where the Barons would gather together, and thereby have an effective political platform to challenge the King. It is in this context one has to understand the importance of the insistence in the Ordinances that the nobility was summoned to the Parliament “by right and not by the King’s grace”. The regularity and the transparency of the summons (in which lied the seed of the notion of Peerage, which still governs the House of Lords) was of crucial importance.

While the Parliament is associated in modern times as primarily as centre of legislative power, this is not what it meant for the Barons. Their main focus was administrative, and to a lesser extent judicial power. In none of these functions of the parliament did the commonality have a share, whose role was limited to assenting to legislation, to make grants for money and to present petitions – in other words, functions of mostly legislative in nature. Not a word was said about any of these functions in the Ordinances concerning the parliament. In other words, in the Baronial vision of the Parliament, as evidenced through the Ordinances, there was no significant role for the commonality to play.

However, despite their highly limited and strategic vision for the Parliament, the decade of Baronial political success had two major impact in how Parliament was to evolve. One was (and this becomes more significant in view of the Household Ordinances, which was aimed at the private sphere of the Monarch) to establish the Parliament as a space for “public” exercise of political power, as opposed to the highly personal nature of the Monarchy. It allowed for a setting where the exercise of state power could be made public, and for the opposition that implied a level of transparency and check. It also provided a sense of legitimacy (though, not in the modern sense of the word) which made it easier for the Barons to make claims against the King. The inherently public nature of the Parliament provided for the Barons a greater ability to successfully curtail the power of the King which would have been difficult, or at any rate much more troublesome, to achieve through sheer force. The biggest evidence of this lies in the fact that the biggest political successes of the Baronial Opposition in the decade of 1310s was achieved in a Parliamentary setting (most notably, the Lincoln Parliament of 1316). One should not undermine the importance of the military strength of the Barons in all this (after all, Thomas of Lancaster, the leader of the Barons, often brought in his own armed guards inside the Parliament), but the developments of this decade gave the Parliament a notion of legitimacy, and public exercise of power, both of which were crucial to its future development as the most powerful institution in the realm.

The second major impact was the emergence of the Parliament as an independent political sphere, no longer just another monarchical chamber. In the battle against the King, the Barons had a serious handicap. The King possessed a source of power and legitimacy that came to him by virtue of his lineage – by the mere fact of being King. What the Barons needed was a political stage were they could unify and a stage and one that was independent of the aura of the King. They partly identified, partly made the Parliament to be such a stage. The realized (and successfully put into practice) that by controlling the parliament, they could be controlling a sphere of political action that could be outside the King’s control. This freeing of the Parliament from Monarchical control, even if just politically (as opposed to constitutionally) was a move of great significance, resonance of which could be felt even in Edward II’s reign.

Attempts at Reassertion of Royal Power: The Coronation Oath Argument

There were different ways in which Kings would extricate themselves from the promises made. Edward I, for example, did so through absolution through a Papal Bull. Edward II though took a novel approach, and argued against the 1311 ordinances on the basis of the relationship of the Sovereign to the law. He especially argued that the Ordinances, and the limits the sought to impose on him, were violative his Coronation Oath (given below), especially the first and the fourth precepts. [Anthony Musson, Medieval Law in Context, Mancheter University Press, Manchester, at 239-240.]

CORONATION OATH (1308)

"_Sire, will you grant and keep and by your oath confirm to the people of England the laws and customs given to them by the previous just and god-fearing kings, your ancestors_, and especially the laws, customs, and liberties granted to the clergy and people by the glorious king, the sainted Edward, your predecessor?" "I grant and promise them."

"Sire, will you in all your judgments, so far as in you lies, preserve to God and Holy Church, and to the people and clergy, entire peace and concord before God?" "I will preserve them."

"Sire, will you, so far as in you lies, cause justice to be rendered rightly, impartially, and wisely, in compassion and in truth?" "I will do so."

"_Sire, do you grant to be held and observed the just laws and customs that the community of your realm shall determine, and will you, so far as in you lies, defend and strengthen them to the honour of God_?" "I grant and promise them." [Emphasis Added]

Reassertion of Royal Power: Statute of York, 1322

In 1322, soon after Edward II won his political and military victory over the Baronial opposition, he convened the Parliament at York to pass the Statute of York to repeal the Ordinances of 1311 and reestablish the absolute superiority of the Monarchy. The relevant portions of the statute read:

Whereas our lord King Edward, son of King Edward, on March 16, in the third year of his reign, granted to the prelates, earls, and barons of his realm ... ;[1] and whereas the archbishop of Canterbury, primate of all England, and the bishops, earls, and barons chosen for the purpose, drew up certain ordinances that begin as follows ... , which ordinances our said lord the king caused to be rehearsed and examined in his parliament at York three weeks after Easter in the fifteenth year of his reign ...; and whereas, through that examination in the said parliament, it was found that by the ordinances thus decreed the royal power of our said lord the king was wrongfully limited in many respects, to the injury of his royal lordship and contrary to the estate of the crown; and whereas, furthermore, through such ordinances and provisions made by subjects in times past against the royal authority of our lord the king's ancestors, the kingdom has incurred troubles and wars, whereby the land has been imperilled: [therefore] it is agreed and established at the said parliament by our lord the king, by the said prelates, earls, and barons, and by the whole community of the realm assembled in this parliament, that everything ordained by the said Ordainers and contained in the said ordinances shall henceforth and forever cease [to be valid], losing for the future all title, force, virtue, and effect; and that the statutes and establishments duly made by our lord the king and his ancestors prior to the said ordinances shall remain in force. And [it is decreed] that henceforth and forever at all times every kind of ordinance or provision made under any authority or commission whatsoever by subjects of our lord the king or of his heirs against the royal power of our lord the king or of his heirs, or contrary to the estate of the crown, shall be null and shall have no validity or force whatever; but that matters which are to be determined with regard to the estate of our lord the king and of his heirs, or with regard to the estate of the kingdom and of the people, shall be considered, granted, and established in parliament by our lord the king and with the consent of the prelates, earls, and barons, and of the community of the kingdom, as has been accustomed in times past. [Emphasis Added]

The statute became, in time, one of the most important in the history of English constitutional law. Of great importance, and which got a lot of attention from the future scholars, was the term “and the commonality of the realm” at the end of the statute. This was often viewed by future scholars and politicians (especially the Whigs) as a recognition of Parliamentary supremacy, and a constitutional recognition of the role of the “commonality” who till that point had little substantive role in the process of law making. The abovementioned phrase in the statute can be seen as a major concession to the commonalities. While such concessions have been made by Kings earlier from time to time for strategic purposes (including Edward’s father Edward I), this statute gave it permanency, and as would be argued by future historians and politicians, a constitutional validity to the right of the community to be consulted on fundamental matters which clearly concerned it.

However, it would not be in any ways correct to surmise from this that the intention of Edward II and his advisers who drafted the Statute was to establish the Parliament as a centre democratic power. The Statute was not in anyway progressive, as the Whig reading would suggest, but overwhelmingly Conservative, in the sense it aimed at reinstating, and conserving Monarchical supremacy that has been damaged by the decade of Baronial challenge -- as the major part of the statute makes amply clear. What Edwards was specifically concerned about is having unchecked and unfettered power over matters concerning his own person, estate, family and heirs. In the fractured Feudal nature of the British realm, this was of the central issue to him. The concession to the commons on the other hand was made regarding the “estate of the realm”. Here, it was not seen as threatening to his immediate concerns to atleast acknowledge the principle that matters concerning all must be approved by all.

In anycase, it is likely that he saw the commonality as playing little more than a merely formal role as they had used to and not emerging as a alternate centre of power, like the Barons, who were the more immediate enemies. The wording of the statute, which says that the matters (both regarding the estate of the king and the estate of the realm) was to be “established” by the King shows that the political initiative was to come from the King exclusively, and the power of the parliament was to merely “consent” to it. In 14th century, consent did not carry the republican overtones that it does today. On the contrary, the intention was to bring the Parliament, which had been so successfully hijacked by the Barons back into the Monarchical orbit – to make it an expressly royal institution. However, while the express intention of the Statute of York was to strongly reassert Royal supremacy both over the realm and over the parliament, the far reaching consequences were more interesting.

For one, the very fact that Edward and his counselors saw the need to go through the Parliament and a statute to undo the legal implications of the Baronial challenge speaks volumes. It shows that they realized the importance of the Parliament as a political arena tat was so successfully used against them by the Barons. Thus, a mere military victory (which they had already achieved) against the Barons were not enough. What they also needed was to secure the control of the Parliament, and insure that it does not fall into the hands of the Barons quite so easily as it did a decade back. Thus was the need to expressly put the Parliament in a central role in the Statute of York.

Of equal importance was the provisions regarding the commonality. While they were not, as the Whigs would claim, an acknowledgement of the absolute constitutional supremacy of a representative body, they were nevertheless an important advancement of the principle of representation in the medieval context. One of the main strengths of the Baronial control of the Parliament was the fact that the Barons could claim to represent the realm and its common interests. This gave them a potentially equal platform of legitimacy to challenge the King who also claimed to represent the realm in his very personhood. Thus, one of the political strategies of the King and his counselors was to cut off this source of legitimacy to the Barons. They attempted to do so by strengthening and regularising the rights of the “commonality of the realm” (that is, the lower house of the parliament) to present “common petition”.

This right must be understood in the context of the political landscape of the 14th century. The main threat to the King was the Barons. The “commonality” (not yet the commons, as they are known today) on the other hand consisted of knights burgesses, and a large numbers of lower clergy. It was a rather disunited bunch of men, with very little unified political purpose. Especially the clergy did not feel a deep sense of commitment to the parliament, which they saw as a secular institution and thereby neither binding nor demanding much from them. Clearly, for Edward II, this cumbersome body of men was not a political force that worried him, as opposed to the Barons. By elevating and formalizing the role of “common petition” as the representative plea of the realm he insured that the Barons would not have an easy access to the claim of representation any more. At the same time, while this change in the nature of common petitions was a significant development constitutionally, in Edward II’s reign it had little immediate significance in shaping legislation. Legislation would still be, in the years following 1322, almost entirely royal in nature and very little, if any of it, originated in the common petitions.

So, one was of reading the developments of Edward II’s reign is to see how the “commonality” gained political prominence not by being a party to the political struggle, but as a beneficiary of the struggle between the King and the Feudal lords. However, as in time, the economic and social power shifted from the Feudal class of the Barons to the bourgeoisie class, who populated the lower house of Parliament, the words of Statute of York, and the practices brought about by Edward II, would get a new life and new significance, in a way that the King and his counselors could not have imagined. In that respect, one has to recognize the significance of the developments that were put in motion during the reign of Edward II.

Private and Public Nature of Law I: Ordinances and Statutes

So, one way of reading the developments of Edward II’s reign is to see how the “commonality” gained political prominence not by being a party to the political struggle, but as a beneficiary of the struggle between the King and the Feudal lords. However, as in time, the economic and social power shifted from the Feudal class of the Barons to the bourgeoisie class, who populated the lower house of Parliament, the words of Statute of York, and the practices brought about by Edward II, would get a new life and new significance, in a way that the King and his counselors could not have imagined. In that respect, one has to recognize the significance of the developments that were put in motion during the reign of Edward II.

As has been mentioned earlier, one of the significant moves made by the Baronial opposition was an assertion for the need of public exercise of political power. There intention for this assertion was to make sure that they could exercise a scrutiny and check over the King’s authority. Significantly, when the King successfully wrested his authority back, he did not give up on this idea. One of the reason for this was, as we have discussed, the (perhaps begrudging) acknowledgement by the King and his counselors of the political potential of the parliament, and thereby the potential pitfall of abandoning it entirely. The other, perhaps more important reason was to ensure that the Barons cannot undo the work done by the Statute of York merely by force or another set of ordinances. They had to made to come through the Parliament (and the commonality), which the King now controlled. This is what explains the provision in the statute that all ordinances made by the “subjects” against the “estate of the crown” to be void; and the further, more significant provision that “but that matters which are to be determined with regard to the estate of our lord the king and of his heirs, or with regard to the estate of the kingdom and of the people, shall be considered, granted, and established in parliament”. In other words, all matters concerning the “estate of the kingdom and the people” were to be decided in a public manner and a public forum. Ordinances were still possible for the King to make, but that would concern it seems only private matters regarding his own estate, heirs and family. This potentially set up the division between Ordinances (and individual exercise of power by the executive), and Statue (a collective exercise of power by a body of representatives) that would take shape in time to resemble what we understand today by those terms. Furthermore, it also set up an implied hierarchy of these two legal instruments. Statutes (including the Statute of York itself) was to deal with more fundamental matters of law (constitutional, in our sense) while Ordinances were to deal with matters of more ordinary (administrative, in our sense) matters, including the management of the royal household and estate. The Statute of York could be seen as laying down the foundation of this notion of the two kinds of lawmaking which would be familiar to us in the modern times. What should be remembered though that in absence of checks and balances, this was not seen by Edward II and his counselors as any limitation on the royal power since it was the King who initiated statutes as well. Instead it was seen as a safeguard against future renegade Barons who could draft ordinances and then force the crown to accept them.

Private and Public Nature of Law II: The King and the Courts

“Sic voluntas hodie vincit rationem. Nam quicquid regi placuerit, quamvis ratione careat, legis habet vigorem” [Thus today will overcome reason. For whatever pleases the king, although lacking reason, has the force of law]. Vita Edwardi Secondi.

The discussion of private and public nature of the law in Edward II's reign would not be complete without taking a look at how the law was interpreted by the courts vis-a-vis its relationship to the King. The king being the fount of all justice, was also a judicial authority. It seems that Edward II personally did involve himself in the judicial decision making process if the matter had enough at stake for him to be involved. La Warre v. Bishop of Coventry (attached) mentions adjournment for further royal deliberation.

So does King v. The Prior of the Hospital of St. John of Jerusalem (attached).

However, sometime the King would intervene to instruct the courts to act in a way that would be expressly violative of a statute, and that did not go without protest. In Scoland v. Grandison [Attached] the counsel for the defendant, says that his client need not answer to the writ since it was presented in violation of the procedure laid (not on the day provided for) by statute. The judge note that they were under direct order from the King to allow the writ. The interesting (and relevant for our purpose) exchange happens on page 175-76, where to the Counsel’s contention that the statute in question was made by the “common counsel of the Realm”, and therefore should not be overridden by a simple directive of the king. However, the judges responded that the king’s command was at par with “common counsel” What also came up was the fact that such a view is in clear violation of the Ordinances of 1310-11, which were still fresh (the case was sometime in the years 1313-1314)

Similarly, in the case of Horneby v. Abbot of Croyland the question came up whether certain actions were in violation of the Magna Carta. The response of the judges was that since they were acting in King’s stead, the have to give weight to the king’s wishes (which were conveyed through a letter) even if it goes against the principles of Magna Carta. [Attached]

These cases then illustrate the ambiguous nature of the constitutional developments in Edward II's reign as has been discussed earlier. They show that it would be wrong to claim that there was an ascendancy of the idea of public law as a successful counter to private or individual assertions of legal power by the King. At the same time, as some of the arguments in these cases illustrate, the developments in this time made it possible for enterprising lawyers to make those claims. In time, as the socio-political conditions would change, so would the strength of these arguments.