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Statutes & Royal Ordinances, Edward II | | | [Emphasis Added] | |
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< | Reassertion of Royal Power Statute of York, 1322 | >
> | 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. | | | [Emphasis Added] | |
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< | 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 as a recognition of Parliamentary supremacy, and a constitutional recognition of the role of the “commonality” (or commons) who till that point had little substantive role in the process of law making.
To understand the significance of the Statute of York in English constitutional history (especially the aspect of legislative power) one must look at the role of the Parliament in the conflict between Edward II and the Barons. | >
> | 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. | | | | |
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< | 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.. | >
> | 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. | | | | |
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< | 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 commonality was only a bit part of the drama. The express intention of the statute was to secure royal supremacy, as the rest of the statute makes it amply clear. Moreover, 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 concern 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 a merely formal role as they ad used to and not emerging as a alternate centre of power, like the Barons, who were the more immediate enemies. | >
> | 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. | | | | |
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< | Neither was he proven wrong in his belief in his lifetime. Only when the social and economic conditions of the country changed, and democracy and republicanism became serious political issues, did these words get a new life. As one can say, it is not the words of law that make the world, but the world which makes the words of law what they are. However, this is a great example of how words gain whole new significance, and a political life of their own when the circumstances change. Especially in the hands of the Whig lawyers, these words served as one of the main constitutional arguments against absolute royal power and at the heart of the claim that all important legislation needed co-operation of the commons in a full parliament. | >
> | 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”. | | | | |
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< | More importantly, this also signified the shift of power from Ordinances to Statutes. From Edwrad II’s reign, though not by his express design, Ordinances would signify an administrative decree, while statutes, like that of York, would signify a more fundamental legislative act. The hierarchy of the two, and their jurisdictional separation, so to speak, as we are used to today, can be traced back to Edward II’s fight for power with the Barons. | >
> | 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. | | | | |
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> | 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. | | | | |
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The Rise and Progress of the English Constitution By Edward Shepherd Creasy | | | | |
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The Law and Custom of the Constitution By William Reynell Anson, Arthur Berriedale Keith
The Law and Custom of the Constitution By William Reynell Anson, Arthur Berriedale Keith | >
> | Private and Public Nature of Law I: Ordinances and Statutes | | | | |
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The Law and Custom of the Constitution By William Reynell Anson, Arthur Berriedale Keith | >
> | 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. | | | | |
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The Law and Custom of the Constitution By William Reynell Anson, Arthur Berriedale Keith | >
> | 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. | | | | |
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< | The King and the Law | | | | |
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> | 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. | |
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< | To get a better idea of the nature of Royal power especially with relation to the laws (especially statutes) it is instructive to look at some of the contemporary judicial decisions which dealt with that question.
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. | >
> | 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” | |
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< | What also came up was the fact that such a view is in clear violation of the Ordinances, which were still fresh (the case was sometime in the years 1313-1314) | >
> | 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] | |
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> | 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. | | | |
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