The Golem Speaks

Edward II in English Constitutional History

Published by Peter Mains on September 06, 2014 at 11:56 AM

William Stubbs likened the reign of Edward II to a play in three acts. Each act ends with a murder. In the first act, the king calls under the influence of Piers Gaveston, the king's counselor and favorite. Gaveston is murdered by the baronial opposition. The second act is a struggle regarding restraint of the crown under the Ordinances of 1311, a series of demands not unlike the Magna Carta or he Provisions of Oxford and Westminster. This act ends in the murder of Thomas of Lancaster, the leader of baronial opposition to the king. In the third act, the king is able to rule free of baronial opposition. His behavior incites rebellion by his queen, Isabella, ultimately leading to his overthrow and murder.

Piers Gaveston

As with Henry III, Edward relied heavily on royal favorites in governing. Such an arrangement deprived the barons of their important constitutional role of advice and consent to royal ministers. In the case of Henry, the favorites were entirely dependent on and so unwaveringly loyal to the king. In the case of Edward, Piers Gaveston was able to exert undue influence on the king.

Gaveston was a Gascon knight who had grown up with king Edward II. He had been exiled by Edward I after his son had granted Gaveston his inheritance of Ponthieu. After Edward I's death in 1307, Edward II immediately recalled his friend from exile. Gaveston was made the Earl of Cornwall and given Edward's niece, Margaret in marriage. In 1308, Parliament exiled Gaveston a second time.

In 1309, the barons presented the king with a list of grievances on behalf of the commons. These grievances condemn the king imposing illegal taxes, modifying the coinage, perverting justice and allowing his subordinates to do so. Edward addressed the grievances, hoping that the barons will be more inclined to allow the recall of Gaveston. The barons refused, but Gaveston returned anyway.

In March of 1310, the barons refused to meet in Parliament until Gaveston was dismissed by the king. When Parliament did convene, the bishops and barons presented a new list of grievances to the king. These grievances deal with offenses against the Church and the barons rather than the commons. The king had deprived bishops and barons of their rightful honors and income; he had effectively lost Ireland and Scotland; and mismanaged the funds appropriated for war and defense.

The Ordainers

In order to address the grievances, the barons demanded and Edward accepted government by commission until Michaelmas (September 29th) of 1311. This commission was known as the Ordainers.

The bishops selected two earls. The earls selected two bishops. These four men then selected two more electors, who could be either earls or bishops. The body of six electors now selected 15 more men to complete the commission.

These Ordainers drafted a series of Ordinances. Unlike the Provisions of Oxford, the Ordinances still appear in the Statutes of the Realm, despite having been repealed in 1322 The first six Ordinances were passed in 1310. Unsurprisingly, these ordinances address concerns directly affecting the Church and the barons rather than the commons.

The first Ordinance requires the king to uphold the privileges of the Church. This Ordinance is an affirmation of Article I of the Magna Carta ("that the English Church shall be free") and Edward's own coronation oath.

The second Ordinance requires the king to uphold the peace. Whereas Edward I had been the "Hammer of the Scots," Edward II's reign was marred by constant incursions by the Scots. Discontent of the barons posed another threat to internal security and peace. Finally, the "king's peace," his maintenance of law and order was now a fiction, as demonstrated by the complaint of the commons in 1309.

Ordinance III prevented the king from granting gifts without the consent of the barons. Ordinance IV required that revenues be paid into the exchequer, where they would be under the control of the Barons of the Exchequer. Ordinance V required that foreign merchants be arrested and made to give the barons an account of their dealings. This allowed the barons to assess the extent to which the king was circumventing the baronial right to impose taxes in Parliament (Magna Carta, Article XII). Ordinance VI reaffirms the king's obligation to observe established charters.

Taken together, these first six ordinances bind the king to observe his constitutional obligations, and strengthens the power of taxation held by Parliament.

In 1311, more Ordinances were drafted to bring the king under tighter control by the barons. Gaveston was banished again. The king was deprived of the power to make war or even go abroad without baronial consent. The great offices were to be filled by men appointed by the king with the counsel and consent of the lords. The king was forbidden from unilaterally tampering with the coinage. Parliament was to be held reguarly and a commission to be appointed to hear complaints of the people against the king.

These reforms bear similarities to those of the Provisions of Oxford and Westminster. The major distinction lies in that these reforms were on behalf of the barons. The commons played no part in the Ordinances.

Rise of Lancaster

In January of 1312, Gaveston was recalled yet again, despite the Ordinances. Besieged at Scarborough Castle in May, Gaveston was granted safe passage under the protection of Lord Pembroke to face Parliament. On route, Gaveston was captured by Lord Warwick. He was given a dubious trial and executed in the presence of Thomas, Earl of Lancaster.

The murder of Gaveston brought England to the verge of civil war between the royalists and the barons party under Lancaster. War was averted through negotiation in Parliament and the influence of the Church.

In 1313, French lawyers drafted a Bill of Exceptions to the Ordinances. They complained that the commission was in violation of the Magna Carta and the coronation oath. The barons retorted that England was a nation governed by custom and not by written law. For the time being, the Ordinances were allowed to stand.

In 1314, facing imminent invasion by the Scots, the king went to war without the consent of Parliament. This act violated Ordinance IX. Consequently, the king found himself going to war without the support of Thomas of Lancaster and his supporters, Warenne, Arundel and Warwick. The Scots defeated Edward at the battle of Bannockburn.

Having been humiliated and needing the support of the barons, Edward would reaffirm the Ordinances in September, 1314. The barons cleaned house by having the king dismiss his chancellor, treasurer and sheriffs. These officers were quickly replaced by new men appointed by Lancaster.

Pressing his advantage in 1315, Lancaster and Parliament had the king put on a daily allowance. In August, Lancaster was declared the commander-in-chief. In 1316, Lancaster was made the president of the royal council. For the time being, this position allowed Lancaster to do as he pleased with impunity.

This power was used primarily for the benefit of Lancaster himself rather than that of the nation. Facing another invasion in November, Lancaster refused to support the king in his war with the Scots. The Scots left the estates of Lancaster unmolested, further raising suspicion that Lancaster was collaborating with the enemy. When Berwick was captured by the Scots in 1319, Lancaster found himself potentially facing serious charges.

Lancaster offered to clear his name by undergoing an ordeal before Parliament, but then decided not to confront Parliament after all. With Lancaster moved to the periphery, Hugh le Despenser and his son, Hugh Despenser the Younger assume the role previously held by Gaveston. Lancaster objected to the lavishing of unapproved gifts upon the new favorites, a practice clearly forbidden by Ordinance III.

In 1321, Lancaster drew up a series of complaints against the Despensers. In July, these complaints were translated into formal charges against the Despensers, who were charged and convicted by their peers in Parliament. The Despensers lands in England were forfeited, and the Despensers were exiled.

Notably, representatives of the Church were absent from the Parliament. The Pope had already granted money to the king, and so there was no need to gain the assent of the Church to Parliamentary proceedings. In December, however, the clergy declared the conviction of the Despensers to have been illegal.

War broke out between the crown and the supporters of Lancaster. In March of 1322, Lancaster was captured at the Battle of Boroughbridge. He was subsequently convicted and executed as a rebel.

Death of Edward II

Having defeated his main rival, Edward was now at his strongest. He ruled with the advice of his favorites, the Despensers. In May of 1322, the Ordinances were revoked on the basis that the irregular commission lacked the authority to ordain them. This was the primary complaint in the 1313 Bill of Exceptions. Because the disagreement was primarily constitutional rather than substantive, Edward saw fit to republish many of the Ordinances as his own statutes.

The king and his favorites proved to be incompetent rulers. They alienated his queen, Isabella, who left for France with her lover, Roger Mortimer (who was also married). In France, the couple and their supporters plotted to overthrow Edward. In September of 1326, Isabella and Mortimer landed in England, ostensibly to avenge Thomas of Lancaster and hold the Despensers accountable.

Over-matched, the king fled. In October, Hugh le Despenser was hanged. Parliament agreed to appoint Edward III as "guardian of the realm" in order to fill the current power vacuum. For the time being, Isabella and Mortimer were the effective rulers of England.

In January of 1327, charges were drawn up against the now imprisoned king. He was charged with incompetence in governance; listening to evil counselors and rejecting good counsel; losing Scotland, Ireland and Gascony; injuring the Church and the barons through imprisonment, exile and execution; breaking his coronation oath; and, finally, demonstrating himself to be incorrigible. Parliament convicted Edward II by notoriety and declared his young son to be the new king, Edward III.

Edward was kept under confinement. Of course, Henry III had at one time been the prisoner of Simon de Montfort. Henry eventually escaped and defeated Montfort. So long as the king was alive, danger remained that he could reclaim his throne. To prevent this from happening, Edward II was murdered in September of 1327.

Constitutional Lessons

The stories of Piers Gaveston and the Despensers illustrates the folly of governance by royal favorites. Requiring that the king's royal council and other important officers be approved by the barons creates a balance between the national interests of the king and the more local interests of the barons. This requirement was a feature of the Paper Constitution of 1244 and the Provisions of Oxford of 1258, neither of which endured.

The failure of the Ordainers is a familiar one. The commission described in Article 61 of the Magna Carta never was able to act as a national grand jury. Neither did the commission created by the Provisions of Oxford command the respect needed to exercise authority over the king. These commissions all failed because there was a parallel organization that was seen as the legitimate instrument through which the estates could exercise authority: Parliament.

An important difference is that the Ordainers tried to exercise legislative authority, whereas the other commissions were attempting to exercise judicial authority. However, judicial and legislative authority were intermingled at this time. Parliament continued to exercise both legislative authority and judicial authority as the national high court. In 1376, the commons would assume the power of accusing public officials. Ordinance XL has created a commission to hear complaints against the king, but this commission failed as had its predecessors.

The story of Lancaster demonstrates the great difficulty in creating a stable, republican order. Simon de Montfort created a republican order that he hoped would be able to endure. Perhaps, given time, the Montfortian Republic would have grown into a sturdy government with the united support of the Church, the barons and the commonalty. A republic requires divided government, though. As both the leader of Parliament and the effective monarch, Montfort's Republic can also be viewed as a tyranny, despite the forward-looking reforms it embodied. Fortunately, many of these reforms would later be incorporated into English government, notably at the Model Parliament of 1295.

In the case of Cromwell, the Puritan Republic quickly became a dictatorship. With the crown and the lords deprived of power, the commons governed alone. Again, we have undivided government. A strong leader with a single, weak adversary can quickly become a tyrant.

Thomas of Lancaster was the most powerful man in Parliament. He was the commander-in-chief. As the president of the Royal Council, he was also, for a short time, the effective monarch. When Lancaster refused to go to war with the Scots in 1316, the king was powerless to compel him.

For a republican order to be stable, the national government cannot be entirely beholden to local interests. Neither can the central government be empowered to rule without regard to those local interests. Excessive concentration of power at the local level can allow a nation to be divided and picked apart by its enemies. Excessive concentration of power at the national level can lead to tyranny.

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