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English Legal
History
3/30/2009
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CONSTITUTIONAL DEVELOPMENTS 14TH c.—THE
FRAME OF GOVERNMENT
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1.
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How do law and society relate in this period?
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2.
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The 14th century
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a.
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William of Ockham (c. 1288 to c.
1348)
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b.
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Legal thought
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i.
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English common law: pleaders
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ii.
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Canon law: encyclopedists and conciliarists
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iii.
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Roman law: Bartolus and Baldus
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i.
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The Black Death (1348–9)
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ii.
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The Peasants Revolt (1381)
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d.
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Religion: John Wyclif (c. 1325–1384) and Jan Hus (c. 1372-1415), Juliana
of Norwich (c. 1342 to c. 1416) and the Beguines (flourished 13th and 14th
ceturies)
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e.
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English Kings who met disasterous ends
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i.
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Edward II (1307-1327)
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ii.
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Edward III (1327-1377)
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iii.
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Richard II (1377-1399)
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e.
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Chaucer (c. 1343–1400), Gower (c. 1330–1408), York Minster and the Percy
tomb in Beverly Minster
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3.
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A glimpse at the 15th century: Henry IV — 1399–1413; Henry V — 1413–1422
(age 35); Henry VI — 1422 (age 9 mos.)–1461, 1470–1471 (Lancastrian kings);
Edward IV — 1461–1470, 1471–1483; Edward V — 1483; Richard III — 1483–1485
(Yorkist kings)
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4.
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Crises of the 14th century (Chronology, Mats., p. VI–1)
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a.
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1311—Ordinances and the Lords’ Ordainers
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b.
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1322—Statute of York
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c.
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1327—The deposition of Edward II
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d.
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1341—The Stratford crisis
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e.
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1348–9—The Black Death
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f.
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1376—The Good Parliament
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g.
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1381—The Peasants’ Revolt
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h.
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1386–7—The Crisis of 1386–7
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5.
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Theory
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a.
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The articles against Gaveston (Mats., p. VI-2)
“Homage and the oath of allegiance are more in respect of the crown than in
respect of the king’s person and are more closely related to the crown than
to the king’s person; and this is evident because, before the right to the
crown has descended to the person, no allegiance is due to him. And, therefore, if it should befall that
the king is not guided by reason, then, in order that the dignity of the
crown may be preserved the lieges are bound by the oath made to the crown
to reinstate the king in the dignity of the crown or else they would not
have kept their oath. The next
question is how the king should be reinstated, whether by an action at law
or by constraint. It is not,
however, possible by recourse to the law to obtain redress, because there
would be no other judge than the royal judge, in which case, if the king’s
will was not accordant with right reason, the only result would be that
error would be maintained and concerned.
Hence, in order that the oath may be saved, when the king will not
right a wrong and remove that which is hurtful to the people at large and
prejudicial to the crown, and is so adjudged by the people, it behoves that
the evil must be removed by constraint, for the king is bound by his oath
to govern his people, and his lieges are bound to govern with him and in
support of him.”
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b.
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The Statute of York (Mats.,
p. VI-7)
“[§1] 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 did grant unto the prelates, earls, and barons of his realm that they
might choose certain persons of the prelates, earls, and barons and of
other lawful men whom they should be deemed sufficient to be called unto
them, for the ordaining and establishing the estate of the household (estat del hostel) of our said lord
the king, and of his kingdom, according to right and reason, and in such
manner that their ordinances should be made to the honour of God, and to
the honour and profit of Holy Church, and to the honour of the said king,
and to his profit and the profit of his people, according to right and
reason, and to the oath which our lord the king made at his coronation; and
whereas the archbishop of Canterbury, primate of all England, and the
bishops, earls, and barons chosen for the purpose, drew up certain
ordinances ... , 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 ... ; [§2] 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 (le poair royal) and contrary to the
estate of the crown (lestat de la
coronne), 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, [§3] 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] [§4] 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 concerning the royal power (poair roial) of our lord the king or of his heirs, or against
the estate of our said lord the king (lesat
nostre dit seigneur le roi) or of his heirs, or against the estate of
the crown (lestat de la coronne),
shall be null and shall have no validity or force whatever; but [§5] that
matters which are to be determined with regard to the estate of our lord
the king (lesat nostre seigneur le
roi) and of his heirs, or with regard to the estate of the kingdom and
of the people (lesat du roialme et du
poeple), 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.”
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6.
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Incremental Change—e.g., the lower clergy cease to come
to parliament (cf. Mats.,
pp. VI-10, VI-17).
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7.
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The Seals:
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a.
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12th century-chancellor-chancery-great seal
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b.
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13th century-wardrobe-privy seal
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c.
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14th century-the chamber-the secret seal-signet
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d.
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15th century-the council-privy seal-the secretary and
the signet
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8.
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Incremental change as seen in administration
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a.
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The household ordinance of Edward II (Mats., pp. VI-3 to VI-6)
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b.
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Household ordinance of Edward I (Mats., p. V-28)
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c.
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Hints of double-entry bookkeeping (Mats., pp. VI-19 to VI-21)
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d.
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Chamber finance (Mats.,
pp. VI-13 and VI-14)
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