THE LAW’S GREATS

Edward I: The Law’s Long Stride

(1239-1307 A.D.)

“Whereunto shall the noble Edward be compared?
. . . . A lion by pride and fierceness,
He is by inconstancy and changeableness a pard . . .”
—THE SONG OF LEWES¹

INTRODUCTION

“Conflict is Justice, and all things come to pass in accordance with conflict,” wrote the Greek philosopher Heraclitus.² The precise relationship between conflict and justice can be debated by philosophers, jurisprudents, and historians. But what appears uncontestable is that fundamental institutions of our constitutional form of government were spawned organically out of conflict, specifically that conflict between the royal and baronial power in late medieval England.³ A modern historian of political philosophy might paraphrase Heraclitus and say, quite accurately with respect to the United States Constitution which borrowed so heavily from the unwritten constitution of England, “Conflict is Constitution.”

The battle between the royalist and baronial partisans in medieval England, a battle which played so large a part (albeit indirect) in forming our Constitution, was a complex one. It involved the tension—not ever fully resolved where the law (like the peoples whose life the law orders) lives and breathes—between authority and freedom, i.e., the power of the ruler versus the rights of the ruled. One very important settlement of that battle is symbolized—nay even personified—by the Magna Charta which the great jurist Coke called “such a fellow, that he will have no sovereign.”⁴ That battle is also typified by the characters of King Henry III, his son Edward I, and the Sixth Earl of Leicester, Simon de Montfort. In Hegelian terms, King Henry III is the thesis of absolute rule, Simon de Montfort the antithesis of checked or representative rule. In Edward I, the thesis and antithesis find a synthesis, and his role in that process makes him one of the Law’s Greats.⁵ Edward I’s role in developing the English constitution—particularly the role of Parliament—and his reliance on legislation as an instrument of the governance of his realm is what lands this English king’s profile in a medallion in the U.S. House of Representatives. Edward’s adept use of the statute and the royal courts had the additional effect of secularizing and professionalizing the English bar. These contributions—to the constitution, to legislation, and to the legal profession—entitle Edward I to be listed among the great benefactors to the Rule of Law.

Edward’s Birth and Early Youth

Born at Westminster in 1239, Edward was the eldest son of King Henry III of England and his queen, Eleanor of Provence.⁶ From the historical evidence we have, Edward appears to have been an unruly—even violent and irresponsible—youth, and much of his education appears to have focused not on the arts of governance, but on the arts of hunting, falconry, and of tournaments and war. After describing a gratuitous attack by Edward and his friends upon a young man which resulted in the latter’s loss of an ear and eye, the chronicler Matthew of Paris commented with chagrin: “If he does these things when the wood is green, what can be hoped for when it is seasoned?”⁷ Good old Friar Matthew need not have worried so. Though Edward never quite lost his violent temper, he seasoned well with the coming of age and the shouldering of responsibilities. He became by common acclaim one of the greatest of English sovereigns, though the Welsh and the Scots who pine for self-rule may take umbrage at this judgment.

Edward’s responsibilities started early. When Edward was ten, his father conveyed to him the duchy of Gascony, which is located in the southwestern region of modern day France.⁸ In addition to Gascony, Henry III also endowed Edward with the Isle of Oléron,⁹ the earldom of Chester, and rights to rule a large part of Ireland, parts of Wales, the Channel Islands, and a number of English towns. In 1254, Henry III arranged for Edward’s marriage to Eleanor of Castile, sister of Alfonso X el Sabio (“the Wise”), king of Castile and Leon.¹⁰ Edward sailed to Spain and was knighted and married at the famous Monastery of Las Huelgas in the Castilian kingdom’s capital city of Burgos.¹¹ Though arranged for political ends, the marriage was apparently a happy one, as Eleanor bore Edward at least 14 children, and from the evidence he remained faithful to her. Edward grieved deeply upon the death in 1290 of his chère reine, building the famous series of twelve “Eleanor Crosses,” one for each place her funeral cortège stopped, and which have been described as “the most elaborate series of monuments ever constructed for an English king or queen.”¹²

The Baronial Conflict

Edward was not to enjoy any honeymoon, as the burdens of ruling soon thrust themselves upon his shoulders. Henry III’s insensitive rule over the Welsh caused the Welsh, led by Llywelyn, to rebel in 1256.¹³ Henry III attempted to reassert control, but by 1257 the Welsh campaign had proved disastrous for the King. The Welsh obtained a string of victories against the royalist forces, and the inability to deal with the rebellion presented the King with a political crisis and the need for additional funds. Moreover, King Henry, who incorrigibly dabbled in foreign adventures, had committed himself to fund a war in Sicily so as to procure the crown of Sicily for his second son, Edmund Crouchback, surely an expensive, even (alliteratively) a “fantastic folly.”¹⁴ Henry III summoned a council in 1258 to discuss the Welsh crisis, the Sicilian venture, and to authorize taxes to fund his plans. Unfortunately for Henry III, the council was ill-timed: the temperament of the greater part of the summoned earls and barons was not one of cooperation, but of resistance.

The reasons that prompted the baronial demands for reform, which eventually resulted in their outright rebellion, were complex and multifarious. The failure of the King’s Welsh policies, and the King’s intermeddling in the Sicilian venture (which was viewed with great suspicion by the nobility) were sure to demand significant funding. The thought of funding these pet projects gave rise to discontent among the nobility. Additionally, the King’s half-brothers—the Lusignans: William, Guy, Geoffrey, and Aymer—had gained considerable influence in his court, and this alien (Poitevin) influence was despised by a large number of the English barons.¹⁵ Also, widespread disaffection existed with respect to the King’s local governance of the shires and the abuse meted out by the sherrifs and other regal officials, an area to which the barons were sensitive and which cried for reform. Finally, the barons themselves faced economic difficulties as a result of a disastrous harvest in 1257.¹⁶ As a result of a combination of these factors, a large number of the earls and barons (the lay magistrates) united in their resistance against the King. This baronial revolt was led by the King’s brother-in-law, Simon de Montfort.

Faced with the imperious need for funds, the King was compelled to submit to the baronial demands for a council or parliament of twenty-four to be selected and meet at Oxford to discuss reforms.¹⁷ Confronting little option under the circumstances, both the King and Edward swore to be bound by the decisions of that parliament.¹⁸ At the Oxford Parliament (1258), also denominated as the “Mad Parliament” (no doubt by royalists; as it is said: history is written by the victors), the barons forced Henry to accept a scheme of government called the Provisions of Oxford. The effect of these provisions was that “all real power had been taken from the king.”¹⁹ The Provisions of Oxford established a Privy Council or consultative body—the Council of Fifteen—whose task it was to advise the king on ministerial appointments and other matters of local administration.²⁰ Parliament was to meet three times a year and monitor the activities of the Council of Fifteen.²¹ Additionally, intent on weakening the King’s ability to put up armed resistance, new wardens of some of the King’s castles were appointed.²² The Provisions were translated into Latin, law French, and—in an interesting departure for legal instruments of the time—English, and circulated around the realm.²³

The Baronial Wars

Despite his oath consenting to the Provisions, King Henry III was in no mood to let the barons rule England. The tension between the two parties was only to get worse. After biding his time, Henry obtained letters from the Pope in 1261 absolving both him and his son of their oath to the Provisions of Oxford, presumably on the grounds they were obtained under duress.²⁴ Renewed hostilities between the baronial and royalist parties eventually led to skirmishes and threatened to erupt into civil war. In an effort to resolve the growing quarrel, the baronial and royalist parties agreed to have the saintly French king Louis IX arbitrate.²⁵ Louis IX’s decision (known as the Mise of Amiens) exonerated the position of Henry III, annulled the Provisions of Oxford, but urged that Henry III pardon those who defended the Provisions.

As might be expected, the barons rejected Louis IX’s decision, and the country quickly lapsed into disorder and war. Though initial skirmishes went in favor of the royals, the royalist party suffered a serious setback at the Battle of Lewes (May 14, 1264). At that battle the royalist forces were routed, and, what was worse for the royalist cause, King Henry III and his son Edward captured.²⁶ Slightly modified, the Provisions of Oxford were re-confirmed in the resulting agreement between the parties, a document called the Mise of Lewes.

Under the Mise of Lewes, de Montfort gained de facto control over the governance of England. In January 1265 de Montfort summoned, without royal approval, the so-called “De Montfort’s Parliament.”²⁷ Though summoned in the King’s name but without his consent, De Montfort’s Parliament was the first at which knights and burgesses participated, and thereby represented a substantial broadening of representation beyond the aristocracy. De Montfort accomplished this innovation by summoning the shires (counties) throughout England and select boroughs to send two representatives to the parliament. Significantly, the representatives were to be determined through elections.²⁸ According to some historians, the germ of the British House of Commons and our House of Representatives and the democratic right to vote for legislators is to be found in De Montfort’s Parliament.

Two events in particular caused de Montfort’s efforts at reform to stall and eventually fail. First, the captured Edward managed to escape from the clutches of his baronial custodians. Second, the earl of Gloucester, Gilbert de Clare, an important supporter of the baronial cause, defected to support Edward I. The freed Edward and the turncoat Gloucester then joined forces:

The royalist and baronial forces joined battle at Evesham on August 4, 1265. The more numerous royalist troops gained an element of surprise when they advanced under captured Montfortian banners. When the ruse was discovered, and de Montfort recognized his desperate plight, one chronicler reports him to have said:

As de Montfort predicted, the Battle of Evesham was a slaughter. Though the Montfortian forces fought bravely, they were overcome—even de Montfort himself. He was slain, together with his son Henry. His other son, Guy, was captured. De Montfort’s body was mutilated: his head and genitals were cut off.³¹ And, as if that were not enough, as a further ignominy, he was denied Christian burial.

After a number of mopping-up operations, the last hold out of baronial rebels—the Isle of Ely—surrendered in the Summer of 1267. England again saw peace, or, in the eyes of those who did not write the histories of England, was made subject to tyranny.

Taking the Cross

Having pacified the nobles and established peace, in June 1268, Edward I took the cross (i.e., agreed to go on crusade) and, after lengthy preparations, went on Crusade to Tunis in 1270 accompanied by his wife Eleanor and a force of less than 1,000 men.³² Ruling from Egypt, the able Mamluk sultan Baibars³³ had decided on a policy of expansion, taking Caesarea, Arsuf, the castle of Safad, Jaffa, and Antioch.³⁴ The crusaders aimed to check Baibar’s aggressive policy and protect the Christian presence in the region. When Edward I arrived in Tunis, the leader of the Crusade, St. Louis IX of France, had died of ague,³⁵ and the Crusade he spearheaded was in the throes of being abandoned. Edward spent the winter in Sicily, and then sailed his own ships in May the next year to Acre. At Acre, Edward I besieged the Islamic occupants, finally relieving the town. In order to increase his effectiveness, Edward tried to enter into a treaty with the Mongol Il-Khan Abagha to join forces against Baibars, but was unsuccessful.³⁶ Faced with what he viewed to be a hopeless situation, the crusaders entered into a ten-year, ten-month, ten-day, ten-hour truce with Baibars at Caesarea.³⁷

While on crusade, Edward was attacked by an assassin with a poisoned knife. It is said that Edward was saved by his wife. Eleanor had the presence of mind to suck the poison from her husband’s wound.³⁸ After having survived the attack, Edward spent a long time convalescing. Finally, late September 1272, Edward I began his journey home. After landing in Sicily, Edward I learned that his father had died, and he was King of England.

BY THE GRACE OF GOD, KING OF ENGLAND

“The first half,” of Edward I’s reign as Professor Stubbs neatly frames it, “was occupied with legislation and with the war in Wales, the second with constitutional development and war with France and Scotland.”³⁹ Accordingly, Edward’s efforts in Wales, his legislative enactments, his war with France and Scotland, and his constitutional contributions will be addressed.

Conquest of Wales

One of the more important achievements of Edward I was the conquest and settlement of the principality of Wales, a lengthy process of campaigns, treaties, uprisings and rebellions and their suppression, sieges, battles, and wars which lasted from 1276—when Edward I first declared war against the prince of Wales, Llywelyn ap Gruffydd—through 1282, when Llywelyn was killed at the Battle of Irfon Bridge near Builth Wells and the power of the Gwynedd principate destroyed.⁴⁰ Edward I appointed his first-born son Prince of Wales, a title that still accrues to the first-born male heirs to the English crown. England’s conquest over Wales was punctuated and secured by his construction of a number of castles, the larger part of them constructed by the Savoyard mason James of St. George and famous for their round towers, concentric design, and rugged beauty. The conquest of Wales was not fully completed until 1295, when Wales’ settlement and colonization by the King’s supporters, and the imposition of English law and administration—with due regard for Welsh custom, and suppression of sporadic rebellions, was finally complete.⁴¹

Contributions to Law

By common consent among legal historians, Edward I’s importance in the history of legislation and the common law cannot be overestimated.⁴² Edward I stood at the cusp between the ancien régime economique of feudalism and the nouvelle régime economique of mercantilism. His legislation—in some ways conservative, and in other ways progressive—appeared to find a compromise between the economic interests of the land-based magnates, which were based on lands and rents, and the economic interests of the merchants and townsmen, which were based upon trade and money. More than his ability to compromise the varied interests of his realm, his skillful use of legislation established a model for the role of legislation in the ordering of society. Edward I’s efforts in promoting the jurisdiction of his royal courts, to the detriment of ecclesiastical courts, baronial courts, and myriad other competing courts also advanced the cause of the common law and its custodians, the lawyers.⁴³

Legislation

Edward I’s coronation was followed by an “extraordinary burst of statutory legislation,”⁴⁴ dealing with a wide breadth of topics. In ruling England, instituting rational reforms, and enforcing the nation’s laws, Edward is noted for his efforts. in obtaining information on how the country was governed at subordinate levels. He aquired this information appointing commissioners to conduct frequent inquests through local juries, the most famous being the inquest of 1274-75 that resulted in the Hundred Rolls.⁴⁵ As a result of these inquests “[n]ot since Domesday Book had royal officials discovered so much about England.”⁴⁶ The findings of these inquests were used to institute judicial proceedings against local officials or the nobility who abused their power. The information obtained from the Hundred Rolls and other similar inquests were also used to design new legislation.

Among Edward’s legislative landmarks are the (three) Statutes of Westminster, the Statutes of Mortmain, De Donis, Quia Emptores, Circumspecte Agatis, and the Statute of Merchants. In addressing Edward I’s wide-ranging legislation, one should keep in mind the words of Sir Matthew Hale: “It would be the Business of a Volume to set down all the Particulars, and therefore I shall only give some short Observations touching the same.”⁴⁷

Statute of Mortmain (1279)

The Statute of Mortmain (1279), sometimes called the Statute De Religiosis, was intended to control the loss of feudal services and other benefits due the king or principal lords. These services and dues were appurtenant to land, and if that land was conveyed to any civil or ecclesiastical organization corporation such as a monastic order, they could not be enforced. To prevent this from happening in the future, the statute prohibited any civil or ecclesiastical corporation from receiving any future grant of land unless that grant was first approved by a royal license or an act of Parliament.

The Second Statute of Westminster (1285)

“The year 1285, the annus mirabilis for Edward I, was one of exceptional legislative activity, resulting I no less than six great statutes.” One of these statutes was the Second Statute of Westminster (1285), an omnibus piece of legislation encompassed in fifty separate chapters. The first chapter of the Second Statute of Westminster is commonly known as the Statute of Entails or De Donis Conditionalibus (often shortened to De Donis). By means of that statute, Edward I “made that great Alteration in Estates from what they were formerly . . . whereby Estates of Fee-Simple, conditional at Common Law, were turn’d into Estates-Tail, not removable from the Issue by the ordinary Methods of Alienation.” To understand the significance of the statute, a short discussion of the statute’s background is required.

In effort to circumvent the strictures of primogeniture, an owner of land would gift land to his younger sons or to his daughter’s husband to support the couple and their children. In construing these conveyances, courts had interpreted the granting language “to x and his heirs,” not as language of a conditional grant, but as language describing the extent of the estate granted (i.e., fee simple). Based upon the courts’ interpretation, the grantee (having fee simple) was able to alienate the entire estate and so his “heir” would not receive the land. Similarly, the granting language “to x and the heirs of his body,” was construed by the courts to convey a conditional fee simple, subject only to the grantee having an heir of his body. Once such an heir was born, the grantee (who would then have fee simple) could alienate the entire estate, leaving the “heir of his body” with no interest in the land, and the grantor with no reversionary interest in the event that there were no longer “heirs of [the grantee’s] body.” Edward I saw this interpretation as a negation of the donor’s intent. The statute De Donis therefore provided “that the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed so that they to whom the land was given under such condition shall have no power to aliene [i.e., alienate] the land.” Following the passage of that statute, neither the grantee, nor his “heirs” nor the “heirs of his body” could absolutely alienate the land granted with such language. If there were no longer “heirs” or “heirs of the body,” then the gift would revert back to the original grantor or his heirs. The statute thus created the “fee tail” or entailed estate. That entailed estate was not popular with either the grantees or creditors, and it was soon circumvented by legal fictions. But the statute is important because it also encouraged the creation of other kinds of conditional estates, and these survive to this day.

The Statute of Merchants (1285)

The Statute of Merchants (1285) (de Mercatoribus) recognized both the rise of merchants and their importance to the budding English mercantile economy and England’s future. As non-landowners and frequently foreigners, these merchants fit poorly into the traditional feudal scheme. Consequently, no adequate mechanism existed to allow merchants to enforce their debts, and on that account foreign merchants were diffident to do business in England. Edward, however, “saw that the future greatness of England lay, not with the feudal landowner, but with the despised merchant.” The Statute of Merchants which he sponsored intended to cure this lacuna in the legal system, assure the merchants justice, and thereby promote trade.

To benefit the merchants, the Statute of Merchants established a mechanism for the recordation of debts, and a legal procedure for their enforcement. Following the statute, merchants could file a document bearing the debtor’s seal (the “recognisance”) which could be entered into official records or “rolls.” In exchange for that recordation, a document (a “bill obligatory”) bearing the seals of both debtor and the King (the King’s seal being unimpeachable at law) would be provided to the merchant. If the debtor failed to pay his obligation when due, he would be imprisoned unless he reached an agreement with the merchant for the debt’s repayment. If no agreement could be reached, the debt would be summarily enforced by the mayor who would levy and force-sale the debtor’s chattels, “burgage” tenements, and other property. In a truly novel adaptation, seisin in the debtor’s lands was statutorily granted to the creditor-merchant, who could then hold the land until the debt was paid or the land sold by the debtor. Until the merchant’s debt was satisfied, his interest in the land followed any sale of the land. Moreover, the debtor’s obligation survived his death, and the merchant’s debt—though it would not be personal to the heir—could be satisfied from any land held by the debtor at the time of his death. In effect, the statute created a new estate in land: a “tenure by Statute Merchant.” The legal audacity of Edward I in doing this is notable. As Arthur Hogue observed: “The statutory grant of seisin to the creditor or his assignee, without destroying the seisin of the debtor, is an almost incredible manipulation of the mysteries of seisin.”

The Statute of Winchester (1285)

The Statute of Winchester (1285) aimed at establishing the rule of law throughout the realm. It insisted that all citizens of the realm—however humble—had responsibility in the law’s enforcement, and that none was above the law, and all who violated the criminal law ought to be punished. The problem that confronted Edward and at which this statute was directed was that “felonies escape[d] presentment by the oaths of juror who would see the felonies committed on strangers pass unpunished rather than accuse the offenders, many of whom are persons of the same country.” To encourage the prosecution of felons, King Edward provided for a penalty to be imposed upon the entire locality, so that “through [at least the] fear of penalty rather [than the obligation] of the oath, no one will be spared and no felony will be concealed.” In addition to other provisions, the statute required bailiffs to keep abreast of strangers in towns, and mandated that roadways be cleared of any woods, hedges, brush or ditches for “two hundred feet one side and two hundred feet on the other, where men can hide near the road with evil intent.” The statute also required that “every man shall have in his house arms for keeping the peace,” and instituted the forerunner of the office of Justice of the Peace.

The Statute of Circumspecte Agatis (1286)

The Statute of Circumspecte Agatis addressed the thorny problem of the division of jurisdiction between the ecclesiastical courts and the royal courts, a problem that will always be with us so long as man is both body and spirit, and we should render to Caesar the things of Caesar and to God the things of God. Because royal courts could issue writs of prohibition ordering ecclesiastical courts to stop proceedings before it, churchmen wanted legal boundaries as to when the royal writ could issue. To address these concerns, in 1285, Edward I issued an ordinance that acknowledged that ecclesiastical courts had exclusive jurisdiction over matrimonial and testamentary cases. In 1286, Edward I went further, and in his Statute of Circumspecte Agatis, directed his royal justices to act in a circumspect manner (i.e., consider comity) when handling matters that were solely spiritual in nature, defining with greater particularity those matters that were considered spiritual in nature, and those that were secular and so subject to the royal court’s jurisdiction.

The Statute of Quia Emptores Terrarum (1290)

Edward I ascended to the throne during a period of economic change. One of the changes involved the result of the conveyances of land and tenements. To the barons and other magnates, the services and fees (i.e. feudal tenure) associated with land and tenements were a valuable right. However, over the centuries, as land was repeatedly subdivided and conveyed, long chains of title divided the magnate from the holder of land, and this process (called subinfeudation) tended to deprive the magnate of the incidents of feudal tenure. The problem was exacerbated by laws which encouraged alienability of land, and which resulted in the increased traffic in, and transfers of, land. This free alienability of land raised “all kinds of complicated questions as to who was really liable,” for the feudal services and fees, and so “rendered it almost impossible” for the chief lords “to collect their feudal dues.” Moreover, many magnates were deprived of the benefits associated with such feudal tenures by a “policy [or] craft,” wherein the land would be conveyed to a religious institution (which, being perpetual, was unanswerable to the magnate for services). In turn, the religious institution would re-convey the property to the grantor, thereby washing the land free of the obligations due the original magnate. Part of Edward I’s Third Statute of Westminster, the Statute of Quia Emptores was intended to address these problems, assure the free alienability of land, yet guarantee the magnates the benefits associated with feudal tenures. It did so by imposing the obligation of fees and services directly on the owner of the fee. After detailing the evils associated with subinfeudation, the Statute provides the relief:

[F]rom henceforth it should be lawful to every free man to sell at his own pleasure his lands and tenements or part of them, so that the feoffe [grantee] shall hold the same lands or tenements of the chief lord of the same fee, by such service and customs as his feoffor [grantor] held before. . . . And shall be forthwith charged with the services for so much as pertained or ought to pertain to the said chief lord, for the same parcel, according to the quantity of the land or tenement so sold . . . . For the which [the feofee (or grantee)] ought to be atttendant and answerable to the same chief lord according to the quantity of the land or tenement sold for the parcel of the service so due.

As Jenks succinctly puts it: “whilst forbidding subinfeudation,” the Statute of Quia Emptores, “expressly authorized substitution.”

Quo Warranto Proceedings

The information provided by the Hundred Rolls resulted in significant reforming legislation. This legislation is found in various statutes and other legal instruments, among them the Second Statute of Westminster (1285). That stautue is focused on extending the scope of royal government, and reforming and preventing abuses in the exercise of power. Though Edward I sought to address abuses by the magnates in the exercise of their traditional feudal powers, he did not neglect the possibility of abuse by his own local officials and justices. Edward therefore also sought to reform the organs of the central government, passing, for example, the Exchequer Ordinances, whose goal was to reform and rationalize the fiscal organs of the royal government.

One of the most significant efforts of Edward I to strengthen royal power, and thus centralize the institutions of government was his Quo Warranto proceedings. Privileges and franchises exercised by the barons and other magnates and identified in the Hundred Rolls were subjected to legal scrutiny through these proceedings. The Quo Warranto proceedings required the magnate or prelate to show cause by what right he exercised authority in derogation or usurpation of the crown. These proceedings were handled through judicial visitations by Eyre justices who rode circuit about the various counties and shires of Edward I’s realm. Whether earl, baron, archbishop, bishop, or abbot made no difference: all had to establish by what right they exercised any powers that prima facie were those of the crown, and, failing to do so to the satisfaction of the Eyre justices, would lose those privileges. Initially, proof that these rights were exercised as a matter of custom from time immemorial was regarded as no proof at all; the only proof that could save these special privileges and franchises was proof of an express royal grant. Naturally, the Quo Warranto proceedings were not popular. As a rhyme then current put it:

The king he wants to get our gold, The queen would like our lands to hold, And the writ Quo Warranto Will give us all enough to do.

Faced with strong opposition from those affected by such proceedings, however, Edward I later compromised, and allowed the Eyre to accept proof that the franchise or privilege had been exercised since the accession of Richard I (the “Lion Heart”) (i.e., 1189 A. D.); but any privilege or franchise that could not be established as a matter of custom prior to the reign of Richard I required proof of an express royal charter or grant.

Judicial Cleanup

Between 1286 and 1289, Edward I was preoccupied with his duchy in Gascony, and spent almost three years there to reorganize the government, draw up ordinances for its officials, attend to its financial condition, and establish numerous new towns or bastides. Shortly after he returned to England, he discovered abuse among some of his judicial and other royal officials, and so instituted a purge of some of the judiciary. After learning that the chief justice of the Court of Common Pleas, Thomas de Weyland, shielded two of his men from prosecution after they had committed murder, Edward I removed him from office and imposed upon him a sentence of banishment. Believing the problem was more prevalent than just one man, Edward I established a commission to hear and investigate complaints about royal officials. A number of justices of the court of Common Pleas and the King’s Bench, including Ralph Hengham, the chief justice of the King’s Bench, were found guilty of various offenses, suffered the loss of their office, and were heavily fined.

Constitutional Law

Edward’s effective use of the statute also affected the constitutional form of the English government. From a constitutional perspective, Edward I’s reign is historically significant because of his contribution to the development of the institution of Parliament—thereby indirectly affecting our Congress. Many historians of constitutional law see him as the founder of the House of Commons, the English analogue of our House of Representatives.

In an effort to gain support for additional taxes for his Welsh, French, and Scottish campaigns as well as his statutory reforms against the anticipated resistance of the lay magnates, Edward cleverly employed the idea of Simon de Montfort, and summoned representatives of the shires, boroughs and lesser clergy in the parliament called in 1295, the so-called Model Parliament. In his writ of summons, Edward I advanced a notion of law which sounds the tune of the representative democracy we take for granted:

As that most just law . . . exhorts and states that what touches all should be approved by all, as it is also evident that common dangers should be met by remedies agreed in common.

Edward I also allowed for the petition for the redress of grievances, though this may not have been because of any altruistic motives, but rather a pragmatic concession in order to obtain the support of knights, burghers, and lesser clergy for his reforms and taxes. Nevertheless, irrespective of Edward’s motive, “the great constitutional principle, that redress of grievances precedes supply, came slowly to light in Edward’s reign.” So institutionalized did this feature become during Edward’s reign, that a parliamentary official titled “Receiver of Petitions” became a regular fixture in Edward I’s parliaments.

Edward I’s contribution to the constitution of England thus indirectly affected our organic, constitutional institutions. As one of Edward’s biographer’s summarized it:

“[T]he ideals and principles adopted by the English people under the rule of Edward . . . . . breathed the spirit of justice and freedom into the mighty Commonwealths of America . . . .”

Common Law and the Rise of Lawyers as Profession

“Edward I was a lawyer-king,” and wielded the law effectively as a tool in the governance of his realm. As Edward wielded the law—both through parliament and through his courts—as an instrument of his policy, his advisers tended to be lawyers, rather than clerks and bishops. With Edward’s emphasis on delineating the jurisdiction between royal and ecclesiastical courts, and with the royal courts’ expanding jurisdiction, the legal profession became secularized. Edward’s legalistic bent also encouraged the rise of professionalism in lawyers. As Professor Stubbs put it, during Edward’s reign, “[t]he age of the lawyers was coming in.” Unfortunately, along with the rise of professionalism came the lawyers’ quiddities, their quillets, their cases, their tenures, and their tricks. As Stubbs summarized it: “Legal chicanery was the most characteristic sin of the Angevin house: and a disposition to take advantage of the letter of the law marks the greatest errors of Edward’s own policy.”

Scotland

In the latter part of his reign, Edward I confronted a problem not of his own making. The problem arose from a series of tragic events that struck the ruling house of Scotland. As a result of family ties, the Scottish kingdom was particularly close to Edward. Alexander III, the king of Scots, was married to Edward’s sister Margaret, and, although she died in 1251, she had borne two sons and a daughter. Alexander III even recognized—though perhaps grudgingly—the right of Edward to his homage. Many of the magnates owned properties on both sides of the English/Scottish border. Marriage between Scottish and English nobles was also common. Perhaps relations between the Scots and the English would have continued in peace—except that “an extraordinary succession of tragedies” hit the Scottish royals.

Alexander III’s children died three years apart: David in 1281, Margaret in 1283, and Alexander in 1284. Though Margaret died, she had been married to King Eric II of Norway, and had given birth to a daughter, also called Margaret, who survived her. This Margaret was heir to the Scottish throne. Though Alexander remarried a French noblewoman called Yolande of Dreux in 1285 with the hope of fathering another heir, no children were born of that union. In March 1286, Alexander died as a result of a fall from his horse, leaving Margaret “the Maid of Norway”—then only four years of age—queen of Scotland. The ultimate disaster then struck: Margaret died in Orkney on her way from Norway to England in 1290 to marry Edward I’s son, leaving no clear heir to the Scottish throne. “The threat on which the future security of Scotland depended had snapped.” Things were uncertain enough so as to cause thirteen rival claimants to the throne—though perhaps the two with the best legal argument were Jon Balliol and Robert Bruce. In an effort to resolve the dispute, hearings on the Scottish succession were held in Norham. Edward I demanded—and obtained—recognition from the various claimants to the Scottish throne of his overlordship. In 1291, a proceeding began in Berwick to decide the issue of succession before 104 auditors. After extensive hearings, judgment was rendered in favor of Balliol in November 1292, and Balliol was crowned king of Scotland at Scone. But it appears that Edward I decided to take advantage of the weakness of the Scottish succession, as in 1291—even while he was peacefully resolving the issue of the Scottish succession—Edward I declared to his advisors that he desired to bring Scotland under his realm.

Once John Balliol was placed on the Scottish throne, Edward began his efforts to exercise his overlordship. Edward was not satisfied with nominal jurisdiction over Scotland, and he began a series of demands calculated to rub the Scots the wrong way, including insisting on the exercise of appellate jurisdiction over Scottish courts and demanding feudal service from the Scottish lords in 1294 to support his war with France. The Scots naturally reacted, and entered into negotiations with the French, resulting in a Scotch/French treaty in 1296. This put the Scots directly adverse to the English king, and was tantamount to a declaration of war. In response, Edward crossed the Tweed River and invaded Scotland with a large force, clearly intending to subject it to his rule much as he did with Wales. He routed the Scotch forces at the Battle of Dunbar, and Balliol surrendered, thereby losing the support of his subjects and gaining the sobriquet “Toom Tabard.” Apparently, Scotland looked to be an easy conquest.

It was not. The easy conquest of Scotland was only apparent, as less than a year after Edward’s defeated the Scots at the Battle of Dunbar, he faced widespread rebellion “of middling and common folk,” headed by William Wallace. The English suffered a stinging defeat at the battle of Stirling Bridge, and English resolve against the Scottish rebellion stiffened. Edward personally headed a large force into Scotland in 1298 and defeated the Scottish forces at Falkirk—although Wallace escaped. The next year Edward I initiated another campaign against the Scots, and suffered a defeat at Stirling. In 1300, and again in 1301 and 1303, Edward mustered forces and campaigned in Scotland, though the campaigns were in general uneventful because the Scots had learned through their defeat at Falkirk to avoid a pitched battle against the superior English forces. Sometime in the winter of 1301-02, Robert Bruce left the side of the Scottish resistance, and joined with the English. After an attempt to negotiate a settlement with the Scottish resistance failed, Edward began a siege of Stirling, defeated its forces, and apparently conquered Scotland again, though William Wallace was still at large. Wallace, however, was captured in 1305, and brutally put to death. A scheme of government for Scotland was hammered out, John of Brittany appointed Edward’s lieutenant for Scotland, and the “king must have felt that, at long last, he was free of the burden of Scottish affairs.”

Again, he was not. Following a dispute between Robert Bruce and John Comyn, lord of Badenoch, Comyn was murdered. This put Bruce in a position where he had to assume leadership of the Scottish rebellion, and the Scots, with a new ruler, yet again rose against English rule. Robert Bruce was crowned King of Scotland at Scone in March 1306. Edward I gathered his troops, and once again invaded Scotland, this time responding with “unprecedented savagery” and successfully overcoming Bruce’s forces in a number of confrontations. Bruce fled away from the mainland, retired to an island off the Scottish coast, and appeared to have lost support. Bruce, however, showed remarkable resilience, and, upon Edward I’s death on July 7, 1307 at Burgh-by-Sands, began an eight-year campaign which finally led to the Battle of Bannockburn in 1314, where Scotland achieved its independence.

In retrospect, it is clear: “Edward I failed in his Scottish wars.” It is, perhaps, next to his failure in France, “the one great blot on a noble career.”

CONCLUSION

It must be conceded, then, that Edward I failed in his French and Scottish ventures. But in his legal policies, he succeeded, and did so grandly. In so doing, ushered in an important epoch in the history of English law:

“[T]he Mark or Epocha where[?] to take for the true Stating of the Law of England, what it is, is to be considered, stated and estimated from what it was when this King left it. Before his Time it was in a great Measure rude and unpolished, in comparison of what it was after his Reduction thereof; and on the other Side, as it was thus polished and order by him, so has it stood hitherto . . ..”

It is the awareness of the magnitude of Edward’s contribution to the constitutional framework, legislative process, and the common law that has led some to call Edward, inappropriately, the “English Justinian.” There is no analogy between Justinian and Edward I to warrant this. As Prestwich sees the distinction: “Justinian’s legislation preserved the past: Edward I’s created openings for the future.” The improper comparison does not mean that Edward I ought not be likewise honored as a ruler with great dedication to law, to its development, and to its equal enforcement among his people. More apropos perhaps is the name by which historians know him, Edward Longshanks. Edward Longshanks stood physically above his contemporaries and historically above most medieval monarchs, especially in the area of the law. “[F]or in his Time, the Law, quasi per Saltum, obtained a very great Perfection.” The reign of this long-legged king resulted in one long stride upward in the development of the English constitution, the sophistication of legislation, and the development of common law and its courts. It is of right, and not grace, that he ought to be honored in the annals of legal history.

¹ C. L. Kingsford, ed., The Song of Lewes (Oxford: Clarendon Press 1890), 43. In its original Latin: Cui comparabitur nobilis edwardus? . . . . Leo per superbiam, per ferocitatem / est per inconstanciam & varietatem / Pardus . . . .” ⇑

² Kahn, Charles H. The Art and Thought of Heraclitus (Cambridge: Cambridge University Press, 2001), p. 67. ⇑

³ Cf. Arthur R. Hogue, Origins of the Common Law (Indianapolis: Liberty Press 1966), 81 (“Controversies and rebellion produced a definition of the law of the land. Controversies and rebellions produced a definition of the relations of the monarch with his people as well as definitions of the relations with each other.”). ⇑

⁴ Speech of May 20, 1628 (In the Committee of the Whole House) in Steve Sheppard, ed. The Selected Writings of Sir Edward Coke (Indianapolis: Liberty Fund, Inc., 2003), Vol. III, p. 1285. ⇑

⁵ The synthesis is always uneasy. Even today, both Edward I and his opponent, Simon de Montfort, confront each other. Bas reliefs of their profiles decorate the chamber of the United States House of Representatives. De Montfort is located on the East Wall (left of the Speaker’s Rostrum); Edward I is located on the West Wall (right of the Speaker’s Rostrum). ⇑

⁶ King Henry III named his son Edward in honor of that saintly king of England, St. Edward the Confessor, to whom he was devoted. Michael Prestwich, Edward I (New Haven: Yale University Press, 1997), 4. ⇑

⁷ Prestwich, 3 quoting Matthew Paris, Chron. Maj., v.598. ⇑

⁸ Prestwich, 7-9. The duchy was administered by Simon de Montfort who was appointed royal lieutenant in 1248 for a period of seven years; however, because of de Montfort’s heavy-handed and partial administration and the many complaints King Henry III received from his subjects, he removed de Montfort three years before the administration was to expire. Id., 9. ⇑

⁹ Prestwich, 7, 11. The Isle of Olerón has an interesting role in the history of Law. The so-called Rolls of Olerón were to form the basis of English admiralty law. ⇑

¹⁰ King Alfonso is also one of the Law’s great figures. He is, indeed, along with Edward I found on the House of Representatives’ honorary medallions. King Alfonso was also a notable chess player; in fact, he commissioned a famous manual on the game completed in 1283 and known as the Libro de Juegos or Libro de Ajedrez, Dados y Tablas (The Book of Chess, Dice, and Tables). ⇑

¹¹ Prestwich, 9-11. ⇑

¹² Prestwich, 124-25. With respect to his marriage, at least, Edward I abided by his motto: pactum serva: keep troth. Nine years after Eleanor died, Edward married Margaret of France, half-sister of Philip IV of France, who was forty years younger than he. Edward’s marriage with Margaret resulted in three children. ⇑

¹³ Llywelyn ap Gruffydd (ca. 1223-1282), “a man of immense ambition and considerable ability,” Prestwich, 19, is also known as Llywelyn Ein Llyw Olaf (Llywelyn the Last). He is considered the last prince of an independent Wales following its conquest by Edward I. He should not be confused with Llywelyn ap Iorwerth (Llywelyn the Great) (ca. 1173-1240). As the patronymic indicates, Llywelyn ap Gruffydd was a son of Gruffyd, who in turn was the illegitimate son of Llywelyn the Great. ⇑

¹⁴ Prestwich, 25. Pope Innocent IV had granted the crown of the Sicilian Kingdom to Edmund in the hopes that King Henry III would oust Manfred, the illegitimate son of the Hohenstaufen Frederick II, who was the effective ruler of Sicily. Edmund received the nickname “Crouchback” when he accompanied his brother on crusade. Crouchback (meaning “cross back”) referred to his entitlement to wear a crusader’s cross on his back. ⇑

¹⁵ The Lusignans were the progeny of Henry III’s mother, Isabella of Angoulême (1187-1246), and her second husband, Hugh X of Luisgnan (1195-1249), Count of La Marche, whom she married in 1220 after the death of Henry III’s father, King John of England, in 1216. ⇑

¹⁶ Prestwich, 24-25. ⇑

¹⁷ William Stubbs, ed. Select Charters and Other Illustrations of English Constitutional History From the Earliest Times to the Reign of Edward I (Oxford: Clarendon Press, 1900) (8th ed.), 379. ⇑

¹⁸ Twelve of the twenty-four were chosen by the King, and the earls and barons were to chose the other twelve. Prestwich, 25; Stubbs, 379. ⇑

¹⁹ Prestwich, 26. ⇑

²⁰ Membership on the Council of Fifteen was determined by a relatively complicated electoral process. The King’s twelve representatives at the Oxford Parliament chose two electors, and the baronial twelve representatives chose another two. The committee of four electors were then to appoint the fifteen. Prestwich, 25; Stubbs, 379. ⇑

²¹ Encyclopedia Britannica, V. 20, p. 415 (1911) (s.v. “Oxford, Provisions of”); Stubbs, 379. ⇑

²² Prestwich, 25. ⇑

²³ Stubbs, 379. Unfortunately, the texts have not been preserved, and information about the provisions is taken from other sources, especially notes and extracts of the provisions found in the Annals of Burton Abbey. The Provisions of Oxford were later replaced by the expanded and modified Provisions of Westminster. ⇑

²⁴ Prestwich, 35; Stubbs, 380. ⇑

²⁵ It is surprising that the nobles agreed to Louis IX as arbitrator. Louis IX was married to Marguerite de Provence, the sister of Eleanor, the wife of Henry III. Even Saints may succumb to the temptations of partiality, and it would have been better had the parties not led him to temptation. Whether St. Louis was tempted and yielded to the temptations is known to God alone ⇑

²⁶ Prestwich, 40-47. ⇑

²⁷ Prestwich, 47. ⇑

²⁸ Each shire was to elect two knights, whereas each borough was to select two burgesses. Vote for the county or shire constituencies was granted uniformly. Franchise was awarded all the so-called “Forty-shilling Freeholders,” that is, all those who owned a freehold of land that brought in annual rents of at least 40 shillings (i.e., two pounds). The franchise for the borough constituencies was not uniform. ⇑

²⁹ Prestwich, 49. ⇑

³⁰ Halliwell-Phillipps, J. O., ed. Chronicle of William de Rishanger, of the Barons’ War (London: J. B. Nichols & Son, 1840), 45. ⇑

³¹ Prestwich, 51. Thankfully, these pudenda were never venerated as relics! ⇑

³² Prestwich, 71, 72-73. ⇑

³³ Short for Al-Malik al-Zahir Rukn al-Din Baibars al-Bunduqdari. ⇑

³⁴ Prestwich, 66. ⇑

³⁵ Louis IX died on August 25. Louis IX was beatified in 1398. As is traditional in the Roman Calendar, his Feast Day is the date of his death. ⇑

³⁶ Prestwich, 75. ⇑

³⁷ Prestwich, 77. ⇑

³⁸ The story, for all its romantic sheen, is probably apocryphal. Prestwich, 66. ⇑

³⁹ Stubbs, 428. ⇑

⁴⁰ Llywelyn was decapitated, and his head put on a pike where it rotted in the Tower of London. Prestwich, 202. ⇑

⁴¹ Prestwich, 170-232. ⇑

⁴² Hogue, 216 (citing the opinions of William Stubbs and T.F.T. Plucknett). ⇑

⁴³ Matthew Hale, The History of the Common Law of England(Chicago: University of Chicago Press, 1971), 102-03 ⇑

⁴⁴ Hogue, 69. ⇑

⁴⁵ Prestwich, 92. The “Hundred” was a unit of local governance, being a subdivision of the Shire. Each Hundred had its own jury. Edward appears to have adopted the method of inquest used by the opposition to the crown. It was not the first time he was to adopt baronial methods as a tool of the king. ⇑

⁴⁶ Prestwich, 237. ⇑

⁴⁷ Hale, 102. ⇑