The Deposition of Edward II · 2017. 7. 30. · Edward II 1327; Richard II 1399; Henry VI 1461 and 1471; Edward V 1483; Richard III 1485. Edward V "reigned" for 2-1/2 months in 1483

The Deposition of Edward II

Patrick Kavanagh

The deposition of a ruler is of interest because it raises questions about the character of that ruler’s authority and his/her relationship to the community he/she rules. A deposition also raises issues of the character and authority of the agency of deposition. Such issues are of particular interest to lawyers. In this paper I shall examine the deposition of Edward II, king of England, in January 1327. I shall concentrate on the procedure chosen rather than the actual charges against Edward. I propose to treat the deposition as a case study through which to see in operation ideas of law and government in the middle ages which otherwise remain fairly abstract.

The starting point of interest about Edward’s deposition is that it was not a papal deposition. By the early fourteenth century the theory of papal deposition was well established. Papal deposition operated within a normative structure in which the pope vindicated a unified principle of justice that bound together the diverse Christian communities. In this sense the power of papal deposition ranked pope and king in one legal structure, with the former superior to the latter. Edward’s deposition, however, was quite internal to the kingdom. What then does it tell us about the relationship of king and kingdom in early fourteenth century England? Were they ranked hierarchically or what? And what was the nature of the bond between them?

The argument in the paper is this: king and kingdom were not ranked hierarchically; they met in the concept of the crown. Furthermore, both law and legal theory were quite explicit that, while the king operated within the law, he was not subject to its coercive power. Also, both law and legal theory were quite explicit that the determination of public issues was reserved to the king. Therefore, there was no legal structure within which the king

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could be deposed by the kingdom but there was a legal structure within which he could abdicate. The question then is how do we interpret the events of January 1327: as an abdication or a coup d’etatl

In the fourteenth and fifteenth centuries, five English kings were removed.1 This contrasts significantly with the contemporary kingdom of France.2 In each of the English cases political circumstances were such that urgent and definitive action was demanded of the protagonists to ensure their own survival. And in each case the removal was an internal affair, conducted through English institutions and not by the papacy, for example. To that extent the removals express the turbulence of English politics in the fourteenth and fifteenth centuries. But they express more than that. One needs some understanding of the intellectual and constitutional context that presented removal and replacement of the person of the king as a legitimate response to the crisis. It is this question that I wish to address in the circumstances in England in January 1327.

The removal and replacement of the person of the king was new in England in 1327. However, there were many examples of resistance to the king, especially in the reigns of John, Henry III and Edward I in the previous century, resistance which claimed justification in law. The question arises then of the historical connection of the events of January 1327 with the earlier manifestations of resistance within the law. This question may be examined through the example of Magna Carta, granted by John in 1215. The security clause of Magna Carta provided for a committee of twenty five barons chosen by the baronage itself, to ensure the observance of the charter. If the King failed to redress a transgression brought to his notice the "twenty- five barons with the commune of all the land" could extract the feudal penalty of distress, saving the king’s person and the persons of the queen and children. Because of the feudal nature of the remedy and the exemption of the king’s person it has been argued Magna Carta operates entirely within the feudal law and that the security clause enshrines a feudal right of diffidatio,

Edward II 1327; Richard II 1399; Henry VI 1461 and 1471; Edward V 1483; Richard III 1485. Edward V "reigned" for 2-1/2 months in 1483 and never ruled at all but he was proclaimed, received oaths of fealty, had his coronation scheduled, was initially accepted as bearer of the Yorkist inheritance and had parliamentary writs issued in his name. See Charles Wood, "The Deposition of Edward V" (1975) 31 Traditio 247; Michael Bennett, The Battle of Bosworth, Alan Sutton, Stroud, 1985.Contemporary France: "... in France the deposition of a king seems never to have been seriously contemplated, even in the case of the captive John II and the cretinous Charles VI": Jonathan Sumption, The Hundred Years War, Univ of Pennsylvania Press, Philadelphia, 1990, p 50.

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and therefore is historically disconnected from the deposition of Edward II, to understand which appeal needs to be made to principles of broader import. The effect of this argument is to disconnect Edward’s deposition from those historical narratives wherein kingship was criticised from within the feudal law and indeed to disconnect it from such historical narratives that relate specifically to England.1 * 3

It seems valuable to locate Edward’s deposition in a wider European context. But it seems also valuable to recall that, in a medieval context, legal influences are always multi faceted simply because acts of government sounded within so many different bodies of law. Furthermore, the historical disconnection of Magna Carta from the deposition of Edward II seems to focus unduly on the king. That may lead one to an understanding of the politics of deposition,4 but the legal meaning must be sought in the relationship between king and community, king and the agent of deposition. In other words, a legal interpretation may re-connect the narratives of the granting of Magna Carta and the deposition of Edward II. Once it is accepted that Magna Carta is concerned with theories of government rather than the relations between king John and his prelates and barons,5 the security clause looks more like a constructive deposition than a feudal diffidatio.6 It is true that the clause means that John is to govern in accordance with the agreement reached with his barons, secured by the remedy of distress, and does not contemplate that the relationship between John and the kingdom might be shattered or permanently repudiated. But the security clause also authorises the barons to move directly to the remedy when they believe a transgression has occurred along with others who "may take an oath to obey the orders" of the committee of barons in doing so. In other words, the governmental judgment of what the agreement or the law requires in a particular case is effectively transferred from the king to the committee of barons. Yet the clause as drafted appears to proceed on the assumption that government can proceed directly from law without the intervention of judgment. It is unlikely anyone thought this. Perhaps the real assumption behind the clause is that government would be a joint enterprise

1 Charles Wood, "Celestine V, Boniface VIII and the Authority of Parliament" (1982) 8 Jo ofMedieval History 45.

4 As already suggested, in each of the English depositions the protagonists had to remove the incumbent or be destroyed themselves."The system was attacked, not because it was abused, but because of what it was ... ", J C Holt,Magna Carta, 2nd ed, Cambridge UP, 1992, p 45.

6 Thus did some barons feel able to move from the security clause to actual deposition : Holt, above, n 5, pp 376-7.

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between king and barons within the frame described in the charter. Most administration as a matter of fact would remain with the king but each party would know a transgression when they saw one because the jointness of the governmental enterprise implied a commonness of mind, reason and judgment.

Magna Carta then had feudal characteristics and it had precedents, both in England and in other feudal polities. But "it derived its importance not from its antiquity but from its coincidence as a grant of liberties with the formative period of English legal development".7 This coincidence came from the style of Angevin government so that the charter came to deal with many more legal issues than those which were in dispute between John and his barons in 1215. The process "received its final and strongest expression in 1217 with the injection of measures which had not appeared at all in the earlier versions".8 Holt argues that Magna Carta was drawn into the process of government rather than standing merely as privileged ground won against a constantly antagonistic royal power. Government itself was set in the law and involved both king and barons, unable to be sharply split as each accepted some of the other’s position in the reality of government. Holt is arguing that Magna Carta in the medieval period is not what it later became, a charter of rights and liberties. Rather, it was infused into the process of government itself, government conducted as a joint enterprise by, in later parlance, "that composite body of king and magnates who together were said to be, or to represent, the Crown".9

Magna Carta is placed in a similar historical narrative by Walter Ullmann.10 Ullmann argues that the historical context of Magna Carta can be analysed as one in which two models of kingship were in tension: the theocratic and the feudal. According to the theocratic model the royal will was jurisgenerative; the law proceeded directly from the royal will and there was no room for constitutionalism. There was a fundamental cleavage between king and subjects. Government and law making were characterised by will

7 JC Holt, "Magna Carta and the Origin of Statute Law" Studia Gratiana, Vol XV Post Scripta, Rome, 1972, 489, p 492.

8 Holt, above, n 7, p 499.9 Ernst Kantorowicz, The King’s Two Bodies, Princeton UP, 1957, p 381.10 Walter Ullmann, Principles of Government & Politics in the Middle Ages, Methuen, London, 1961,

Part II, Ch 2. Ullmann does, however, give historical weight to "the tyranny of John" which "opened the eyes of the barons and forced them to act". Ullmann, p 171. The reason is that, in Ullmann’s view, any western European kingdom at the time would have experienced the tension found in England. John’s tyranny then was a blessing in disguise.

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on one side and obedience on the other. Feudalism however was characterised by contract; lord and vassal were bound to each other by rights and duties. There was no fundamental cleavage between king and community. Government and law making were characterised by loyalty, fidelity and consent. Ullmann indicates feudal kingship was not the same as "populist sovereignty": for one thing the bond was between king and barons, for another, within that bond both parties were active in government and law making.11 Ullmann interprets Magna Carta within this model so that the charter represents a critique of Angevin theocratic kingship mounted from within the feudal conception of government and law. Magna Carta was monarchic in form (being in form a charter granted by the king) but feudal in substance. Within this analytical frame its grant was a major capitulation by John, the historical meaning of which could not be turned back. Magna Carta "sealed the fate of the monarchic king" in England.12 Henceforth the government in England would be set in law. While primarily the business of the king, it would be the joint responsibility of king and barons. Instead of being characterised by will, power and subjection, government in England would be characterised by law, trust and consent. The common law itself is part of this model13 as is the growth within the thirteenth century constitution of the communitas regni}4 The crown comes to be the "juristic expression of the union of king and community of the realm" and itself the bearer of public rights.15 In this conception, argues Ullmann, lies the germ of constitutionalism.16

The post-Magna-Carta conception of English medieval government found in Holt and Ullmann is attractive.17 Government is set in law and is essentially the business of the king. King and community are not sharply differentiated and meet in the crown. Analytically speaking, there is neither state nor society. The practice of government is characterised by the need to respect the law of groups in the community, within which law are found

11 Ullmann, above, n 10, p 153.12 Ullmann, above, n 10, p 174.13 Ullmann, above, n 10, pp 170-2.14 Ullmann, above, n 10, p 175.15 Ullmann, above, n 10, p 179.16 Ullmann, above, n 10, p 181.17 For an analysis of Magna Carta that sees the document as maintaining autonomous spheres of

privilege but always operating on a fundamental differentiation of king and community see Susan Reynolds, Kingdoms and Communities in Western Europe, 900-1300, Clarendon Press, Oxford, 1984, pp 267-71.

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not only their privileges but the very meaning of life for members of the groups. The law of such groups then operates like a shell, protecting them from penetration by governmental policy without their consent. There is a need for an institutional structure to contain the tension between law and policy, but institutional structures tend to be fairly minimal.

The historical narrative that gives meaning to this view of government is, in my view, broadly as follows. For a Christian Christ is king and guarantor of justice. For a Christian then the question is: how can an earthly king actualise the rule of Christ on earth and function as rex iustus? Up until the Gregorian period (late 11th century) the king was a gemina persona or twinned person: human by nature, christus by grace.18 This grace was an effluence of his coronation, then treated as a sacrament, and which sanctified his personality. This is a familiar image in Christian thinking. Both Moses and Peter for example look unlikely leaders until ennobled by divine selection. Each man then becomes a great leader and mediator of God’s law. So this view of the king as gemina persona is constituted within the normative structure of Christianity. At his consecration the king is deified by grace within time.19 Vicar of Christ on earth, he rules in Christ’s place. And, as "there is no power but of God"20 the authority is holy and commands submission even if the man is bad.21

It is important to realise that the twinning of human and divinity in the king is ontological, not functional: the king has two different forms of being, one natural one consecrated.22 Therefore, one cannot within this conception separate man and office and build a constitutionalism. "The king is the perfect impersonator of Christ on earth" who was "at once God and man". The conception is "not founded in law or constitution, but in theology."23

However, the Gregorian revolution dealt the christomimetic king a body blow from which he did not recover. In the first place, theological doctrine was developing which would locate the real presence of Christ on earth in the

18 Kantorowicz, above, n 9, pp 45ff.19 Kantorowicz, above, n 9 p 47.20 Romans 13:1.21 Kantorowicz, above, n 9 pp 54-55. The same idea is found throughout John of Salisbury

Policraticus, eg Book IV Ch 1; edited and translated by Cary J Nederman, Cambridge UP, 1990.22 Kantorowicz, above, n 9, p 59.23 Kantorowicz, above, n 9, p 58.

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consecrated host24 whereupon the clergy tended to replace the royalty as the human agency actualising the rule of Christ on earth.25 Indeed, as the host is actually consumed, the sacramental act of the priest enabled a union of Christ and each member of the faithful that the king could never hope to match. When annual participation in the eucharist became a duty of each member of the faithful as it did after the Fourth Lateran Council of 1215, such participation became the measure of "membership in the church as a corporate body".26 Remembering that celebration of the eucharist is itself a commemoration of the last supper at which Jesus tried to explain the meaning of his passion and death, the theology of the eucharist was a major means by which the church monopolised earthly ties to Christ who had, through his death, reconciled humans to the benevolence of God.27 Furthermore, coronation and consecration was stripped of its sanctifying effect; both in religion and in law coronation receded in significance in the constitution of the king. The last king of England to date his reign from his coronation was Henry III, crowned in Gloucester Abbey on 28 October 1216, at the age of nine. The importance of the coronation in constituting the boy as king is shown in the haste with which the ceremony was accomplished. The ceremony was performed by the bishop of Winchester as the archbishop of Canterbury was in Rome; and the boy was crowned with a gold circlet hastily fashioned by his mother as the crown was hidden for safety. By contrast, Henry’s son Edward dated his reign from 20 November 1272, after the lapse of three full days from his father’s death, but was not crowned until 19 August 1274.

If then the king was no longer constituted and consecrated within the normative power of theological principles in coronation, how could he reconstitute himself and recover his position as mediator of Christ’s justice on earth? Kantorowicz’s answer is that kingship was reconstituted within jurisprudence, and the jurisprudence chosen was that of the medieval universities which grew out of the study of the Roman law.28 This development indicates that medieval western thinking had, by the mid-twelfth

24 Miri Rubin, Corpus Christi: The Eucharist in Late Medieval Culture, Cambridge UP, 1991, Ch. 1.25 Kantorowicz, above, n 9, p 90.26 Harold Berman, Law and Revolution, Harvard UP, 1983, p 174.27 Berman, above, n 26, p 174 ff.28 Kantorowicz, above, n 9, pp 87-192. See also Kantorowicz, "Kingship Under the Impact of

Scientific Jurisprudence" in Twelfth Century Europe and the Foundations of Modern Society, M Clagett, G Post and R Reynolds (eds), Univ of Wisconsin Press, 1961; reprinted in the author’s Selected Studies, New York, JJ Augustin, 1965; page references here are to the latter. The analysis and argument in this part of the paper are drawn from Kantorowicz in these sources.

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century, reached the concept of universal laws and developed a juristic science by which to understand them. Kantorowicz does not believe this stage would have been reached by mere evolution but was itself propelled by the forces unleashed by Gregorian reform. This combination of historical factors and location of legal science within the universities, gave legal science not only autonomy but the moral and intellectual power to challenge the normative power of theology.29 In Roman public law the Christian emperor was "God’s vicegerent or viceroy on earth presiding over a monarchy that reflected the higher and more perfect order of heaven".30 This image was rooted in pre-christian doctrine that the emperor was dominus et deus and was, therefore, formed quite independently of the church. Therefore, the re-construction of kingship was not merely "a secularisation of the spiritual": it emerged from a jurisgenerative force independent of theology. But nor was it merely secular. It was "a spiritualisation and sanctification of the secular".31 Roman juristic kingship differed from christomimetic kingship in conception and in meaning, although directed to the same end. The point that has to be grasped is that kingship became a legal rather than a theological concept.

Roman law lacked the language to conceptualise the king as vicarius christi and conceptualised him instead as vicarius dei. Indeed, it was under the influence of Roman jurisprudence that christomimetic kingship finally dissolved.32 The shift is important because God and Jesus relate to the world in different ways. In the creed God is spoken of as the ultimate justification while Jesus proceeds from him as his minister, executing his designs. Jesus constantly spoke of God in this manner during his earthly life. Now Jesus sits at the right hand of God and it is Jesus who will come in glory to judge the living and the dead.

The king as vicarius dei represented an ideal of just government and became guarantor of peace and justice. These are more abstract ideas than mere rule because they do not proceed directly from the mind of the ruler: they have to be concretised through law. The juristic king is to promote justice through law. Harold Berman speaks of Henry II, a twelfth century king of England,


29 Kantorowicz, "Kingship ..." above n 28, pp 152-6. See also Berman, above, n 26, Chs 2 & 3.30 DM Nicol, "Byzantine Political Thought", in The Cambridge History of Medieval Political Thought,

c.350-c.l450, JH Bums (ed), Cambridge UP, 1988, pp 51, 52.31 Kantorowicz, "Kingship ..." above, n 28, p 163.32 Kantorowicz, "Kingship ..." above, n 28, p 164.

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"judicialising" the writs.33 And note how Henry II, through the assizes of novel disseisin and mort d’ancestor, forced his barons to law rather than force to defend a claim of right.34

The re-constitution of the king within Roman jurisprudence meant that titles like vicarius dei and lex animata and principles like quod principi placuit legis habet vigorem and rex non habet superiorem in terris could be applied to him. It does not by any means follow that the king could rule unilaterally and through mere will. Limitations appeared within Roman jurisprudence itself, "Roman jurisprudence" referring to medieval jurists’ understanding of Roman law. Roman law taught that the princeps ruled because, by the lex de imperio, the populus granted him the imperium that they possessed. Meeting with the Christian principle that all power is of God, one could get to the stage that vox populi est vox Dei, especially if one wanted to avoid the papal theory that all power was mediated through the pope. The populist theory tied in with the English theory of the crown, and appeal was made to it at the time of the deposition of Edward II in 1327. Furthermore, the king as vicarius dei recedes from judgment in person in favour of judgment by his judges through law, just as it is Jesus and not God who will judge the human race on the last day. Despite the theological parallel, this evolution would itself be impossible were it not for the development of legal science. Consequently, while the king is lex animata, this means, as Sir Edward Coke was to explain to King James in 1607, that the king is always present in all his courts; it does not mean the king can judge in person as if judgment proceeded directly from his reason.35 At least that is what the formula came to mean in England. And that is so, it is argued, because Magna Carta fell into this historical narrative at a crucial time.

Bracton wrote his treatise On the Laws and Customs of England in the middle years of the thirteenth century. There are many references to English kingship which Bracton clearly placed within Romanised kingship. Bracton "repeatedly and emphatically calls the English king 'vicarius Dei in terris’ or 9in terra’".36 Bracton’s intellectual relationship to the thirteenth century

33 Berman, above, n 26, pp 446-8.34 SFC Milsom, Historical Foundations of the Common Law, Butterworths, London, 1969, pp 116-9;

2nd ed, 1981, pp 149-51.35 Prohibitions Del Roy, 1607, 12 Co Rep 63. It has been argued that the principle of lex animata

originates in hellenistic political theory and that if it proposes to set the emperor over all law it is contrary to Augustan principles: Fritz Schulz, "Bracton on Kingship" (1945) 60 EHR 136, pp 157-8.

36 Schulz, above, n 35, p 149.

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European jurisprudential movement has been analysed by Samuel Thorne, who describes Bracton’s treatise as the last English law book to take its place in the mainstream of European intellectual development.37

So how then does Bracton see English kingship? Bracton deals with different conditions of persons and the laws attaching to them, but he also makes plain that divisions amongst humans are not dictated by nature (which can be equated with God himself).38 Therefore every human condition must exist within a law other than natural law. Amongst these artificial divisions of humans are included those "placed above others and [who] rule over them."39 This approach enables us to understand Bracton’s most famous remarks concerning the king:

all are below [the king] and he himself below no one, except only God.

The king has no equal within his realm, Subjects cannot be the equals of the ruler, because he would thereby lose his rule, since equal can have no authority over equal. Nor a fortiori a superior.

The king must not be under man but under God and under the law, because law makes the king,

Let him therefore bestow upon the law what the law bestows upon him, namely, rule and power.

No one may presume to question his acts, much less contravene them.40

The king then is at once above and below the law. The contradiction is only apparent because both statuses are legal and contained within "the law" that

37 Samuel Thome, "Henry De Bracton, 1268-1968", in his Essays in English Legal History, Hambledon Press, London, 1985, 75, p 78. One can say this even though Bracton’s treatise takes for its subject matter the law of England. Indeed that is Thome’s point: Bracton intellectualised English law within a framework of medieval Roman jurisprudence and thereby brought it into the mainstream of European scholarship.

38 Bracton On the Laws and Customs of England, edited by George Woodbine, translated withrevisions and notes by Samuel Thome, published in association with the Selden Society by theBelknap Press of Harvard UP, 1968, Vol II, pp 32, 26.

39 Bracton, above, n 38, p 32.40 Bracton, above, n 38, p 33.

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constitutes the king. The duality is within the office itself and constitutive of it; it is not as if the king is being pulled in contrary directions at once. According to Kantorowicz, the dialectical relationship of exaltation and limitation ensures that the king functions as vicarius Dei, which demands that he act always within "the law".41 Of course, we must remember that law is not a unitary concept in medieval thinking but this does not mean we can interpret the passage as turning on a distinction between human law and natural law, whereupon the passage would mean the king is above human law but under natural law. In medieval juristic thinking, all law is ultimately rationalised in the mind of God. Thus says Bracton, judges "are deservedly called... priests, for we worship justice and administer sacred rights".42 It is in this sense that the king is "under the law". Hence, it is not surprising to find Bracton adopting the position of John of Salisbury: if the king operates outside the law, relying on will rather than ius, he simply ceases to be king.43 Therefore, to understand Bracton’s concept of kingship we must come to terms with the dialectic of exaltation and limitation within the law.

The dialectical relationship between exaltation and limitation in the office of the king is transferred to the constitution and government of the kingdom. Bracton explains that the king "has in his hand all the rights belonging to the crown and the secular power and the material sword pertaining to the government of the realm".44 Bracton goes on to detail what amount to governmental prerogatives and to explain that, while some are inseparable from the crown, others may be transferred to private persons as liberties and franchises. Part of Bracton’s purpose is to explain all liberties and franchises must be granted by the king; they cannot merely attach to a feudal holding or city charter for example. However continues Bracton "when the lord king grants liberties what he has once given he cannot resume de jure"45 Consequently, if the king grants the same liberty to two donees, it is a matter

41 Kantorowicz, above, n 9, pp 157-8.42 Bracton, above, n 38, p 24.43 Schulz, above, n 35, pp 151-3. Bracton: "And whatever may be said of the king’s deed, that he is

king and accordingly his deed must not be questioned, it may not be judged nor revoked by anyone when it is rightful, but if it is wrongful it will not then be the deed of the king". Bracton, above, n 38, Vol IV, p 159. John of Salisbury: "the prince ought to imagine himself permitted to do nothing which is inconsistent with the equity of justice". Policraticus, above, n 21, p 29, Book IV Ch I. J C Holt has argued for the influence of the thematic structure of Policraticus in the conceptualising of the problem and the solution represented by Magna Carta: Holt, "The Barons and the Great Charter" (1955) 70 EHR 1, p 5.

44 Bracton, above, n 38, p 166.4<s Bracton, above, n 38, p 169.

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for law, which law it is Bracton’s purpose in this paragraph to explain, which donee is to be preferred. In other words, the matter is out of the king’s hands and he cannot choose again. The law authorises the king to grant a liberty, but the liberty once granted creates a shell which the King’s prerogative cannot penetrate. In the one case the law arms the king, in the other case it bridles him. Here we have a contrast between prerogative and immunity, both within the law and paralleling the duality in the office of the king.

Observing this parallel enables one to deal with another troublesome notion in Bracton’s conception of kingship: the ability to make law.46 In myopinion the answer is straight forward: Bracton has no clear concept of legislation because it is in effect precluded by his dialectical model. What we would call legislation to Bracton is a species of jurisdiction. English law, Bracton says, is basically customary but not simply customary:

it will not be absurd to call English laws leges, though they are unwritten, since whatever has been rightly decided and approved with the counsel and consent of the magnates and the general agreement of the res publica, the authority of the king or prince having first been added thereto, has the force of law.47

It follows that if the law is to be changed it can be changed only with the participation of those who will be affected by the change:

Since [the laws] have been approved by the consent of those whose use them and confirmed by the oath of kings, they cannot be changed without the common consent of all those by whose counsel and consent they were promulgated 48

What we have here is not a process of legislation but an interaction of prerogative and immunity, prerogative and the protection of interests. But the interests are not lifted out of the prerogative like modem civil rights: the model is one to contain the two and thereby express a kingship founded on the dialectical relationship of being above and below the law.49

46 See the discussion by Schulz, above, n 35, pp 153-69.47 Bracton, above, n 38, p 19.48 Bracton, above, n 38, p 21.49 Cp. Kantorowicz, above, n 9, pp 149-55.

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Representational principles were borrowed from Roman law to secure this model.

The final point of interest for us in relation to Bracton is : what to do with a defaulting king? Bracton says more than once that God will eventually take his vengeance and details the punishment God has in store for those who abuse the high and responsible office of judging and rule. But this will not come until the last judgment on the last day: is there anything more immediate? The king can be petitioned, the people can pray to God for deliverance ... can there be anything else? At one point Bracton is explaining that neither private persons nor justices can interpret the king’s charters in case of doubt: "the interpretation and pleasure of the lord king must be awaited, since it is for him who establishes to explain his deed". Even if the charter is a forgery this rule holds. The judges should hold their hands so that the matter may "proceed before the king himself'. However, the king should be asked to amend the matter nonetheless

lest he and the justices fall into the judgement of the living God because of it. The king has a superior, namely, God. Also the law by which he is made king. Also his curia, namely, the earls and barons, because if he is without bridle, that is without law, they ought to put the bridle on him. That is why the earls are called the partners, so to speak, of the king; he who has a partner has a master.50

Similarly, in his long discussion of the assize of novel disseisin Bracton considers the situation where the disseisor is the king:

If it is the prince or king or another who has no superior except God, the remedy by assise will not lie against him; there will only be opportunity for a petition, that he correct and amend his act. If he fails so to do, let it suffice him for punishment that he await God the Avenger, who says "Vengeance is mine and I will repay", unless one says that the universitas regni and his baronage may and ought to do this in the king’s own court.51

50

51

Bracton, above, n 38, pp 109-10. Bracton, above, n 38, Vol III p 43.

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These statements are, apparently, so contrary to the principle that "The king must not be under man but under God and under the law"52 that they are sometimes dismissed as non-Bractonion interpolations.53 Perhaps the problem with these passages arises from interpreting the king-under-no-man aphorism in modem constitutional fashion. If it is interpreted in medieval fashion, as an example of the dialectic so beloved of medieval thinkers* and as a typical solution to a characteristic medieval problem of law and government, some other features of the troublesome passages became clear, namely:

Bracton is not suggesting the king be subject to ordinary legal process without his consent. Both the above passages recognise this is not so. Therefore no one is presuming to question the king’s acts.54

Bracton is not suggesting that the king be judged out of court and in his absence. In each case the matter is to be referred to the king’s curia or the king’s own court. Here king and barons will meet. Now Bracton also says:

various powerful persons are established under the king, namely, earls, who take the name ‘comites' from ‘comitatus\ or from ‘societas\ a partnership, who may also be called consuls from counselling, for kings associate such persons with themselves in governing the people of God, investing them with great honour, power and name...55

12 Bracton, above, n 38, p 33.53 Eg, Schulz, above, n 35, pp 173-5. For a criticism of Schulz on this point see HG Richardson,

Bracton: The Problem of His Text, Selden Society, 1965, pp 31-35. In Tierney’s view, the matter, at least in relation to the first of the above extracts, is incapable of proof one way or the other; Tierney, below, n 63, p 311. Modem historians usually attribute apparent inconsistencies in Bracton to multiple authorship, one of whom was Henry de Bracton himself but none of whom stamped the treatise with his personal authority. This sort of multiple authorship of "Bracton" is undoubtedly correct, and the first of the above passages may well have been written in response to events in England in the mid thirteenth century as is often asserted. But it does not by any means follow that the passage is inconsistent with the main theoretical stand of the treatise. Indeed, when we recall that thirteenth century scholars saw themselves as working within a shared wisdom rather than from personal intellectual authority, the overall coherence of "Bracton" looks more rather than less likely. In my opinion, Cary Nederman is persuasive on this point; Nederman, "The Royal Will and the Baronial Bridle: The Place of the Addicio De Cartis in Bractonian Political Thought", History of Political Thought, Vol IX, 1988, 415.

54 Bracton, above, n 38, p 33.55 Bracton, above, n 38, p 32.

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These are the sort of people who will meet with the king in his own court, and together they will make the court.

Bracton does not speak of the earls, barons and judges who are to meet with the king in his own court and bridle him as if they are superior to him. He speaks of them as under the king but forming a partnership or societas with him, sharing his responsibility for justice, descending with him into the fiery furnace and outer darkness if they fail.

It is not the purpose of this assembly to call the wrath of God on the king. That is a matter between the king and God and Bracton treats it quite separately.56 This assembly of king and magnates is to operate within the law, not within the wrath of God.

For a similar reason, the "bridle" is not the invention of the earls and barons. It is nothing other than the law by which the king is made king and within which he should be operating. To bridle the king is merely to bring him within the law. Bracton then is setting neither the law nor the magnates "over" the king. He is merely drawing out the implications of his Romanised juristic conception of kingship.

At the same time Bracton is curiously inexplicit about the formal makeup of the body; who actually is a member of it? Who convenes it? What are its formal powers? Can this curia overrule the king? It is suggested that Bracton did not address such issues because they defer to matters not actually part of the conception. These issues suppose that Bracton’s purpose is to find a way in which to render the king accountable or subject him to coercion. That cannot have been Bracton’s purpose because he is crystal clear the king is neither accountable nor subject to coercion for the simple reason this would break down the distinction between ruler and subjects.57 When then Bracton says the earls are called partners of the king and "he who has a partner has a master"58 the master is not the partner but the societas or partnership that king and partners create between them. Bracton indicates that the earls offer the king not only counsel but strength.59 The presupposition of this curia then is that the jurisdiction of the king with his counsellors is more powerful than the jurisdiction of the king alone. The

^ Cp William Jordan, "On Bracton and Deus Ultor" (1972) 88 LQR 25.57 Bracton, above, n 38, p 33.

Bracton, above, n 38,p 110.^ Bracton, above, n 38, p 32.

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former then may assess the activity of the latter, but it is the jurisdiction of the king both times. It has to be because Bracton is quite explicit that the king holds the material sword.60 In the language of the thirteenth century this means that all secular jurisdiction is ultimately his, about which Bracton is also quite explicit.61 Looked at in this way the passages about the curia reviewing the activity of the king are perfectly consistent with the maxim: The king must be under no man but under God and the law, because law makes the king.62 What we come back to then is a form that accommodates the dialectical relationship between king and magnates and thereby accommodates the dialectic in the maxim just quoted, within the law.63

There is another important point that comes out of Bracton’s inexplicitness about the formal make up of this body. Bracton refers to it as the curia and the King’s own court. It is suggested this terminology is descriptive rather than institutional. In other words it indicates that the body operates in immediate fashion within the King’s ordinary jurisdiction;64 it does not mean that body was the curia regis. This is apparent from the context and also from the fact Bracton is quite inexplicit about the formal make up of the body. At this point we need to observe that in the Latin used in constitutional documents in England in the thirteenth century there appear the two terms "consilium" and "concilium", and these terms were not interchangeable: "Concilium was always the name of an assembly; consilium regularly meant counsel; exceptionally it denoted an assembly".65 The value of that insight to the present argument is that it warns us not "to reduce diversity of practice" in thirteenth century England to mere institutionalism "as if a function could not be performed without a recognised institutional body to perform it". Many assemblies whose "membership, procedures, and formulae were not well-defined" were viewed by contemporaries "as

60 Bracton, above, n 38, p 166.61 Bracton, above, n 38, p 166-7.62 Bracton, above, n 38, p 33.63 In this part of the argument I have drawn on Brian Tierney, "Bracton on Government" (1963) 38

Speculum 295, esp. pp 314-6, as a cursory reading of that article will make plain. Tierney explains a canonistic parallel on which Bracton may well have drawn for his arrangement. I have not referred to that point as I wish to consider how Bracton’s arrangement illuminates his conception of English government. Certainly it is part of my argument that Bracton operated consistently within the intellectual structure of Roman jurisprudence: see n 37 above.

64 Bracton contrasts the King’s ordinary and delegated jurisdiction; Bracton, above, n 38, pp 166-7.65 A B White, "Was There a ’Common Council’ Before Parliament?" (1919) 25 American Historical

Review 1, p 4.

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occasions rather than as sessions of an institution".66 The value of the above insight to the present argument then is that it suggests thirteenth century people knew two types of assembly in English government:

* formal assemblies, with rules defining with reasonable clarity matters such as representation, membership, procedure, decision making. Such an assembly would be expected to speak its decision with one voice, abstracted from the members;

* informal assemblies where such matters were not defined and which were summoned to give counsel more than reach decisions.

How would one know what sort of assembly is appropriate in a particular instance? The distinction is important as an assembly of the first type would expect to give both counsel and consent relevant to a course of action whereas an assembly of the second type might expect to give counsel only. My answer is that the character of the assembly depended on the normative principles around which the assembly was formed and which gave meaning to its activity. Those normative principles could mean that matters such as representation, membership and decision making needed to be defined with clarity so that the persons for whom the assembly spoke would legitimately be bound. On the other hand these normative principles could mean that such matters could be left relatively open and attention concentrated on other matters.

It is fair to say at this stage that there are problems with this two fold classification of assemblies. Both Gianfranco Poggi and Gaines Post see what is described above as "informal assemblies" as mere ad hoc feudal assemblies, operating within the normative presuppositions of feudal government.67 In the work of each writer this would place a barrier between these assemblies and what is above called "formal assemblies" as the latter arose within a quite different governmental conception, namely one

66 Gavin Langmuir, "Per Commune Consilium Regni in Magna Carta", Studia Gratiana, Vol XV, Post Scripta, Rome, 1972, 467, pp 468, 477. Langmuir, independently of White, reached precisely the same conclusion about the use of the terms "consilium" and "concilium". Langmuir’s research and argument, combined with White’s, mean we need not be concerned about White’s reservation about the statement quoted in the text: that while he was convinced it was true it was strictly an assertion. White himself recognised that his reservation was ex abundata cautela, White, above, n 65, pp 3-5.

67 Gianfranco Poggi, The Development of the Modern State, Hutchinson of London, 1978, Ch III, p 47. Gaines Post, "A Roman Legal Theory of Consent, Quod Omnes Tangit, in Medieval Representation" [1950] Wisconsin LR, 66, p 67, and, Gaines Post, "Plena Potestas and Consent in Medieval Assemblies" (1943) I Traditio 355, p 371.

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framed within Roman jurisprudence and which seeks to accommodate more than the feudal aristocracy in its conception of the kingdom. The present argument requires that one recognise two types of assembly, one formal and one informal, operating within the post feudal polity. Furthermore, even though this proposition is based on an argument by White and Langmuir on the use of the words "consilium" and "concilium", neither of them uses that argument to propose an arrangement such as is here proposed. White is concerned to propose the historical discontinuity between parliament and various manifestations of commune consilium, a proposition that seems closer to Poggi and Post than to the present proposal. However, White’s actual discussion shows that the concept commune consilium could continue in the English constitutional arrangement where representative assemblies drawn from the counties and boroughs are also found. This can be said of Langmuir’s discussion also. I have persisted with my classification of formal and informal assemblies co-existing in the post feudal English polity, although not without some diffidence, because Bracton clearly associates what is above called "informal assemblies" with Romanised kingship. Also, the above authors are concerned with the phrase "per commune consilium regni" which appears in chapters 12 and 14 of the Magna Carta granted by king John. Bracton no doubt was not thinking of any historical connection to this conception. Bracton’s curia, it is argued, is specifically directed to tensions in the concept of kingship-under-the-law, which tensions were generated precisely by the re-constitution of kingship within Roman jurisprudence.

The two types of assembly had important features in common, and these features were all related to the fact that they existed in a polity where the presuppositions of feudal kingship had been dissolved by the reconstruction of kingship within medieval Roman jurisprudence. However, both types of assembly dealt with issues posed by the concept kingship-under-law within that re-construction. Perhaps the most important similarity is that in each case assembly members participated not in discharge of personal political power proceeding directly from the personality but as members of a corporate group defined by legal privileges and immunities. This indicates another similarity: in each case the assemblies cooperated with the king in the business of rule.

But there was a significant dissimilarity between the two types of assembly, and that lay in the way in which they cooperated with the king. Take first the informal assembly. This assembly, in Bracton’s conception, participated in the king’s rule itself, by enhancing his jurisdiction and then addressing

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itself to precisely the same question the king had already addressed within that jurisdiction. Together he and they made a societas, more powerful in its jurisdiction than either of its component parts, and addressed directly to issues that arose through exercise by the king of his jurisdiction. In other words the assembly of king and magnates sought to express the presuppositions of the king’s rule (to do justice within the law) and allow their normative force to operate directly in unmediated fashion. The normative presuppositions of this type of assembly were not that the magnates will seek to coerce the king; rather that they will offer him wise counsel. Not that the meeting of king and magnates will be confrontationist; rather that by broadening the basis of consideration the correct course for the king to follow will become apparent and he will in fact follow it. In these circumstances issues of representation and procedure did not present themselves. The magnates were to give counsel rather than consent and that counsel would be tested by its wisdom rather than by who gave it. Now if the advice was justified by its wisdom then ipso facto it claimed participation in the king’s rule which was itself justified by its wisdom (the concept of wisdom, of course, is understood to be indivisible). This point is simply crucial to grasp. This body could participate in the king’s rule precisely because its counsel was justified by its wisdom, because wisdom was itself the justification for the king’s rule. The magnates’ privileges and immunities were not at risk. If they were then consent would become an issue and the situation would change.68

In the case of the formal assemblies however consent was in issue and that is exactly why issues of representation, membership and decision making came on the agenda. Indeed what we have here is the polity of the estates, or standestaat.69 Within the standestaat the estates "stood over against the ruler" and "represented the territory to him".70 This expressed a public relationship of rule between king and territory, rather than a societas of king and counsellors. The estates were associated with the king in his rule but they did not participate in his sovereignty.71 The association involved both support and opposition because the members of the estates always acted in defence of the privileges and immunities by which they were defined. They "voiced their protests, restated their rights, formulated their advice,

68 Cp Langmuir, above, n 66, pp 480-1; Nederman, above, n 53.69 Poggi, above, n 67, Ch III.70 Poggi, above, n 67, p 47.71 Poggi, above, n 67, p 52.

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established the terms of their collaboration with the ruler, and shouldered their share of the burdens of rule".72

In these circumstances the issue of consent came squarely on the agenda. Indeed, the standestaat "confronted the ruler with the stande and associated the two elements in rule as distinct power centres".73 With normative presuppositions such as those, questions of representation, membership and decision making present themselves for resolution.

The point can be made clearer if we examine the rules of representation. The principle ”ut quod omnes similiter tangit, ad omnibus comprobetur: what touches all (equally or similarly), shall be approved by all" was taken from Roman private law, namely the law of guardianship where it meant that several guardians with undivided administratio over the ward must all exercise their authority in matters concerning the ward.74 The maxim quod omnes tangit was applied to issues of consent in governmental matters in canon law and, indeed, it was via this route that it was first seen in England in a public context.75 The civilians and canonists developed the idea that every kind of ius was accompanied by the right of consent. This represented ius as a type of authority and thus it was easily combined with the maxim quod omnes tangit. The resulting principle was that if a person wanted to deal with a thing in which different persons had an interest, their consent must be obtained.76 Now how would this principle enter government? Recall Bracton’s discussion of the grant of liberties.77 Bracton begins by saying the king has ordinary jurisdiction and power over all within the realm, also justice and government, etc. From this stock of rights, jurisdictions and prerogatives the king may grant certain privileges to private persons, whereupon they operate as liberties and franchises. Bracton goes on to say when the king has granted a liberty he cannot resume it de jure,78 In other

72 Poggi, above, n 67, p 44. "Within these assemblies, each estate spoke for itself, rather than for some alleged general interest; each defended its own peculiar privileges against the pretensions of the other estates. In the zealous defence of corporate privileges, identified with unchanging law (ius), lay ... the kind of freedom typical of this aristocratic society". RM Unger, Law in Modern Society, The Free Press, New York, 1976, pp 156-7.

73 Poggi, above, n 67, p 68.74 Post, "... Quod Omnes Tangit...", above, n 67, pp 66-8.75 Edwin Hall, "King Henry III and the English Reception of the Roman Law maxim quod omnes

tangit", Studia Gratiana, Vol XV, Post Scripta, Rome, 1972, p 127.76 Post, "... Quod Omnes Tangit...", above, n 67, pp 68-71.77 Bracton, above, n 38, pp 166-70.78 Bracton, above, n 38, p 169.

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words, the matter passes into the realm of ius and it cannot be dealt with without the consent of the holder. But precisely because the consent is part of the conception of the ius, the right to give consent cannot in principle be used as a means to review the king’s action from which it is logically distinct. Even if the king sought to deal with the thing again, which he could not do without consent, that consent came on the agenda legally only because it was part of the ius. Therefore the issue of consent was trapped conceptually within the issue of whether the holder would allow invasion of the ius; it could not expand to authorise review of the royal policy of why invasion of ius was contemplated. When this was combined with the principle that the king was responsible for the common good, it followed that in certain circumstances consent could be demanded.79 Gaines Post, from whom this argument is derived, is correct when he says the maxim quod omnes tangit did not demonstrate any principle comparable to modem theories of representation and consent. It merely demonstrated the medieval principle that government was set in law. The consent was judicial, not political.80

The principle quod omnes tangit was important in two other ways. Firstly it broadened the range of those whose consent the king needed to govern. In England this expanded from the feudal aristocracy to the knights and the burgesses. Secondly, the meaning of quod omnes tangit was sought in legal conceptions rather than in its political potential. The result was quod omnes tangit paradoxically built into a principle of representation which enhanced the power of public institutions rather than the power of the people.81

The other main medieval principle of representation, plena potestas, also operated within a judicial conception of government under law. Post shows how the principle of plena potestas was taken from the Roman law of attorneyship and applied to representative assemblies. Again it was a private law concept applied in a public context but always locked in its private presuppositions. In Roman law the principle meant the attorney or proctor had authority not only to represent the principal before a court but to bind the principal to the decision of the court. In other words, if the attorney was armed with plena potestas, this meant the principal consented both to the

79 Post, "... Quod Omnes Tangit...", above, n 67, pp 76-7.80 Post, "... Quod Omnes Tangit...", above, n 67, pp 76-7.81 For example, see Post’s explanation of how quod omnes tangit was deflected from its logical

extension that the consent of all meant literally universal consent. Post,"... Quod Omnes Tangit...", above, n 67, pp 71-8.

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representation and to the jurisdiction of the court. But of course, the court in reaching its decision moved not within the representative authority of the attorney or proctor but within the law. In other words plena potestas bore not at all on the process by which the court exercised its jurisdiction - if anything it enhanced that jurisdiction rather than constrained it. And this is because the normative power of plena potestas was locked conceptually in the private relationship between principal and attorney.82 When this concept is transferred to representative assemblies which, one must recall, were also conceived as courts acting within the law, Post concludes:

Plena potestas, then, stood not for political, sovereign consent, but for judicial-conciliar consent to the decisions of the prince and his high court and council.83

When the communities were asked to return members with plena potestas this was not because they were asked to participate in the sovereignty; it was so the representatives by their consent would bind the constituents who had sent them. Again the conception is rooted in and derives its normative force from the right of consent of constituents attached to their ius - a private notion as we have seen that conceptually cannot embrace the public interest. Of course, if the representatives were called to approve a subsidy, the government may have to convince them of the need for it. Apart from the fact the government always has the best information on these issues, the plena potestas of the representatives focused their attention not on the public issue but on shielding their constituents from the impact of government policy as best they could.84

Therefore, says Post, plena potestas and quod omnes tangit are not the twin roots of popular sovereignty founded on parliament. Of course, as Post recognises, representatives from time to time may have been able to mould circumstances in such a way as to force concessions from the government. But conceptually these two principles are locked in a legal theory that confines their normative meaning to a judicial conception of consent centred on the integrity of private rights85 and this is precisely because of the medieval conception that government operates within the law.

82 Post, "Plena Potestas above, n 67, p 355.83 Post, "Plena Potestas ..." above, n 67, p 408.84 Post, "Plena Potestas ..." above, n 67, pp 374-5.85 For an excellent illustration see JG Edwards, "Taxation and Consent in the Court of Common Pleas,

1338" (1942) 57 EHR pp 473-8.

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I shall now summarise the conception of government, formed by the historical narrative to which I have been alluding, in which Edward’s reign (1307-27) should be placed. Government is set in law and is essentially the business of the king. King and community are not sharply differentiated and meet in the crown. However, within the crown, king and community are in a dialectical relationship. For this purpose too the concept of the community has broadened since Magna Carta.

The importance of the dialectical element can be seen in the barons’ declaration with which they met the young Edward II at his Easter parliament, shortly after his coronation in 1308. Speaking through the earl of Lincoln the barons declared their allegiance was to the crown rather than to the person of the king. They went on to declare that the king should execute the judgement the barons had made (against Piers Gaveston).86 The problem with this approach - which was undoubtedly unconstitutional - is that it quite ignores the dialectical element within the concept of the crown. The text of the declaration suggests that the barons’ constitutional model was the situation where the king is personally incapacitated, owing to youth or infirmity for example. In such cases the dignitas and the administratio of the king may be separated, the former alone remaining with the king. This process was well established in canon law and had occurred in England.87 However in those cases the administratio was always conferred on a person or body as curator so that the dialectical element in the crown might be maintained. This is the element the barons missed. In effect they sought to abolish the king as an independent element within the crown and replace the crown with themselves.88

I will now summarise the deposition proceedings in January 1327.89 On 26

86 For the text of the declaration see HG Richardson and GO Sayles, The Governance of Medieval England, Edinburgh UP, 1963, English translation pp 468-9. Cp the criticism in the text with Kantorowicz, above, n 9, pp 364-6; and Ullmann, above, n 10, p 181.

87 Henry III had succeeded in 1215 at the age of nine. For the constitutional arrangements see sir Maurice Powicke, The Thirteenth Century, 2nd ed., Clarendon Press, Oxford, 1962, Ch. 1. For the position in canon law see Edward Peters, "Rex inutilis: Sancho II of Portugal & Thirteenth Century Deposition Theory", Studia Gratiana, Vol XIV, 1968, 255.

88 Incidentally, when Edward and his party were captured in November 1326, a number of them were tried and executed for treason, presumably within the law of arms but in the absence of the king. This again suggests a separation of the king from the crown.

89 There are a number of accounts of the proceedings, and they do not agree in detail. Roy Haines, The Church and Politics in Fourteenth Century England, Cambridge UP, 1978, pp 168-175, comments on the difficulty of obtaining a fully reliable account of the proceedings. It seems to me that the sequence is the important thing : in what order were the decisions taken? How were the

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October 1326 prince Edward, son of the king, was appointed custodian of the realm. It was believed at the time that the king was physically absent from the realm, which could justify the appointment of a custodian, but the queen and her party were obviously thinking on the run as young Edward was a minor and himself in need of a guardian. Actually the king was in south Wales. On 28 October 1326 writs were issued in the king’s name for a parliament to meet at Westminster on 14 December. Edward was captured on 16 November, whereupon the custodian’s authority should have lapsed. However, on 20 November Edward was relieved of his great seal and taken to Kenilworth castle. On 3 December writs of supersedeas postponed the assembly at Westminster until 7 January 1327.

The assembly met on 7 January. The queen and prince Edward were there but the king was not. It is not clear whether he absented himself or was kept away. Constitutionally, it makes no difference. Probably charges against Edward were read on 7 January. On 8 January Walter Reynolds, archbishop of Canterbury, preached on the theme: the voice of the people is the voice of God. On 13 January Roger Mortimer announced to the assembly that the magnates and prelates, at a meeting held sometime before, had agreed unanimously that the king should be removed from the government of the realm and that his eldest son, prince Edward duke of Aquitaine, should reign in his place. The reasons given were that Edward was deficient and a destroyer of the nobles, the church and the crown. These were the themes constantly stressed in the charges against Edward: inadequacy, destruction of nobles, church and crown, along with adherence to evil counsel and loss of lands of the crown. Adam Orleton, bishop of Hereford, preached on the theme: the king being foolish will ruin his own people. A delegation was chosen to take the news to the king at Kenilworth. The delegation was composed of members from all three estates, not just magnates and prelates. The bishops of Winchester and Lincoln and the earl of Leicester first met

bishops’ sermons timed to relate to the decisions that had been taken? For these matters I have relied mainly on a chronicle account that appears as an appendix to Natalie Fryde, The Tyranny and Fall of Edward II, Cambridge UP, 1979, pp 233-5. Macquarie University BLegS student, Bill Kavanagh, kindly translated it for me. Apart from this, I have put together my account of the proceedings from various sources: see Fryde, above, Ch 14; Bertie Wilkinson, "The Deposition of Richard II and the Accession of Henry IV" (1939) 54 EHR 215; MV Clarke, Medieval Representation and Consent, 1936, reissued 1964 by Russell and Russell, New York, Ch IX; M McKisack, "London and the Succession to the Crown During the Middle Ages" in Studies in Medieval History Presented to Frederick Maurice Powicke, RW Hunt et al (eds), Clarendon Press, Oxford, 1948, p 76; William Stubbs, The Constitutional History of England, Vol II, 3rd ed, Clarendon Press, Oxford, 1887, pp 378-81. For the documents see SB Chimes and AL Brown, (eds) Select Documents of English Constitutional History, 1307-1485, pp 32-38 (all in either French or Latin).

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with Edward in private and told him that if he did not cooperate in the decision of the peers and prelates, both he and his dynasty could be replaced on the throne. Edward came into the castle hall and, when his assent to the decision of the prelates and magnates was sought, publicly agreed to resign. He was reported to be dressed in black, weeping and half fainting. The date was probably 20 January. The next day one William Trussel, calling himself procurator of the prelates, earls and barons, and of others named in his procuracy, renounced fealty and allegiance on their behalf, also homage. A procurator was understood to hold the authority of his principals in the same manner as an attorney. These persons, said Trussel, henceforth held Edward to be a private person without any manner of royal dignity.

The news was returned to Westminster and John Stratford, bishop of Winchester, preached on the text: I ache in my head. The archbishop of Canterbury again preached on the theme: the voice of the people is the voice of God. Speaking in French, the language of the court and the language of the law,90 he told the people that they had been afflicted for a long time with various oppressions by the king and his evil counsellors. Therefore, he said, the people cried to God for a remedy. Now, he said, their voice had been heard, because by the unanimous consent of the magnates Edward had been deprived of government and his son set up in his place, if only the people would consent. The representatives as one stretched out their hands and cried: "Let it be done! Let it be done! Let it be done! Amen."

The peace of young prince Edward was proclaimed on 24 January. His reign began on 25 January, 1327. He was fourteen years of age.

How to interpret this procedure? One could interpret it as merely a coup d'etat, as Frederic Maitland and Bertie Wilkinson tend to do.91 If the procedure reduces simply to this then it is an event with no place in the history of the constitution. The interpretation looks unlikely when we recall that everyone thought of government injudicial rather than in political terms. One could interpret the deposition of Edward II as an event in the history of parliament as Maude Clarke does.92 So too do Charles Wood and William

90 George Woodbine, "The Language of English Law" (1943) 18 Speculum 395.91 "There was no formal judgement; the magnates simply determined that Edward was unfit to rule"

and "It was ... deposition by the magnates, with the co-operation, agreement and acclamation of the people". Wilkinson, above, n 89, pp 228 and 229. Cp FW Maitland, The Constitutional History of England, Cambridge UP, 1911, pp 190-1.

92 Clarke, above, n 89. I think Miss Clarke’s argument is vulnerable to the criticisms of Wilkinson, above, n 89, pp 228-9.

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Dunham. They have sketched an ambitious analysis in which all the depositions, from that of Edward II in 1327 to that of Richard III in 1485, are linked in an historical narrative the normative meaning of which is such that, by 1485, the constitution was dominated by parliament which, while legally bound to the king, rooted its political authority in the kingdom (by which the authors mean the estates of the realm).93 This "neo-Stubbsian" thesis has been criticised convincingly by JW McKenna.94 My answer to these "parliamentary" interpretations is this: even if the assembly of January 1327 was parliamentary95 its activity cannot have initiated an historical narrative the meaning of which is that the king became progressively more subject to the political and/or legal review of the community of the realm. The reason for this is that the principles of representation of the time simply could not extend conceptually to embrace the public interest of which the king was guardian. Therefore, the normative basis of representation was too narrow to give that concept the power to initiate an historical narrative with the meaning argued for. If Dunham and Wood are correct the normative source of their narrative would have to be in something other than the principles of representation. But Dunham and Wood do not want to put that sort of argument. They want to present the English medieval representative assemblies as engaged in the unmaking and making of kings and thereby engaged in the progressive democratisation of authority. They wish to have the transfer of effective authority from king to kingdom in place by 1485 in order to argue that the English state created in the Tudor century was rooted constitutionally not in the power of the king but in the authority of the kingdom. However, it will not do. The normative basis of representation could not supply the necessary authority to the representative assemblies. Up until the early seventeenth century, no one conceived of parliament as the site of an opposition politics.

The deposition procedure of 1327 could be interpreted as an appeal to the judgment of God, with the magnates playing the role of Moses. To some extent the procedure and the language used suggest this interpretation. If the

93 William Dunham and Charles Wood, "The Right to Rule in England: Depositions and the Kingdom’s Authority, 1327-1485" (1976) 81 American Historical Review 738. One should also consult the following articles by Charles Wood: "Personality, Politics and Constitutional Progress: The Lessons of Edward II", Studia Gratiana Vol XV, Post Scripta, Rome, 1972, p 520; "The Deposition of Edward V" (1975) 31 Traditio 247; "Celestine V, Boniface VIII and the Authority of Parliament", (1982) 8 Jo. of Medieval History 45.

94 JW McKenna, "The Myth of Parliamentary Sovereignty in Late Medieval England" (1979) 94 EHR 481.

95 I think Wilkinson is convincing that it was not: Wilkinson, above, n 89.

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deposition were interpreted as the execution of such a judgment it could have initiated the wave of imperialistic nationalism that began in the following reign and culminated in the political theology of the Tudor lawyers and the mystery of the king’s two bodies.96 But the procedure seems much too secular for this interpretation, particularly in the role taken by the bishops, who seem to have acted more as prelates of the kingdom than as princes of the universal church.

Looking at the procedure one is struck by the way in which an attempt was made to interact the elements of the crown - king, magnates, prelates, commons - in a meaningful way. Each element activated the normative character of its role: the magnates took the political initiative, the prelates appealed to the religious presuppositions of the kingdom’s authority as if to create a moral atmosphere in which its normative power could operate, the king listened to and considered the counsel of his advisers, the commons assented to the whole process. This carefully orchestrated interaction suggests an attempt to create the moral community which is the crown and activate its authority. In other words, I am suggesting that the assembly of 1327, combined with the king as it was when the delegates went out to Kenilworth at a crucial stage in the process, was the 1327 version of Bracton’s curia: that informal assembly which operated within the presuppositions of the king’s authority in unmediated fashion, determined the best course within the law for the king to follow and sought to persuade him to take it. Such a body could not rule the king, the king was an essential part of it after all, but it could address itself to the same public issue to which he could address himself. Therefore, such a body could not depose the king, but it could reach a conclusion that he should abdicate. There was a settled legal principle that the king could not alienate the rights of the crown, but that meant he could not alienate them to his private advantage. It would not prevent the public act of abdication.97

This seems a reasonable interpretation of the process, but there is a further problem: the charges against Edward do not allege specific crimes, they

96 JW McKenna, "How God Became an Englishman" in De Lloyd Guth and John W McKenna (eds), Tudor Rule and Revolution, Cambridge UP, 1982, p 25.

97 See Robert Hoyt, The Royal Desmesne in English Constitutional History: 1066-1272, New York, Greenwood Press, 1968, pp 164-6, 232-3; Ernst Kantorowicz, "Inalienability: A note on Canonical Practice and the English Coronation Oath in the Thirteenth Century" (1954) 29 Speculum 488. The same principle was evidently not settled in contemporary France: Elizabeth AR Brown, "Royal Salvation and Needs of State in Late Capetian France", in Order and Innovation in the Middle Ages, William C Jordan, et al (eds) Princeton, UP, 1976, p 365.

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rather allege a general deficiency. Is there a conception of kingship which will enable this idea to be grasped in a dialectical process between king and community and given teeth ’’within the law"? I think there is and it is the conception of kingship in John of Salisbury’s Policraticus.

In a classic article John Dickinson analysed the conception of kingship in the Policraticus.98 99 Dickinson argued that John of Salisbury saw the king as "minister of the public interest" and servant of the people, but that he received his ministry not from the people but from God. The relationship of king to people then is the same as that of guardian to ward." Furthermore, Dickinson’s analysis led him to conclude that John’s conception of kingship lacked "any clear distinction ... between the moral and the political; abuse of public power is conceived simply in terms of a breach of personal morality."100 On this reading of John of Salisbury there is no room for constitutionalism. If the king defaults this is essentially a sin, a matter between him and God. Furthermore, on this reading, kings operate on the axis of rex /wstus and rex tyrannus and there would be no way to comprehend the defective but sinless king, rex inutilis, in between.

Dickinson places Policraticus in a sweep of "patristic literature in contact with the institutions of the earlier Middle Ages".101 However, in recent years, Cary Nederman, in a series of (often co-authored) articles has been relocating John of Salisbury in a broader literary tradition, emphasising also his debt to pre-christian classical thinking and especially to such of Aristotle’s work as was available to him.102 This interpretation puts a completely different perspective on Policraticus and enables one to find in it a structure on which to hang a constitutional argument.

Nederman and Bruckmann find in John of Salisbury the Aristotelian concept of virtuous knowledge.103 This throws light on John’s concern that the prince must be chaste and shun avarice, that he should not surround himself with glory that would magnify his importance and emphasise the power of

98 John Dickinson, "The Medieval Conception of Kingship and some of its Limitations, as Developed in the Policraticus of John of Salisbury" (1926) 1 Speculum 308.

99 Dickinson, above, n 98, pp 312-4.100 Dickinson, above, n 98, p 325.101 Dickinson, above, n 98, p 308.102 See the bibliography in Nederman’s edition of Policraticus, above, n 21, pp xxvi-xxviii. The

argument over the next few pages rests upon the ideas and analysis developed by Nederman.103 Cary Nederman and J Bruckmann, "Aristotelianism in John of Salisbury’s Policraticus" (1983) 21

Jo of the History of Philosophy 203.

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his will. This is not so he may be holy but rather so that he may develop a virtuous disposition so that he will know what it means to be both "the minister of the public utility and the servant of equity".104 In other words, virtue is the essential concept that enables John of Salisbury to solve the apparent contradiction that while the prince is "an absolutely binding law unto himself" he is also the servant of equity. True it may be that the judgment of the prince is the judgment of God, but this is not because the prince is a mere conduit: it is because the prince’s "eyes must look at equity".105 Knowledge and virtue then require the participation of the personality. Virtue, says John, is "confined to two boundaries": "The knowledge and practice of goodness".106 John illustrates the point by retelling the story of Adam who greedily sought knowledge without going through the necessary learning, experience and practice of goodness. Had he done that Adam would have acquired not only knowledge but the ability "to exercise the subtlety of his reason" and hence the power of judgment.107 Just rule then consists not so mudi in the holiness of the prince and his readiness to obey God as in his overall disposition which places him in control of his tendencies to frivolity and susceptibility to flattery and directs his attention to justice:

The business of a circumspect man so often succeeds in so far as the deceits of the insidious never impede him and he advances along a sort of invincible path not open to everyone towards the end of his intended destination.108

The prince’s personal qualities are important not because they are the moral foundation of obedience but because they are the moral foundation of virtue; not because they bring him into contact with God but because they bring him into contact with God’s justice. In the same way, if the prince re-directs his disposition to his own personal satisfaction and gratification, as did Adam, disaster will be the result. Thus Julius Caesar, who had once "dominated

104 Policraticus Book IV Ch 2, above, n 21, p 31.105 Policraticus, Book IV Ch 2, above, n 21, pp 30-31.106 Policraticus Book VIII Ch. 25, above, n 21, p 226.107 Policraticus, Book VIII Ch 25, above, n 21, p 227.108 Policraticus Book VI Ch 22, above, n 21, p 130. On the evils of flattery see Book IV.

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peoples", injured his invincibility when he became "ensnared in the bonds of Venus by a shameless woman".109

Among all of those things that important men are used to confronting, none of them may be thought more pernicious than that delightful allurement of fortune which turns one aside from the vision of truth.110

The virtue of the prince then is obtained through learning, experience and mastery over that which would destroy it, such as too great a susceptibility to flattery, too great an attachment to frivolity or too great a fondness for the pleasures of the flesh. John’s constant insistence that virtue is a mean between two vices shows that this mastery is itself an emanation of the virtuous personality: it is not merely habitual self control.111 Similarly, virtue is not a constantly recurring characteristic of a series of decisions. It is more a guarantee that the virtuous ruler will judge matters correctly according to a proper standard. Consequently, rule does not proceed directly from the virtuous personality. It is rather that virtue turns the eyes of the ruler towards equity. This is a typically medieval Christian idea. The moral meaning of princely virtue is to connect the prince to a pre-existing standard of justice identified with God. That is how the prince rules. The point is illustrated in the biblical story of the woman taken in adultery. When the scribes and pharisees brought her to Jesus they implied a distinction between what the law commanded to be done and what Jesus would direct to be done. Jesus refused to say and indicated the problem with a judgment that proceeds directly from the personality by saying:

He that is without sin among you, let him first cast a stone at her.112

109 Policraticus Book IV Ch 3, above, n 21, p 35. See also John’s telling of the story of Dido, queen of Carthage, Book VI ch 22, above, n 21, pp 130-1. Cary Nederman and Elaine Lawson, "The Frivolities of Courtiers Follow the Footprints of Women: Public Women and the Crisis of Virility in John of Salisbury" in Ambiguous Realities: Women in the Middle Ages and Renaissance, Carole Levin and Jeanie Watson (eds), Wayne State UP, Detroit, 1987, p 82.

110 Politicraticus Book I Ch 1, above, n 21, p 9.111 Cp. Nederman and Bruckmann, above, n 103. Cary Nederman has elsewhere stressed that, in the

Aristotelian ethical scheme, "virtue itself must never be confused with mere morally correct action". It is rather "a stable foundation for moral choice". Nederman, "Character and Community in the Defensor Pads. Marsiglio of Padua’s Adaptation of Aristotelian Moral Psychology" (1972) XIII History of Political Thought 377, pp 378-83.

112 John 8:7.

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When the pharisees challenged Jesus, basically saying there was no basis for his claims except for his own word, he replied:

Though I bear record of myself, yet my record is true: for I know whence I came and whither I go; ... Ye judge after the flesh; I judge no man. And yet if I judge, my judgment is true: for I am not alone, but I and the Father that sent me.113

Always the message is the same: virtuous knowledge is not in itself the foundation of political rule. The importance of virtuous knowledge is that it connects the ruler to the already existing and eternal justice, and that is the foundation of political rule. This is a subtle but important departure from the ancient tradition and it is found throughout the Policraticus.114 In that Christian chink lies the seed bed of modern constitutional principles not found in the Athenian polis, especially the principles of rule of law, independence of the judiciary and due process,115 because the acts of the prince, at least in principle, can be measured for validity. However, the more important point for the moment is this: virtuous knowledge is essential to Christian government but virtue itself is no longer rooted in nature. In Christian thinking everyone begins equal before God. Ones ability to acquire the virtuous personality necessary for rule depends on ones learning, experience and ability to find a mean between those vices that would destroy it. In principle, such a personality can be acquired by anyone and can be lost by anyone. This is brilliantly illustrated in Policraticus with the story of Dido, queen of Carthage. John says her rule began in virtue because in the beginning it was characterised by prudence and foresight. This is important because women were in principle excluded from political activity in Greece. But her rule ended in flames because she failed to keep her femininity in check when Aeneas came on the scene and so gave herself over to lewdness and luxury.116 This is the real seed of constitutionalism in the Policraticus. Kingship for John operates on the axis of the rex iustus and the rex tyrannus as said before. The tyrant is not so much the bad king as the vicious king: "The origin of tyranny is iniquity" and it consists in the use of power to

113 John 8:14-16.114 "... the prince most properly punishes transgressors not according to some wrathful motive, but by

the peaceful will of the law." Book IV, Ch 2, above, n 21, p 31.115 Harold Berman, "Influence of Christianity on Western Law" in The Sociology of Law, William Evan

(ed), 1980, p 424.116 Policraticus Book IV Ch 22, above, n 21, p 131. See also Nederman and Lawson, above, n 109.

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pursue ’’prohibited goals".117 Consistently with the super-worldly character of the condition and the worldly character of the institutionalisation of power, this definition can fit other than princes. But the axis of the rex iustus and the rex tyrannus now turns not merely on good and bad, but on the concepts of personality, power, law and justice. Understood in this way, the axis of rex iustus/rex tyrannus has room for rex inutilis or the defective king. The emphasis in John’s axis is now taken off the subjective moral condition of the king and therefore space appears on the spectrum for the rex inutilis, the king who is not so much bad as defective. While not actually vicious, his defective personality prevents his being virtuous. Lacking virtue, the rex inutilis does not connect to eternal justice and so one cannot be confident that he will direct his power to proper ends.

The interpretation of Policraticus being proposed also involves a renegotiation of the relationship between king and community. John says:

The public welfare is ... that which fosters a secure life both universally and in each particular person.118

The public and private are not different in kind - as, of course, they cannot be as both are ultimately rationalised in the eternal law. Consequently, king and community are not fundamentally distinct either, and John constantly represents them as a body, an image he uses not merely as a linguistic flourish but as a genuine teaching device. The first thing the body image teaches is the unity of king and community:

a blow to the head ... is carried back to all the members and a wound unjustly afflicted upon any member whomsoever tends to the injury of the head.119

Treason then is an attack not just on the head but on the whole body. And as the body is itself held together by the desire for justice:

this crime is to be regarded by judges not as an occasion for the veneration of the majesty of the prince but as a quest for truth.120

117 Policraticus Book VIII Ch 17, above, n 21, p 191.118 Policraticus Book III Ch 1, above, n 21, p 14.119 Policraticus Book VI Ch 25, above, n 21, p 137.120 Policraticus, Book VI Ch 25, above, n 21, p 138.

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In other words, the body image teaches that when the ideal of just government itself is threatened, the political distinction between king and community itself dissolves in a common quest for truth. The significance is now clear of the text chosen by John Stratford bishop of Winchester on which to preach after the return of the delegates from Kenilworth: I ache in my head.

My conclusions from all this are as follows:

1. Edward II was not deposed; he abdicated. As far as one can tell, this abdication was a free if unhappy act of Edward’s. It would be of no legal effect if it were forced. The act of the bishops in telling Edward in private that if he did not resign his dynasty might be destroyed was not necessarily meant to coerce him. Quite likely the bishops meant to be helpful to Edward rather than threatening. The bishops’ remarks were directed to the succession and were apparently meant to put Edward in possession of all the facts and thereby counsel him as to how to bring about the smooth succession of his son. The bishops’ probable meaning was that in law Edward was already de-kinged by his inability to develop just government. If he now acted within the law and resigned the kingship the smooth succession of his son was much more likely. Similarly, the story that Edward entered the hall at Kenilworth to announce his resignation dressed in black, weeping and half fainting, falling to the floor to be raised "half dead", does not necessarily mean that he was coerced. The story is possibly a literary flourish of the chronicler as the only means of capturing the bizarre circumstance that king Edward II had died and sir Edward of Caernarvon was a mourner at his funeral.121 It has to be said too that all the stories of Edward’s degradation (being given muddy water to shave, being housed in a room over the castle latrine) come from the time after the Kenilworth resignation.

2. The abdication was the act of the king further to the counsel of the kingdom, formed by the interaction of the component parts (king, prelates, magnates, commons) carefully orchestrated so as to express the kingdom as a moral community. But the kingdom is not an Aristotelian polis: the interaction does not in itself create the community. Rather it

121 Cp Wood, above, n 93 "Celestine V..."; Maitland, above, n 91, p 191 n 1. The details come from Geoffrey le Baker’s account which, according to one student of the chronicles, is more literary than historiographic: Antonia Gransden, Historical Writing in England, ii, Routledge & Kegan Paul, London, 1982, pp 4, 40.

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is the interaction of the parts in pursuit of the Christian principle that all multiplicity returns to unity that creates the community. This body was then able to participate directly in those principles of law and justice normally reserved to the king. This scheme was perfectly consistent with the schemes both of John of Salisbury and of Bracton.

Furthermore this process tended to make the decision secure and to make it difficult for people to raise political objections to it later. This was not because everyone had agreed. It was rather because, within the organological conception of politics, the harmonious integration of the parts, with each part playing its characteristic role, meant the body politic was at its most healthy and so at its optimum level of functioning. This idea of the moral interaction of the parts to create something more than the sum of the parts is found in ancient thinking but the analogy must not be carried too far. In medieval Christian thinking the morality comes not from the interaction of the parts precisely but from the ability of the multiplicity to express a unity. In other words the source of the morality is the unity, not the reasoned interaction. It is within that unity that everything has its place and it is therefore the unity that lends moral meaning to the interaction.122 It is a teleological view of unity. Each unity pushes towards perfection, but unities that work in harmony are hierarchically organised and push towards ultimate perfection.

This analysis enables us to surmount the objection that only the king could consider a public issue like his own continuance in office. The legally effective judgment was made by Edward, as it had to be, could only be. Contemporary law and legal theory concur that public authority is reserved to the king alone. That is why the legal meaning of the events of January 1327 is abdication. But Edward took this decision when his authority as king was enhanced with the authority of the kingdom on whose behalf he acted. One may say that Edward capitulated when he saw the extent of the opposition and appreciated that his enemies were in control of the situation; that may explain Edward’s decision but it does not explain the legal complex which gave it meaning. Legally Edward could be removed only by his own abdication and it must be understood that legally the abdication could not be forced. It would be of no legal effect if it were. Legally, the abdication came about because the normative basis of Edward’s decision making changed.

122

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Anton-Hermann Chroust, "The Corporate Idea and the Body Politic in the Middle Ages" (1947) 9 The Review of Politics 423, pp 424-33, 437-41.


The authority of king and kingdom was greater than the authority of the king alone and operated in a higher realm of truth; but legally and constitutionally it was still the authority of the king. This interpretation may sound forced to us but it is persuasive because it actually employs the normative power of the medieval Christian principle that all multiplicity finds its meaning in unity.

This analysis, then, enables us to answer the question posed at the beginning of this paper : what was the relationship between king and kingdom in early fourteenth century England and what was the nature of the bond between them?

3. The reason for Edward’s abdication was that he was deficient. He lacked the necessary virtuous personality to connect him to eternal principles of law and justice and thereby deliver justice to the kingdom. This conclusion follows when meaning is given to the charges by placing them in the scheme of the Policraticus: he was incompetent to govern, he had been led by evil counsellors and could no longer distinguish good from evil, he neglected the business of the kingdom for unbecoming labours and occupations. He was incorrigible and had no hope of amendment.123 No specific crimes are alleged. Even things like loss of lands and moving against prelates and magnates are conceived not as crimes against individuals but in their relationship to the government of the kingdom.124 The normative source of Edward’s removal is not to be found in his acts, his behaviour or even his character. It is to be found in the public significance of such things when they are given meaning within an order of just and virtuous government.

4. The fact the charges have meaning when placed within a scheme of just government such as that developed in Policraticus enables us to understand that Edward was not deposed even though charges were led against him, and he did abdicate despite his apparent unwillingness to do so. These matters are a problem only if we are looking for a juristic act by which Edward was de-kinged. There was no such juristic act and no one thought such an act was necessary. Edward was de-kinged by his inability to develop the necessary virtuous personality that would enable him to deliver just government. Legally and morally he had lost the right to govern. The charges against Edward then were not a prosecutorial statement; they were an argument that this state of legal

123

124

Stubbs, above, n 89, pp 379-80.Cp Edward Peters, The Shadow King, Yale UP, New Haven, 1970, pp 236-42.

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affairs existed. Edward’s resignation, with the carefully orchestrated support of the kingdom above described, amounted to a juristic recognition, or judgment, that this legal state of affairs indeed existed. These conclusions follow if we bear in mind the argument earlier in this paper that post Gregorian kingship was constituted within law. It could then also be de-constituted within law. Just as Edward’s authority had not been constituted by a juristic or sacramental act (e.g. unction and coronation) a juristic or sacramental act (i.e. a reverse coronation) was not necessary to de-constitute it. Understood in this way the removal and replacement of Edward II in January 1327 teaches us the power and immense significance for western constitutionalism of the re-constitution of kingship within law as a reaction to the Gregorian reformation.

5. The abdication was not an event in the history of parliament, at least not in the sense argued for by Dunham and Wood.125

6. The abdication was an event in the history of constitutionalism. Like Magna Carta in 1215, the removal of Edward II in 1327 was not merely a tawdry act by opportunist victors seeking a veneer of legitimacy to a coup d'etat. Like Magna Carta in 1215 the removal of Edward II in 1327 is a step in the conceptualisation of the public authority in England, but a step the English took within their traditions of law and representation. This is not because the procedure represented a way to bring the king to account, which it did not. The teleological view of unity and the doctrine of the king above the law mean the authority of the "body" that brought about the king’s abdication operated within a descending, not an ascending, structure of authority. However, the organological conception of the kingdom proposed a harmonious relationship among the parts. In medieval Christian thinking the public/private distinction re-appeared from ancient thinking but it had lost its grounding in nature and hence its normative quality. Thus, whereas Aristotle had said:

it is evident that the state is a creation of nature, and that man is by nature a political animal. And he who by nature and not by mere accident is without a state, is either a bad man or above humanity.126

125 Dunham and Wood, above, n 93.126 Aristotle, The Politics, Book 1; edited by Stephen Everson, Cambridge UP, 1988, p 3.

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St Thomas understood him to mean "man is naturally a social and political animal".127

In other words, in medieval Christian thinking, the social and the political are morally indistinct. Consequently, whereas for Aristotle law and government are rooted in the good of the polis, in medieval Christian thinking they are rooted in the good of the community:

the prince ... rules his people by a will that places itself at their service, ... while individuals merely look after individual affairs, princes are concerned with the burdens of the entire community.128

This observation (from John of Salisbury) gains depth furthermore when we recall that John adopted the Aristotelian conception that virtue is a mean between two extremes. Therefore, moderation is not a virtue in itself but rather a property of all virtuous conduct.129 Therefore, if rule engages the moral personality of the king, it follows that the king’s rule should always be characterised by moderation. This consideration will lead the virtuous king consciously to respect and preserve the liberties of his subjects in his rule.130 And it will ensure that the king never mistakes the security of his own position for the public interest.

The organological representation of king and community then is not a mere literary device: it has a normative meaning. That normative meaning was vindicated in the procedure that removed Edward II in January 1327. Thereby was prefigured the later British constitutional conception of the republic within the crown.131

127 St Thomas Aquinas, Summa Theologica, Qu. 72 Art 4; from Aquinas: Selected Political Writings, AP D’Entreves (ed), Basil Blackwell, Oxford, 1970, p 109.

128 Politicraticus Book IV Ch I, above, n 21, p 28.129 Nederman & Bruckmann, above, n 103, pp 224-5.130 Nederman & Bruckmann, above, n 103, pp 224-5.131 We may then indulge a curious historical parallel. Just on 610 years after the events of January

1327 another Edward abdicated and again it was necessary to surround the king with the authorityof the crown. Edward VIII in November-December 1936, unlike Edward II in January 1327, earnestly desired to abdicate for some weeks before the event. However, for both personal and constitutional reasons, he had to await the support of the government and the parliament. The abdication was eventually achieved by statute, the commissioners for the royal assent assenting on behalf of Edward himself. See Michael Bloch, The Reign and Abdication of Edward VIII, London, Black Swan Books, 1990.

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