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1 the Nature and the Identity of the Constitution During the Minority Of The Nature and the Identity of the Constitution during the Minority of Henry III (1216-1227) Submitted by Stephen Michael Gates to the University of Exeter as a thesis for the degree of Masters by Research in Law in June 2014 This thesis is available for Library use on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. I certify that all material in this thesis which is not my own work has been identified and that no material has previously been submitted and approved for the award of a degree by this or any other University. Signature: ………………………………………………………….. 1 Abstract This thesis investigates the nature of the thirteenth-century constitution by focusing on the minority of Henry III. It is argued that Henry’s succession to the throne was a demonstration of the complicated interaction between hereditary right, designation, and election. It is argued that the distribution of power within the government was, for the most part, ill-defined and varied throughout the minority’s course. It is also argued that there was a fundamental uncertainty about when the minority would end and what role Henry himself would play during the minority. Taken together, it is argued, these demonstrate that Henry’s minority was more of a political settlement than a constitutional settlement. This does not mean that England had no constitution during the thirteenth century but merely that it was more sensitive to the political dynamics of the time than perhaps modern constitutions are and that, compared to modern constitutions, it was much less well defined and lacking a clear unified philosophy. 2 Contents 1 Introduction ................................................................................................. 6 1.1 Introduction ........................................................................................... 6 1.2 Historical Background and Outline ........................................................ 8 1.3 Literature Review ................................................................................ 11 2 Succession ................................................................................................ 22 2.1 Introduction ......................................................................................... 22 2.2 The Road to Newark, October 1216 .................................................... 24 2.3 Interregnum, 19–28 October 1216 ...................................................... 39 2.4 First Coronation, 28 October 1216, Gloucester ................................... 51 2.5 Treaty of Lambeth, September 1217 ................................................... 54 2.6 Concluding Remarks ........................................................................... 55 3 Government and Governance ................................................................... 57 3.1 Introduction ......................................................................................... 57 3.2 The Will of King John .......................................................................... 57 3.3 England as a Papal Fief ...................................................................... 60 3.4 Appointment of William Marshal, 29 October 1216 ............................. 64 3.5 William Marshal’s Government, 29 October 1216 – 7 April 1219 ........ 75 3.6 Government between April 1219 and Autumn 1221 ............................ 81 3.7 Hubert de Burgh’s Ascendancy, Autumn 1221 – January 1227 .......... 85 3.8 End of the Minority, 1227 .................................................................... 90 3.9 How many Regents? ........................................................................... 91 4 Minority ...................................................................................................... 92 4.1 Introduction ......................................................................................... 92 4.2 Henry’s Early Childhood ...................................................................... 92 4.3 Interregnum, 19-28 October 1216 ....................................................... 94 4.4 William Marshal’s Government, 29 October 1216 – 7 April 1219 ........ 95 4.5 Second Coronation, 17 May 1220 ..................................................... 108 4.6 Henry’s Fourteenth Birthday .............................................................. 112 4.7 Events of 1223 .................................................................................. 114 4.8 Events of 1224-1226 ......................................................................... 119 4.9 End of the Ban on Permanent Alienations, January 1227 ................. 120 4.10 Concluding Remarks ...................................................................... 124 5 Conclusion .............................................................................................. 125 5.1 The Stubbornness of Ancient Constitutionalism ................................ 125 3 5.2 The Constitution during Henry III’s Minority ....................................... 126 6 Bibliography ............................................................................................ 129 6.1 Primary Sources ................................................................................ 129 6.2 Secondary Sources ........................................................................... 130 4 Table of Charts Chart 1: Age of dubbing of the viri regales, 1154-1272………………………..101 Table of Cases Re Whiteley (1886) 33 Ch D 347………………………………………………….97 Learoyd v Whiteley (1887) 12 App Cas 727……………………………………..97 Table of Statutes Human Rights Act 1998, c. 42…………………………………………………….126 Statute of Praemunire 1393 [16 Richard II, c.5]…………………………………..63 Succession to the Crown Act 2013, c. 20………………………………………….55 Table of Modern Constitutions Consulted US Constitution………………………………………………………….. …....92, 108 5 1 Introduction 1.1 Introduction Henry III’s minority, which lasted for over a decade, is constitutionally significant. It placed immense strains on the thirteenth-century political system, which somehow needed to balance legitimate with effective government. Henry’s accession may have guaranteed the former to some extent, but as he could not control the government, at least initially, it is difficult to see how he could have legitimized all of its operations. Furthermore, there was little that Henry could have done personally to ensure effective government either by managing the members of his government or through his own actions. His accession might have created a degree of stability in the long-term but, in the short-term, it threatened to paralyse the government and undermine the centralised English state. The strains induced by Henry’s minority were compounded by the lack of clear guiding constitutional principles and the fact that he inherited the throne when the country was in the throes of civil war. Therefore, not only was there the problem about how to structure the government, but there was also not much time to think about it. Moreover, the government was in dire financial straits and the institutions of central government were crumbling away; by the end of the war, only the chancery remained functional.1 One wonders whether this was the time for constitutional niceties. Considering the situation, Hillen and Wiswall said that Henry’s minority was a “crisis management response, rather than the articulation of any long-term constitutional principles”.2 This thesis will argue that Hillen and Wiswall were correct in this respect: King John’s untimely death did result in a crisis in government and that it is difficult to reconcile the solutions to the crisis with all that had gone before. Whilst the institutions such as the exchequer and the general eyre were reinstated,3 other strange features appeared, such as an immensely powerful papal legate and the office of rector given to William Marshal. Furthermore, the structure of 1 David A Carpenter, The Minority of Henry III (University of California Press, 1990), 1–2, 52. 2 Christian Hillen and Frank Wiswall, “The Minority of Henry III in the Context of Europe,” in The Royal Minorities of Medieval and Early Modern England, ed. Charles Beem (Palgrave Macmillan, 2008), 17. 3 For the reinstatement of the general eyre, see: Carpenter, The Minority of Henry III, 96–103. 6 government was constantly reinvented without any real process; it always remained somewhat vague and reliant on the political tenability of its officers, which is best illustrated by Peter des Roches and Hubert de Burgh. This was not unique to Henry’s minority as all of the English minorities after Henry also saw ‘ad hoc innovations’.4 Before proceeding, it is important to consider whether it is sensible to look at the thirteenth century through the lens of constitutional history, which has fallen out of favour with many medieval historians.5 This is because of the field’s association with the ‘Whig’ historians, such as Stubbs and Macaulay,6 who, in their writings, largely failed “to meet the past on its own terms and value it for its own sake.”7 For some historians, ascribing a constitution to the medieval period is a case in point: medieval England had no constitution and, therefore, any investigation into the constitutional history of the period is meaningless.8 This view, however, conflates ‘constitution’ with ‘modern constitution’, which is the same mistake made by the Whig historians. The difference is that whereas the Whig historians found a constitution and
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