On 28 June 1264 an ordinance was sealed by Parliament following the victory of the Montfortian party at Lewes six weeks earlier. It ordained that the king shall dispose of all the business of the realm, whether dispensing patronage or naming Crown officials, with the advice and consent of a council of nine. These nine would be chosen by three electors confirmed by the king, all elaborated by a system of checks and balances. Officially Henry III gave his “consent, will and precept” to this form of government, which for all intents and purposes changed England into a constitutional monarchy.
It was called an ordinance and not a constitution because it was meant to be a temporary measure, a “form of peace” until the actual treaty drawn up after Lewes was implemented. That battle had been the culmination of six years of strife over the Provisions of Oxford, the reforms enacted to rein in the king’s personal rule. By the end of 1263 Henry had recovered most of his power, forcing his opponents, led by his brother-in-law Simon de Montfort, to agree to arbitration by the king’s other brother-in-law and fellow monarch, Louis IX of France. With supreme imprudence, Louis completely nullified the Provisions of Oxford, resulting in civil war and the two sides facing off at Lewes.
Henry was winning the war and might have won at Lewes had his son, the future Edward I, not led his division off the battlefield on a murderous joyride. To coax Henry and his son into surrendering, Montfort agreed that the Provisions could be revisited and adjusted under arbitration with French participation. A letter was sent in Henry’s name to Louis shortly after the battle to initiate this new discussion so that a final form of government might be instituted for the realm. The Ordinance, which was essentially the Provisions in stricter form, was to suffice in the meantime.
Louis never did answer, nor would he, for his pride would be severely affected if he admitted the foolishness of his previous decision. By August 1264, the Montfortians had had enough and sent Louis their own final plan, called the Peace of Canterbury. It was the Ordinance all over again, with one caveat: that this form of government was to survive the king into the next reign. Edward, whether he liked it or not, would also have to govern under constitutional controls.
What is truly amazing about the Ordinance is not that it had the approval of the king. Henry had also approved the Provisions, but had got the pope to absolve him of his oath to observe them. Rather, it confirmed that England would henceforth be a parliamentary state. That process had begun earlier with the provision that called for the king to summon Parliament three times a year at regular intervals, thereby infringing on royal prerogative to summon it at will. When Henry set out to undermine the reforms, it was precisely this provision that he took aim at first. It was that conflict in the winter/spring of 1260 that split the realm into two camps, those for Henry and those for Simon.
Previously, the main function of Parliament had been to discuss petitions and taxation. With the onset of the reform movement, it also began to legislate, not just rules for the king, but for the barons themselves, all bearing in mind that England was a “community of the realm”, meaning all the people and not just the elites. For the Parliament of June 1264, the counties were invited to send four elected representatives to approve, alongside the magnates and clergy, this new constitution. From that moment forward, Parliament would be a national assembly with the power to decide matters of state, including deposing the king if necessary.
Why Simon de Montfort is better remembered for his next Parliament, where the towns were first invited to send representatives, and not this groundbreaking assembly, has to do with the man himself. He has been accused both in his day and ours of never intending to fulfill the terms of Henry’s surrender at Lewes. He merely agreed to them to get the king to come out alive, and once he had him, was content to rule the realm in his name.
For sure, he was one of the three electors and certainly dominated the government, but he had a wide range of support from the clergy, nobility, knights, freeholders and peasants. His willingness, moreover, to compromise on the Provisions offered Henry a face-saving measure. Throughout his reign, the king had always despaired for his dignity, now Simon was offering as much as he could give him in defeat. Historians have often overlooked this fact, preferring to see Simon as uncompromising and Henry as weak, despite knowing that it was Edward who lost the battle, and that these two men, in-laws who had once enjoyed a deep friendship, personally meant the other well in spite of their troubles.
The demand that the French arbitrate also suspiciously looks like Montfort knowing that nothing would come of the surrender treaty. He knew Louis well enough to know he would never put peace before pride. Indeed, when the French king received the Peace of Canterbury, he famously reported he would rather toil in the fields than rule as a king under such conditions. And yet Montfort needed outside legitimacy for his regime and his standing with leading French nobles and clergymen offered the only chance of getting Louis to act.
It was all over in a little more than a year. Edward escaped from custody, raised an army, and butchered Montfort’s men at Evesham in August 1265. The Ordinance and all acts passed under it were repealed, the estates of the Montfortians were seized, and England was gripped by disorder over the next two years. But there was no turning back. When Henry and Edward tried to secure a crusade tax, it would take at least eight parliaments before they finally got approval. And of course, the next civil war between king and parliament saw the monarchy abolished, if temporarily.
So why then isn’t the Ordinance of 1264, and by its origins the Provisions of Oxford, remembered with the same veneration as Magna Carta? For the same reason the Declaration gets all the glory in America and not the Constitution. The enshrinement of rights is always the first step towards installing the machinery of government, not to mention being an easier sell to the people. Magna Carta had been on the books throughout Henry’s reign and he confirmed it several times even while violating its principles. Louis understood how deeply entrenched this charter of liberties was in the political landscape of England, and so made sure to announce that his nullification of the Provisions had nothing to do with Magna Carta. You can have your rights, he was telling the English people, but not your government.