Sir John Fortescue
Securing Liberty Through Law –Part 1
by Ellis Sandoz
Government both Political and Royal
The greatest English political thinker of the fifteenth century, Sir John Fortescue (ca. 1394-ca. 1477), served as a member of Parliament in eight Parliaments, as chief justice of King's Bench for nearly two decades, and as Lord Chancellor of England to Henry VI, the last of the Lancastrian kings.
He is chiefly known for the instructional dialogue he composed for the young heir apparent to the throne, Prince Edward, titled In Praise of the Laws of England.1
The fame attaching to that work arises mainly from its prominence in the dispute two centuries later over the nature of the English monarchy and constitution conducted between the first Stuart kings (James I and Charles I) and Sir Edward Coke, John Selden, and Parliament leading up to the Petition of Right (1628) and the subsequent civil war.
While quoted on both sides of the debate, Fortescue ultimately became a byword for the Old Whig cause of limited monarchy and parliamentary authority against the claims of royal prerogative and absolutism. He thus became a figure of pivotal importance for seventeenth-century English and eighteenth-century American conceptions of rule of law, liberty, and constitutionalism. Hence our own interest in this neglected figure.
In all of his major writings, Fortescue insists that England's government is, and always has been, not merely royal (dominium regale) but political and royal (dominium politicum et regale). By this he particularly means that laws may not to be enacted nor taxes levied by the king without the assent of Parliament and that the monarch should be obedient to his own laws.
A Later Guide for Hooker, Coke, and Adams
These are principles reiterated by such later authorities as Richard Hooker (d. 1600) as forming the groundwork of personal liberty and free government in England and intended in the maxim "Laws they are not therefore which public approbation hath not made so."2 Fortescue is the first writer who specifically asserts the power of Parliament to be a limit upon the authority of the king.3 That supreme seventeenth-century oracle of the common law, Sir Edward Coke, so admired Praise that he thought it "worthy to be written in Letters of Gold for the Weight and Worthiness thereof."4
In the history of liberty through rule of law, then, Fortescue stands in the line of celebrated English political, legal, and constitutional writers running from Henry de Bracton (d. ca. 1268) to Christopher St. Germain (d. 1540) to Richard Hooker through Sir Edward Coke (d. 1634) to Edmund Burke (d. 1797)—and so also to John Adams and the generation of American founders of the late eighteenth century who imbibed the writings of these authorities.