Sir John Fortescue: Securing Liberty Through Law

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.

The Range of Fortescue’s Achievement

The most interesting and important theoretical work by Fortescue, however, is neither Praise nor its well-known sequel, The Governance of England, the first treatise on its subject written in the English language. Rather it is the largely neglected earlier and most extensive of his works, The Nature of the Law of Nature.

This book provides the philosophical and religious foundations of the later political and constitutional writings without which they are not fully intelligible. It is of great value in its own right for first setting forth Fortescue’s theories of law, justice, government, and human nature upon which all else depends.

The center of attention rightly remains on the political and consti­tutional aspects of the works under consideration, of course, for the obvious reasons that Fortescue is a great judge and common law lawyer and that this is his own emphasis. His most important works were all written after his sixtieth year and all written on the fly, as it were: in Scotland as an attainted refugee after the Battle of Towton (March 1461), or during the seven years of exile in France, or under duress.

He writes as a distinguished jurist with forty years of experience, twenty of these as Chief Justice, as Chancellor (the persona adopted in Praise), as a statesman with extensive parliamentary experience, and as a man of affairs who for many years participated in the highest political deliberations and diplomatic dealings of the realm under Henry VI and afterward, for an undetermined period of time, as a member of the council of Edward IV, first of the York monarchs, a transition to the Tudor period that dates from 1485.

Stanley Chrimes, the leading authority on Fortescue, in commenting on the character of the author of Praise, sums up as follows:

“We cannot but stand amazed at the robust vitality of this old man, more than seventy years of age, who composed this work after a life of such enormous exertion and such tribulation. The toughness of the common law itself is in him; there is no sign of failing faculties in this nor in any of his works. This work above all the rest has in it a freshness, an alertness of mind, a sprightliness, a dry humor, a humanity, an enthusiasm, and an almost boyish zest that are astounding in the circumstances . . . .”

“We cannot avoid the feeling that we are reading the work of a great man in his own day and generation, of a great English­man. For Fortescue is very English . . . . He believes at once in hereditary monarchy, aristocratic society, and in the will of the people; he can reconcile in his mind something like autocracy with something like democracy. He is entirely convinced that English laws and institutions are the best in the world, and always have been. His pride of profession is immense, but he never entirely loses sight of the truth that his profession is only a means to a great and elusive end—Justice.”⁵

A Public Life That Knew Danger and Bloodshed

All of Fortescue’s writings are reflective of his career as a public man and, thus, cast in the mode of prudential concern and discourse. Moreover, he remained a partisan (“a partial man”) of the Lancas­trian cause in mind, body, and sword until its definitive end at the Battle of Tewkesbury (May 1471) and Henry’s probable murder in the Tower of London.

Fortescue directly engaged in battle on more than one occasion as the so-called War of the Roses unfolded to the final defeat at Tewkesbury. There the young Lancastrian, Edward Prince of Wales (the “Prince” of Praise), was killed, and his mother, Queen Margaret, and Fortescue were captured by the victorious Yorkists. Fortescue’s life was spared, and he submitted tothe victorious Edward IV; in October 1471, he wrote the required repudiation of earlier views, entitled Declaration Upon Certain Writings Sent out of Scotland.

He presented his new lord and master with a copy of The Governance when he assumed duties on Edward IV’s council, and the substantive policy and institutional reforms proposed therein appear to have influenced in some degree the conduct of affairs under Edward and later on under the first Tudor monarch, King Henry VII. The attainder finally was lifted in February 1475, and therewith Fortescue’s property and standing were restored. He is believed to have died about two years later, although a family tradition has him living past age ninety. He is buried in Ebrington Church, Gloucestershire.

Rather than attempt a summary of the arguments of his several works, it will be more to the point to reflect very briefly on the philosophical substance, range, and tenor of Fortescue’s writings, considered as an important link from medieval to modern English political and constitutional thought.⁶ For if we wish to understand the grounds of his devotion to liberty within the frame of a monarchy resting upon the consent of the realm as regularly registered through its representative institutions, and most particularly Parliament, the underpinnings of this devotion need to be at least roughly ascer­tained and placed in the context of his life.

Politics Must be Subordinate to Spirit

The heart of the matter becomes apparent in Nature and its search­ing account of human nature and man’s participation in the compre­hensive reality of time and eternity disclosed through philosophy and revelation. The participatory texture of human experience is the source of Fortescue’s reflections. He is utterly clear on the point that man seeks the good and that the good he seeks is not exhausted by nature and the things of the world, with happiness being the highest end attainable by action (Aristotle). Rather, man seeks as his ultimate end the inexhaustible Good of the transcendent summum Bonum, supernatural Beatitude.⁷

While the political vocation thereby finds a place of great importance in the hierarchy of being, it must ever remain distinctly secondary to man’s spiritual quest. Fortescue’s horizon of thought, in other words, is thoroughly Christian, classical, biblical, scholastic, and medieval Catholic, with elements of Renais­sance humanism tending to modernize the whole.

The theoretical explorations are often (but not always) for their own sakes as a search for truth and justice. But sometimes they are in the mode of the eristic–a mere lawyer’s argument, as in the forensic exercise that is ostensibly the main concern of the second part of Nature, whose actual title is Concerning the Right of Succession in Supreme Kingdoms. This is even truer of the Declaration, which refutes Nature II’s central contention with an almost comic sleight-of-hand lawyer’s trick. It must have amused Fortescue himself, and presumably King Edward did not notice.

The theoretical efforts at their most brilliant are done with the humility of a man who knows his mortality and frailty and who, therefore, bows before God and king to defer his to their judgments and rightful authority. There is a constant mindfulness of human lim­its, a sort of Burkean sense that the individual is ignorant, the species wise. And this regard for views other than his own, conditioned by a recognition of the need to preserve the community of which he was part and of which he was also a steward, structures the political the­ory of Fortescue.

Stability Through Wide Consultation

Sir John Fortescue constantly preaches, as we might say, that two heads are better than one: government is political and royal when it is best because many men reflecting on problems of rule are more likely to judge truly and justly than is any one man alone. Even the king who rules in a royal dominion should seek aid and advice from wise counselors.

There is an Aristotelian concern to maintain stable as well as just and secure rule as clearly better than the alternative of chaos and civil strife with which Fortescue was painfully familiar. There are reminders that men are naturally political and social beings living together in communities united by agreement on fundamental matters of truth and justice.⁸ Agreement must constantly be renewed and nurtured through wide consultation.

This core of concord is the “truth of justice” that is phronesis (moral wisdom), and is itself Reason, the very Law of Nature that Fortescue persuasively unveils and ultimately characterizes as “the truth of Justice which is capable of being by right reason revealed.”⁹ Such a mixed constitution as the one Fortescue describes as the dominium politicum et regale and sees as actually existing historically in England is, he insists, the very political order ultimately favored by Aristotle; it is also the mixed constitution that is Aquinas’s choice as the best practicable regime, if not the absolutely best.¹⁰

Fortescue’s restraint and counsel rest on more than a concern with legalities and protocol. They arise from a desire to live and rule in accordance with truth and in avoidance of error and sin. Consultation with the community through its leading members has a spiritual as well as an analytical purpose. Not only is one more likely to hit on the right and best policy but one is also prevented from self-serving decisions that lead down the primrose path of error and vice, to sin, tyranny, and finally servitude in self-indulgence and enslavement to base passion.

Liberty as Virtue and the Christian Tradition

True liberty, Fortescue constantly avers, is not the obvious thing found by willfully doing whatever you think you most want to do; rather liberty is only found in doing what you ought to do to live and, if king, to rule justly. This is a further reason “political and royal rule” is superior to merely “royal rule” and, at the same time (as the chancellor tutors the prince in Praise), despite first impressions to the contrary, the king’s power actually is greater in the former kind of government than it is in the latter. This follows, the argument goes, because error and sin are acts not of power but of impotence; they are defections from truth, justice, and being in favor of nonbeing and the perfect nothingness of evil–as Augustine taught.¹¹

A devotee of “consultation,” Fortescue writes in consultation not merely with his own thoughts and direct experience (substantial as it is) but with those of all of the wise men of the ages so far as he can muster an acquaintance with them. Fortescue’s pages seethe with references and allusions drawn far and wide from his reading and meditations. (Scholars assure us that he was using crib books of pop­ular maxims and pithy thoughts gleaned from a huge literature and really could not have read all the writers he cites. Perhaps not.)

But what is impressive about Fortescue and his sources is that he weaves his argument together with his citations to marshal a convincing if not quite seamless fabric of analysis. He cites not simply for the sake of authority but for the sake of illuminating his understanding by appeal to the deepest sources of wisdom. Especially is this true in the first part of Nature, which exemplifies the questing spirit of another great Englishman from centuries before, Anselm of Canterbury (d. 1109), who symbolized the path he followed as “faith in search of understanding (fides quaerens intellectum).”¹²

Since, to a mind such as Fortescue’s, Spirit and Justice must have human incarnation and institutional representation in order to achieve effectual ordering authority in history under conditions imposed by life in the world, he typically bows in overt deference to church and the law of the land, to pope and king. Life and well-being also must be protected against the harsh practices and penalties of the age, as the Declaration attests, so humility and prudence both are reflected in Fortescue’s attitude. But there is no doubting the independent judgment of Fortescue as a great spiritualist and intellect and as a noble character of profound integrity.

Fortescue has broadly absorbed Christian religious, philosophical, and political culture in its English version, and Thomas Aquinas and his school are central to late medieval thought and plainly prominent in Fortescue. But there is more to it than that. Fortescue’s independent judgment revalidates the insights of the thinkers he leans upon and makes them his own through a process of experiential confirmation and intellectual rearticulation.

The analyses of man, society, politics, and the whole of reality given in the grandiose styles of Aristotle or of Augustine or of Thomas Aquinas, for instance, are not true because they said so; rather they said so because it is true–at least as far as faith and critical reason can see from their various perspectives. Fortescue draws upon all of these, and he reflects a concern to find the truth about the human condition within the limits of his inquiry and to do so with the help of the great truth finders of history.

A Mundane Mystical Body for England

Building on that foundation, then, the theory of human nature is basic to the theory of the community, and the historicity of the community moves progressively from merely royal or even despotic dominion toward the perfection of itself expressed in the intention of the people to assume the form of political and royal rule. The community is characterized as a corpus mysticum united by a common intention and governed by the king as head. The organic analogy is reminiscent of John of Salisbury, but it is drawn more directly from the Pauline conception of the Church as the body of Christ through faith with the Savior as head.¹³

Each of the individual persons as members constituting the mundane mystical body delineated by Fortescue contributes to and shares equally in the dignity and well-being of the common good of the political community.¹⁴ Moreover, man as the creature of God bears his image and through grace enjoys fellowship with him. By faith he participates even in time in the eter­nal communion to be consummated personally and eschatologically in the world to come.

Fortescue elaborately adopts the Trinitarian anthropology of Augustine that explains imago Dei in man in terms of memory, intellect, and will as these correlate with Father, Son, and Holy Spirit. The image of God’s eternal unity is thereby exhibited in his creature man. Memory (memoria) is the font and matrix of the soul out of which all primary intuitions and all of our latent acquired ideas arise to generate the active intellect.¹⁵

The law of nature is thus impressed in the minds of all men as individuals and inclines them, even if imperfectly in their fallen state, to the good and most of all to the highest Good or summum Bonum. Human life so conceived is lived in tension toward the divine Ground of being at every step in the pilgrimage of man through time in partnership with God.¹⁶

The general principles of the law of nature are not those of man in his bestial aspect (Aquinas’s fomes peccati, con­cupiscentia); rather they are those that incline human beings to higher good in its several aspects: to preserving life itself; to propagating themselves in companionship with their spouses and protecting and educating their families and communities; and to knowing the truth about God and his eternal salvation, the Good beyond all earthly de­sire.¹⁷

Such natural law, intrinsic to mankind and to every individual person among them as imago Dei, is itself a participation in eternal and divine law made possible through the crowning capacities of mind. Moved by his vision, Fortescue exclaims: “Oh, how great a thing is this participation!” Calling it the “higher part of reason,” Fortescue powerfully writes of it experientially as “cleaving to God, and stretching itself out toward that which is eternal.”¹⁸ Variously identified as ratio, intellectus, synderesis, and conscience, this above all else is the specific essence of man and that in him whereby communion with the divine occurs.¹⁹

All positive or human laws have validity insofar as they are in accordance with natural law and are null and void otherwise, even if in accord with custom.²⁰ Evil does not become good through long practice and reiteration. The law insists that life, the community, and the political order are justified only to the degree they serve the good.²¹ Thus, the foundation of all law is the Golden Rule to do unto others as you would have them do unto you, for this sums up “the Law and the prophets.”²²

The purpose of all governance is the well-being through peace and justice of the community, and its members must be inculcated by habit, instruction, and true laws with the virtues of human and divine excellence as the attributes of living well. “The kingdom is not made for the king but the king for the kingdom.”²³ A king, just as a pope, is most truly the servant of the servants of God.²⁴

Whenever any king departs from his high calling of service and justice, to that degree government loses the quality of kingship and derails into the kind of perverse misrule of coercion identified with the tyranny of Nimrod.²⁵ Such a tendency is naturally present in some degree everywhere since men, driven by libido dominandi and superbia vitae (lust for power and pride of life), are goaded by selfish ambition and brute passion “to be first” and, consequently, must be bridled by instruction, habit, law, counsel, and such institutional restraint as may be available in the kingdom.²⁶

The restraint of parliament (Praise) and of an independent council to the king (Governance) is included in Fortescue’s own prescriptions as emerging from English politics, law, and tradition as these look toward a powerful, wealthy, and centralized monarchy that he hopes may remedy ills of the realm. Contentiousness, he writes, quoting Augustine, “is a great disease of the soul.”²

The Consent of the Governed as Fundamental

Last, it may be noticed that liberty stands at the heart of Fortescue’s account of man and government. Thus, “freedom was instilled into human nature by God.”²⁸ The list of liberties enjoyed by Englishmen sounds familiar in including jury trial, a required plurality of wit­nesses, security against billeting troops in private houses, payment for lodging them in public establishments, security of private prop­erty against arbitrary invasion or taking, no legal use of torture to extract confessions, no taxation or changing of the law except with parliamentary consent. The list smacks of Magna Carta, but that doc­ument is not mentioned.

The stress on Parliament’s role is the most important distinction. For the fundamental liberty is to be subject not to arbitrary government (such as the despotism exemplified by France, as Fortescue often says) but solely to rule of law grounded in the consent of the whole community as given by representatives through established procedures.²⁹ This vital distinction has remained the mark of free government from Fortescue’s day until our own.

Notes

8. Nature I.34. Cf. Aristotle, Politics, I.1.8-11,1252b28-1253al8.

9. Nature I.31.

10. Nature I.16; Praise c. 14.

11. Praise c. 37; Nature I.26; Augustine, Confessions 7.12.18-15.21. Cf. Etienne Gilson, The Christian Philosophy of Saint Augustine, trans. L. E. M. Lynch (New York: Vintage Books, 1960), chap. 3.

12. Proemium (1 3) of the Proslogion, text and translation in Gregory Schufreider, Confessions of a Rational Mystic: Anselm’s Early Writings (West Lafayette, Ind.: Purdue University Press, 1994), 312.

13. 1 Cor. 12, a favorite of Fortescue’s; Eph. 4:4-13; Col. 1:18.

14. Praise c. 13; Governance c. 2.

15. Nature I..37, 11.17, c. 63. On the amplitude of memory (memoria) in Augustine see Gilson, Christian Philosophy of Saint Augustine, 299nll0 and texts cited therein, esp. Confessions bk. 10 and On the Trinity bks. 10 and 14. Fortescue frequently quotes Boethius (480?-524?), whose anthropology may be taken as a key ingredient in his own Neo-Platonic-Augustinian conception of human nature and personality; it is set forth in Boethius, Con­solation of Philosophy, ed. Irwin Edman (New York: Modern Library, 1943), esp. 108-20. It also should be noted that Fortescue was acquainted with and relied upon the translations and work of the pivotal fifteenth-century Florentine Renaissance scholar Leonardo Bruni (1377-1444), himself a hu­manistic Thomist, including the new Latin translations of Aristotle’s Ethics and Politics (commissioned by Humphrey, duke of Gloucester), translations of Plato’s dialogues, and, most directly, Bruni’s introduction to philosophy entitled An Isagogue of Moral Philosophy. See The Humanism of Leonardus Bruni: Selected Texts, ed. Gordon Griffiths et al. (Binghamton, N.Y.: Medieval and Renaissance Texts and Studies, Renaissance Society of America, 1987), esp. chaps. 4 and 6 by James Hankins. Bruni was not only a conduit of Greek and Latin classicism, including Platonism, into Italy and to some degree also into England but also “the best-selling author of the fifteenth century” (Humanism, 45). See the discussion of Fortescue’s sources for Praise in Chrimes, De Laudibus, Ixxxix-xcv.

16. Nature II.35.

17. Summarizing Thomas Aquinas (admittedly Fortescue’s master), Sum­ma theologiae I-II, quest. 94, art. 2; for further discussion of this conception of natural law, see Essay 7 herein.

18. Nature I.42, II.63.

19. The literature on Fortescue neglects these matters. The best study is Norman Doe, Fundamental Authority in Late Medieval English Law (Cam­bridge: Cambridge University Press, 1990); also Stephen A. Siegel, “The Aristotelian Basis of English Law, 1450-1800,” New York University Law Re­view 56 (April 1981): 18-59. Fortescue’s theories are resumed by Christopher St. Germain a half century later; cf. St. German’s Doctor and Student (First Dialogue 1523, Second 1530), ed. T. F. T. Plucknett and J. L. Barton, Selden Society vol. 91 (London: Selden Society, 1974), 13-15, 81-90.

20. Nature I.29, II.71.

21. Fortescue is of two minds on this important subject, and only a hint can be given here. Cf. Doe, Fundamental Authority, 78-80, 83,179: “The will of the community, in its creation of customary law, is subordinate to the authority of reason. And it is from the presence of this general natural law outlook that the basic tension in late medieval law arises. It is clearest in Fortescue, for, at the same time as saying ‘law is that which is consented to by king and people,’ and ‘bad rules are still laws,’ he also says ‘law is that which is authorized by divinely created natural law,’ and ‘bad rules, if they offend natural law, are not laws at all'” (83).

22. Matt. 7:12; Gratian, Decretum I.I; Nature I.10 and c. 12. Aquinas writes: “Wherefore Gratian, after saying that ‘the natural law is what is contained in the Law and the Gospel,’ adds at once, by way of example, ‘by which everyone is commanded to do to others as he would be done by'” (The Political Ideas of St. Thomas Aquinas: Representative Selections, ed. Dino Bigongiari [New York: Hafner Press, 1969], 50 [text of Aquinas, Summa theologiae I-II, quest. 94, art. 4, reply obj. 1]). For detailed discussion of this subject see Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983), 143-98; Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625 (Atlanta: Scholars Press, 1997), chap. 2. For “Reason” as the synonym of “natural law” in English jurisprudence see the citation of Saint Germain in Essay 7, Note 25, and the accompanying text.

23. Nature I.25; Praise c. 37; Governance c. 8.

24. That is, servus servorum Dei: Nature, II.4; Governance c. 8.

25. Nature I.7 and c. 9; Praise cc. 9 and 12. Cf. Gen. 10:8-9.

26. Nature I.l.

27. Nature I.57.

28. Praise c. 42. “Where the spirit of the Lord is, there is liberty” (2 Cor. 3:17); “Stand fast in the liberty wherewith Christ hath made us free, and be not entangled again with the yoke of bondage” (Gal. 5:1).

29. Praise cc. 32, 36.

This excerpt is from The Politics of Truth and Other Untimely Essays (University of Missouri Press, 1999)

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