Sir John Fortescue and His Theory of Dominion1

S. B. Chrimes

doi:10.2307/3678523

Sir John Fortescue and His Theory of Dominion1

Published online by Cambridge University Press: 17 June 2009

S. B. Chrimes

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If an attempt were made to define the tendency of political thought in England during the fifteenth century, it would be destined to failure unless it gave expression to opposing views of the character of the time. Here, as elsewhere, the historian's most difficult task is to form not merely generalisations that will sum up part of the facts, but generalisations that will take account of all the facts, however irreconcilable they may seem. The task of establishing general statements about the fifteenth century is especially troublesome, for the character of no century in English history is more open to conflicting interpretation. The reason for this conflict is not the so-called transitional aspect of the period, for every century is transitional, and every historical generalisation must express a transition of some sort. The source of the conflict goes much deeper than that, and is to be found rather in the sheer contradictoriness of our evidence.

Type: Research Article
Information: Transactions of the Royal Historical Society , Volume 17 , December 1934 , pp. 117 - 147

DOI: https://doi.org/10.2307/3678523 [Opens in a new window]
Copyright: Copyright © Royal Historical Society 1934

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^{page 118 note 1} Const. Hist., 5th ed., III, p. 638.

^{page 119 note 1} Bishop Beaufort of Lincoln, the chancellor in the parliament of 1404, compared any realm to the body of a man, of which the left part resembled the Holy Church, the right part the Temporality, and the other members the Commonalty (Rot. Parl., III, p. 522). Thomas Chaundler, warden of New College and chancellor of Oxford, quoted Plutarch's comparison of the state to an organism, and applied the analogy to England, in a letter to Bekyngton, dated 6 January, 1452 (Official Correspondence of T. Bekyngton, Rolls S., I, pp. 267–8). Bishop Russell frequently used the phrase “public body” in the drafts of his parliamentary sermon of 1483. He also elaborated an anthropomorphic analogy (Grants of Edward V, Camden Society, 1854, p. xlvi). Cf. his passage on the “mistik or politike body of the congregacion of the peuple” (Ibid., p. li). Cf. “corpus politicum” in Fortescue, De Laud., ch. xiii. The elaboration of anthropomorphic analogies was common on the Continent at this period (see Gierke, Political Theories of the Middle Age) (ed. and trans. F. W. Maitland).

^{page 119 note 2} Official Correspondence of T. Bekyngton, Rolls S., I, p. 78; Ibid., 267–8 (Chaundler's letter cited above, n. I); Gesta Henrici Quinti, 73, 107; Vita Henrici Quinti, ed. Hearne, 5.

^{page 119 note 3} Scrope's Articles of 1406 as in Inner Temple MSS. Petyt 583. 17, fo. 237a; Rot. Parl., V, pp. 246, 280, 290; VI, p. 168; cf. Russell's sermons, loc. cit., passim.

^{page 119 note 4} For discourses on duties of kings and subjects in parliamentary sermons, see Rot. Parl., III, p. 662; IV, pp. 261, 295, 316. Cf. Official Correspondence of T. Bekyngton, Rolls S., I, pp. 290–1 (letter from the bishop of Bayeux to Humphrey of Gloucester).

^{page 119 note 5} See references cited above, ns. 2 and 3, and Gascoigne, Loci e Libro Veritatum, 230–1.

^{page 119 note 6} Jacob, E. F., in his article, “Changing Views of the Renaissance” (History, October, 1931. XVI, p. 209).Google Scholar

^{page 120 note 1} See Scrope's Articles in Gascoigne, loc. cit., and in Inner Temple MSS. Petyt, loc. cit. For the important articles of Kent in 1450, see Magdalen College, Oxford, MSS. (Hist. MSS. Comm., 8th Report, 266–7) and p. 147, n. 1 below. Kingsford, in Eng. Hist. Literature, 359–60, omits the valuable articles enunciating theory.

^{page 120 note 2} See, for example, Fortescue's tracts on the succession question, and Somnium Vigilantis (E.H.R., 1911, p. 512), also attributed to him, and called by Kingsford “perhaps the earliest political pamphlet in English prose.” Cf. p. 127, n. 2 below

^{page 120 note 3} About three-quarters of the parliamentary meetings between 1399 and 1497 occurred at Westminster. See Interim Report on House of Commons Personnel and Politics (1932).

^{page 121 note 1} Skeel, C. A. J., “The Influence of the Writings of Sir John Fortescue,” Transactions, 1916, 3rd Series, X, pp. 77–114.Google Scholar

^{page 122 note 1} On this topic, and for the suggestion that the Year Books were closely connected with the body of Serjeants, see Plucknett, T. F. T., “The Place of the Legal Profession in the History of English Law,” L.Q.R., July, 1932, p. 328Google Scholaret seq.

^{page 122 note 2} Holdsworth,Hist. Eng. Law, II, p. 487.

^{page 123 note 1} Scofield, C., “Sir John Fortescue in February, 1461,” E.H.R., 1912, pp. 321–3.Google Scholar Whether he joined the Queen just before or just after the battle of Towton is uncertain.

^{page 124 note 1} The Complete Works are limited to 120 copies, and are printed in one large volume.

^{page 126 note 1} Cf. especially the Latin original with Grigor's translation of chapters xiii, xviii, and xxxvii. It is, however, not so much verbal errors that make Grigor's translation objectionable, as the general impression it gives the reader. We are forced by it to read Fortescue through early eighteenth century spectacles.

^{page 126 note 2} Plummer states (Governance, 86) that the title “Governance of England” is to be found in Yelverton MS. 35. But this statement appears to be erroneous. The title quoted from that manuscript by Bernard's Catalogue is “Questio quid differt inter dominium regale et dominium politicum et regale.” The only manuscript that has the title “Sir John Fortescue upon the Governance of England” is B.M. Harleian 542, and this, as Plummer mentions, is in the handwriting of Stowe, who presumably invented the title.

^{page 127 note 1} Ch. i, “The Deference bi twene Dominion Regale and Dominion Politicum et Regale.” Ch. ii, “Whi Oon King Regneth Regaliter and Another Politice et Regaliter.” Ch. iii, “Here Bien Shewed the Fruytes of Jus Regale and the Fruytes of Jus Politicum et Regale.”

^{page 127 note 2} Gilson, J. P. suggests (E.H.R., 1911, p. 512)Google Scholar that this tract, which he there edited as “A Defence of the Proscription of the Yorkists in 1459,” was written by Fortescue, on the grounds that it occurs in a manuscript volume containing other works undoubtedly by him, and that it was probably composed by a Lancastrian lawyer. Kingsford (Eng. Hist. Lit., 167–8) thought this ascription plausible. But there is little to show that the tract was the work of a lawyer, and its English style, excessively latinised as it is, seems to differ notably from that of Fortescue's known English works. It may be his work, but the differences in vocabulary and style between it and Fortescue's known writings seem to be wellnigh fatal to the supposition.

^{page 128 note 1} All references hereinafter to Fortescue's works are to Lord Clermont's edition, except those to The Governance, for which Plummer's edition is cited. The De Natura Legis Naturae is referred to by the letters N.L.N.

^{page 128 note 2} See the standard histories of mediæval political theory, especially McIlwain's, C.The Growth of Political Thought in the West, 1932.Google Scholar

^{page 129 note 1} McIlwain, op. cit., 356–7; and Richard Armachani, De Pauperie Salvatoris, Lib. I, ch. ii, in Wycliffe, Johannis, De Dominio Divino, ed. Poole, R. L., 1890, pp. 279–80.Google Scholar

^{page 130 note 1} What seems to be the nearest approach to a definition of dominion in Fortescue's writings is to be found in N.L.N., I, ch. xxxiv.

^{page 130 note 2} For the term “regimen,” see regimen politicuml (N.L.N., I, chs. xvi, xxvi, and De Laud., ch. xxxvi); regimen plurium (Ibid., ch. xxiii); regimen regale et politicum (Ibid., ch. xxxvi, and Govern., chs. i, ii); regimen tantum regale (De Laud., ch. xiv, andGovern., chs. i, ii). For the term “principatus,” see principatu nedum regali sed et politico (De Laud., ch. ix); principatu politico et regali (N.L.N., I, pp. 63, 188); principatu tantum regali (N.L.N., Ibid.). For the term “regnum,” see regnum politicum (meaning dominium regale et politicum—see p. 140 below) (De Laud., ch. xiii); regnum crevit politicum et regale (Ibid.).

^{page 130 note 3} Cf. especially the opening lines of chs. i and ii of The Governance.

^{page 131 note 1} N.L.N., I, ch. xvi.

^{page 131 note 2} Ibid., ch. xxvi.

^{page 131 note 3} Ibid., ch. xvi; De Laud., ch. xii; Govern., ch. ii.

^{page 131 note 4} Govern., ch. iii.

^{page 131 note 5} Ibid., ch. ii.

^{page 131 note 6} N.L.N., I, ch. xvi.

^{page 131 note 7} Ibid., II, ch. iv.

^{page 131 note 8} Ibid., I, ch. xvi.

^{page 131 note 9} De Laud., ch. xxxvii.

^{page 132 note 1} N.L.N., I, ch. xvi.

^{page 132 note 2} Ibid.

^{page 132 note 3} De Laud., ch. xiii.

^{page 132 note 4} N.L.N., I, ch. xxii.

^{page 132 note 5} Cf. Peter von Andlau's discussion An conveniat imperiumet quodlibet regnum magis regaliter quam politice gubernari (Libellus de Cesarea Monarchia, Lib. III, tit. 8)—whether, that is to say, it is better to be ruled by one or by many. The Hebrews before Saul, he says, were ruled not regaliter, but politice (Lib. II). He decides in favour of monarchy. Cf. Hürbin, J., Peter von Andlau (Strasbourg, 1897).Google Scholar

^{page 132 note 6} N.L.N., I, ch. xxiii.

^{page 133 note 1} N.L.N., ch. xxiv.

^{page 133 note 2} Ibid., ch. xxv.

^{page 133 note 3} Ibid., ch. xxii.

^{page 133 note 4} Ibid., ch. xxvi.

^{page 133 note 5} Ibid.

^{page 133 note 6} Ibid. The source of the argument is Boethius's De Consolatione Philosophiœ, Lib. IV.

^{page 133 note 7} De Laud., chs. x and xi. “Princeps: ‘Unde hoc, Cancellarie, quod rex unus plebem suam regaliter tantum regere valeat, et regi alteri potestas hujusmodi denegatur ? Equalis fastigii cum sint reges ambo, cur in potestate sint ipsi dispares nequeo non admirari.’ Cancellarius: ‘Non minoris esse potestatis regem politice imperantem, quam qui ut vult regaliter regit populum suum, in supradicto Opusculo sufficienter est ostensum (N.L.N., I, ch. xxvi); diverse tamen autoritatis eos esse in subditos suos ibidem aut jam nullatenus denegavi, cujus diversitatis causam, ut potero, tibi pandam.’”

^{page 134 note 1} De Laud., ch. xiii; cf. Govern., ch. ii.

^{page 134 note 2} N.L.N., I, pp. 63, 187. Fortescue and the Law of Nature is the subject of a paper by Professor E. F. Jacob, forthcoming in Bulletin, John Ryland's Library. The present writer hopes to treat elsewhere Fortescue's jurisprudence.

^{page 134 note 3} N.L.N., I, ch. v.

^{page 134 note 4} Ibid., chs. vii, ix, xxix.

^{page 134 note 5} Ibid., ch. xxix.

^{page 134 note 6} Govern., ch. ii.

^{page 134 note 7} N.L.N., I, ch. xviii.

^{page 134 note 8} De Laud., ch. xii.

^{page 135 note 1} Govern., ch. ii; De Laud., ch. xiii.

^{page 135 note 2} Ibid.

^{page 135 note 3} N.L.N., ch. xxvii.

^{page 136 note 1} Richard Fitzralph of Armagh, op. cit., Lib. II, ch. iv. After giving a description of man's original lordship in the world, Richard is asked why he used therein the word “authority” rather than the word “power.” Richard replies: “Auctoritas seu ius soli racionali convenit creature; potestas sive facultas irracionabilibus competit ex sua institucione primaria; quoniam iuxta supra posita verba de genese, I, v. 29, 30.”

^{page 136 note 2} Plummer, op. cit., 171 et seq.; Mcllwain, op. cit., 358 et seq.

^{page 137 note 1} Works, ed. Clermont, 360; Plummer, loc. cit.

^{page 137 note 2} McIlwain,loc. cit.

^{page 139 note 1} N.L.N., I, ch. xvi; Govern., ch. i. For the various passages in the De Regimine Principum of St. Thomas and Ptolemy, and of Egidius, see the references and citations given by Plummer, loc. cit. Fortescue's citation of the Compendium Morale Rogeri de Waltham, which he says (Govern., ch. i) “more openly treats” of dominion political and regal than St. Thomas's work, shows that he was content to regard even nebulous allusions as good authority, for Roger's treatment of monarchy is of a merely moral character (see Plummer, op. cit., 175).

^{page 140 note 1} I entirely agree with A. P. D'Entrèves when he remarks on the absence of any visible influence on Fortescue's writings of his legal predecessors, Glanville and Bracton (San Tommaso d'Aquino e la Costituzione Inglese nell’ Opera di Sir John Fortescue, 264, in Atti della Reale Accademia delle Scienze di Torino, LXII, 1927). I am indebted to Mr. H. O. Evennett, Fellow of Trinity College, Cambridge, for calling my attention to and loaning me this suggestive essay. Sig. D'Entrèves does not, I think, add substantially to the conclusions arrived at by Plummer in regard to the relation of Fortescue to St. Thomas's texts.

^{page 141 note 1} Lord Carlingford, Works, 361. Lord Carlingford seems to suggest that Hallam also thought of Fortescue in this light, but I do not find the suggestion substantiated.

^{page 141 note 2} It is undoubtedly essential to maintain a clear distinction between the terms “limited monarchy” and “constitutional monarchy.” Plummer, and indeed McIlwain also, use these terms as though they were synonymous, and this confusion is most misleading. A limited monarch is one whose power is absolute except in certain spheres delimited by law and custom. A constitutional monarch is limited but not absolute, for his power is controlled by some other co-existent power whose authority he cannot lawfully override. An absolute monarch is not necessarily also despotic, for, though he may be restrained only by custom or by moral and material forces, yet his power need not be arbitrary, as a despot's is.

^{page 143 note 1} Jovian Hicks, in his Passive Obedience Defended (1683), noted this point.

^{page 143 note 2} Waterhous, in his Commentaries on the De Laudibus (1663), observed (p. 200) that the phrase “potestatem a populo effluxam ipse habet” is not to be understood as applying to the government of England, “which is an Imperial Crown, and is not alloyed by the politique admissions into it, but that that, as to the integrals and essentials of regality, retains its independency.” Such phrases he held to relate to the “first ages of the world.”

^{page 144 note 1} Plummer suggests (op. cit., 84) that the account of the origin of the two forms of government was derived from Vincent of Beauvais, De Morali Principis Institutione. But he hardly brings any evidence to the support of this suggestion (Ibid., notes to ch. ii). He merely quotes a passage from that work bearing on Nimrod and Ninus, which is, of course, quite irrelevant to the theory of origins; and, in any case, Fortescue cites St. Augustine for his authority on those two monarchs. The present writer has not examined the De Morali, a copy of which, known to have belonged to Fortescue, is now in the Bodleian (Rawl., c. 398).

^{page 144 note 2} N.L.N., I, ch. xxvii.

^{page 145 note 1} Govern., chs. xv, xvi.

^{page 145 note 2} De Laud., ch. xiii; Govern., ch. ii. Fortescue seems to have had a certain amount of authority for his version of Brutus's elevation, at any rate in so far as the legend tells of his being chosen as leader of the Trojans. Thus in the Nova Chronica of Rede, a copy of which is known to have been in Fortescue's possession, it is said (p. 185) that Brutus was elected leader before the migration from Greece. Geoffrey of Monmouth's own version is to the effect that the Trojans besought Brutus to be their “dux,” and to free them from their servitude to the Greeks. He used the same words as Fortescue did to describe this elevation, i.e.erectum est (Historia Regum Brittanie, ed. A., Griscom, 1929, p. 225).Google Scholar

^{page 145 note 3} The texts for these statements are to be found in N.L.N., I, ch. xvi; De Laud., chs. ix, xviii, xxxvi.

^{page 146 note 1} Pollard, A. F., The Evolution of Parliament (1926), p. 133.Google Scholar

^{page 146 note 2} Govern., ch. xix. These proposals are in no sense Utopian. As the German translator of The Governance says: “Was Fortescue in der ‘Regierung Englands’ schreibt, ist der Niederschlag der Erfahrungen, die er unter den Lancasters gemacht” (Über die Regierung Englands, ubers. u. hsgb. v. Dr. Parow, Walter, 1897, p. 9).Google Scholar

^{page 147 note 1} Articles of Kent, in Magdalen College, Oxford, MSS., printed in Hist. MSS. Comm., 8th Report, App. I, pp. 266–7: “ (ii) Item, they say that oure Sovereigne lorde is above his lawe and that the lawe is made to his plesure, and that he may breke hit as ofte as hym lyst withouten any discucsione; the contraire is trew and elles he schuld not have bene swerane in his Coronacione to kepe hit, the weche we conceyve far the higheste poynt of tresone that any subject may do azenst his prynse for to make hym reygne in perjurie. (iii) Item, they seye the Kynge schuld lyve upon his comyns, and that her bodyes and goodes em his; the contraire is trew, ffor than nedid hym nevir to set parlements and to aske good of hem.”

^{page 147 note 2} See letter to Alexander V, printed by E. F. Jacob in Bulletin, John Ryland's Library, XV, p. 379.

^{page 147 note 3} Rot. Parl., IV, p. 326.

^{page 147 note 4} Mémoires, I, p. 266.

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