Thought

Two of Fortescue’s works have been important for the development of English jurisprudence and for political philosophy. De laudibus legum Angliae (1468-1471), presented the advantages of the English common law over the Roman law used on the continent, with particular attention to France. Especially, notable in De laudibus is Fortescue’s assertion of the presumption of innocence, ‘‘I should, indeed, prefer twenty guilty men to escape death through mercy, than one innocent to be condemned unjustly’’ (De laudibus 27, Lockwood 1997:41).

De dominio regale et politico (1471) articulates the distinction between royal dominion, the sovereignty of a king, and political dominion, in which king and people function together in legislation and governance in a ‘‘mystical body’’ of the realm. Fortescue’s conception of these two distinct species of dominion is based in scholastic Aristotelian political thought, particularly as articulated in the De regimineprincipum begun by Thomas Aquinas and completed by his student Ptolemy of Lucca. The Aristotelian concepts of justice and polity were ‘‘Englished’’ when Fortescue introduced the tradition of English common law and the concept of the crown as the corporate entity of the British realm. The idea of the crown as the corporate person expressing the sovereignty of the collective body of the realm, protected and nurtured by the living bodily king and people, had begun to develop in the thought of Henry of Bracton in the thirteenth century. It would continue to develop into the sixteenth century, and Fortescue’s use of it in describing the dominium politicale that made the English system distinct from continental kingship contributed significantly to the idea.

In Fortescue’s distinction between royal and political dominion, royal dominion is based on conquest, with the conqueror subjecting the vanquished to justice as he defines it, eliminating their possible participation in, and contribution to, its development and nourishment. The inevitable result of this is tyranny. According to Fortescue, the best example of purely royal dominion and the strict limits it puts on justice for the people is the French system of rule. While it may have begun as political dominion, the constant threats posed by war with England and the inability of French kings to marshal sufficient support from within to meet these threats caused it to degenerate into its present form, in which the king rules on his own behalf. The French people live in poverty, despite inhabiting a fertile land, and they have scant hope for justice under the Roman system of law, which depends upon the wisdom and jurisprudence of its royal executive.

The origins of political dominion, on the other hand, are found in a joint agreement of people to the rule of a king that is both royal and political. In this combined model, the king exercises royal rule in the execution of his responsibilities to protect the realm from external threat and internal divisions, but he lacks the power to alter the established system of justice or to change the laws of the realm. This power rests in political dominion, which is held jointly by the king and the people. In describing political dominion, Fortescue harkens back to the rule of the Judges in Israel, to an idealized imperial Roman structure, and to the legend of Brutus as the founder of England popularized in Geoffrey of Monmouth’s History of the Kings of Britain.

In both, royal and political dominion, the system of government is determined by historical origin. In the case of political dominion, the origin resembles the modern model of social contract, but with two important distinctions. Although the people enter into a design by their own agreement, in which a king rules by laws peculiar to their identity, the design is not that of a trust, as in Lockean political theory, nor are the people wholly incapable of self-direction, as in Hobbes.

The organic model of kingship, with the king as head and the people as the members of the body, was a commonplace in medieval political thought. Fortescue’s innovation was to describe political dominion in its terms. He began by describing the heart of the body as the intention of the people. His term, intencio populi, has been mistranslated as ‘‘will of the people,’’ which too easily suggests an autonomy that the people have in fact surrendered in entering the ‘‘mystical body’’ of government. The king, not the people, provides the body its will. The intention precedes the deliberation, which precedes the willing in Fortescue’s model. The desires and ideas of the people serve as the intention, the king’s reasoned consideration of these - dependent upon royal council - serves as deliberation, and the royal action articulates the will of the body politic. Were the former two elements to be absent, the result would be simple royal dominion. The heart distributes the blood, which Fortescue describes as the political provision for the interests of the people, which nourishes all the members of the body and strengthens the sinews, the laws that bind the body together. The body that results is not merely the sum of its parts. Fortescue describes a ‘‘mystical body’’ of the realm, a corporate being, personified in the crown that survives damage done to its members. He gives the analogy of a college, in which laity and clergy are joined together under the guidance of a governing element into a corporate person, a collegium. Just as the college endures despite matriculation and graduation and changes in administration remaining a separate entity apart from its members, so, too does the crown.

An important result of Fortescue’s version of the mystical body of the realm is that the king is incapable of doing evil. In Augustinian theology, evil is an absence, or privation of good, which means that choosing evil is choosing a nonbeing, a detraction from, rather than use of, the will’s power. Willing evil, then, becomes an impotence, a privation of the will’s power. This is most particularly the case for angelic wills, unstained by original sin; the angelic rebellion was effectively a surrender of angelic power. Likewise, Fortescue describes tyranny as a privation, a privatio potestatis in his analogy of the king as embodying the realm’s will, suggesting that the mystical body is more angelic than human. Earlier medieval political theorists might use this as an opportunity to discuss the place of the church in the political structure, but Fortescue speaks little of ecclesiastical matters and never of the relation the quasi-angelic crown has to the corporate nature of the church.

The one role ecclesiastics have to play is in the makeup of the king’s council. The contribution of a select group of wise counselors plays an important role in Fortescue’s argument that political dominion must be consent-based, affording the people and the king the justice they deserve. Deliberation must precede the exercise of the royal will, and Fortescue describes a private group of chosen men as ideal for this task. The council he recommends is not made up of the wealthiest in the kingdom but is a body of laity and clergy, twelve of each, with a governing body of six supervised by two of their number. A mistake frequently made in royal councils has been to rely upon the wealthiest members of the nobility, which has led inevitably to oligarchic decision making and, frequently, to the diminution of the royal office. Fortescue’s council obviates the need for the king to have an all-encompassing grasp of the law, but the king should be as knowledgeable about the laws of the realm as is necessary for the proper execution of the justice of the crown, just as he ought to be practiced in warfare sufficiently to protect the realm from external threat. These two responsibilities define kingship, and absence of means to either will cripple the realm. Accordingly, Fortescue argued strongly that the king should be, by far, the wealthiest individual in the realm.

See also: > Ptolemy of Lucca > Thomas Aquinas, Political Thought