Cromartie Alan. The Constitutionalist Revolution: An Essay on the History of England, 1450-1642 (Ideas in Context)

Подождите немного. Документ загружается.

Fortescue’s world 19

jurisdiction rested on a general consensus that there were numerous cases

beyond the scope of law and that non-legal methods of conﬂict resolution

were often perfectly appropriate; thus when Fortescue, as Chief Justice, was

helping to resolve a Chancery matter, he took it as axiomatic that ‘we are

to argue conscience here, not the law’.

It has been plausibly maintained that the best way to think about the

early Chancery was simply as the royal way of offering non-legal arbi-

tration and that the Chancellor was not restricted to special areas of

expertise; what suits in Chancery had in common was simply that the

Chancellor had opted to accept them.

There were, however, certain oper-

ations requiring cancellarial intervention. The one that bulked the largest

in every gentleman’s imagination was surely his role in enforcing enfe-

offments to uses. One failing of the common law, in a country with an

active land market, was its absolute prohibition on leaving real property

by will. Most landowners evaded this by enfeofﬁng some part of their

property to uses, in other words by granting it to a body of trustees, a

group who then became its legal owners, but who held it ‘to the use of’ the

true proprietor. This common device had the further substantial advantage

that property that was enfeoffed to uses was immune from all the feudal

obligations (most notably, and onerously, wardship) attending ordinary

inheritance.

The appearance of a mechanism supplementing law was not in itself a

recipe for conﬂict; a rule-bound system arguably needed the sort of ﬂexi-

bility the Chancellor provided. It was only if law had unlimited power to

supplement itself that clashes became unavoidable. On one occasion in the

ﬁfteenth century, a claim of this type was explicitly advanced. According

to Justice Yelverton, in 1468,

We will do now in this case as the Sorbonnists and civilians do when a new case

comes, for which they have no law before...they resort to the law of nature which

is the ground of all laws, and according to that which is suggested by them to be

more beneﬁcial for the commonwealth, etc., they do, and so now will we do.

This statement assumed some importance in early seventeenth-century

speculations precisely because it was virtually unique. The idea was in

no way remarkable (it can be found in local custumals),

so the fact

that it found little echo in the Year Books is interesting and signiﬁcant;

Quoted in J. H. Baker, An introduction to English legal history, 3rd edn (1990), 124.

J. B. Post, ‘Equitable resorts before 1450’, in E. W. Ives and A. H. Manchester (eds.), Law, litigants,

and the legal profession (1983), 70.

Doe, Fundamental authority, 71.

Ibid., 72.

20 The Constitutionalist Revolution

judges were evidently quite reluctant to characterise their actions in these

terms.

The problem with Yelverton’s dictum was that it left no space outside the

judges’ jurisdiction; the danger of ending up with such a theory may indeed

have discouraged reﬂection on the system’s character. The only picture of

law that judges needed was one that created a gap just large enough between

procedures and their justiﬁcation to offer some scope for revision of existing

principles. Fortescue’s practice as a judge provides us with an interesting

example. He once robustly told the court that:

Sir, the law is as I have said, and has been always since the law was ﬁrst begun, and

we have many courses and forms, which are held for law, and have been held and

used because of reason, although the same reason may not be readily remembered;

but by study and labour it may be found; and if any such course or form is and

has been used contrary to reason, it is no harm to amend it.

The idea of law as rational thus seems to have functioned for Fortescue in

two quite different ways: both as a guarantee that rules had reasons; and as

a licence to amend those rules where they were found unsatisfactory.

The ambiguity was a fruitful one; by the early years of Henry VII’s reign,

a law that was thought of as reason could even be seen as in some sense

approving the Chancellor’s extra-legal operations. Petitioners to Chancery

could encourage a certain conﬂation by making their appeal to ‘reason and

conscience’, and judges could pick up this kind of language. Thus in a

Chancery case involving fraud, a common law judge could remark that

it was ‘good reason and conscience that the party will be restored [to his

possessions], and if he cannot be by common law, then it is good learning

(bon science) that he should be by conscience’.

The very development of

the subpoena as an instrument for controlling a feoffee was known to be

partly attributable to judges; it was not until the time of Henry VI that a

subpoena could be sent to the heir of a feoffee ‘and on that point the law

was changed by Fortescue Chief Justice’.

Unfortunately for historians, Fortescue left no treatise that addressed this

sort of question. The writings he did leave behind him were not attempts

at legal theory, but pamphlets stimulated by a crisis in the nation’s poli-

tics, of which only one, De laudibus legum Angliae, acquired an extensive

readership. The importance of these writings to our story has little to do

with Fortescue’s intentions; as the rest of this chapter will show, Fortescue’s

YB 36 Henry VI fos. 25–6, pl. 21.

YB P 7 Henry VII fo. 11, pl. 2.

Reports of cases by John Caryll, ed. J. H. Baker, 2 vols., Selden Society 115–16 (1998–9), ii, 396.

Fortescue’s world 21

mind was nothing if not fertile, but his strictly political theory was not

so very different from Bracton’s – which is to say that it was moralistic

and altogether focused on the monarch. What readers found in Fortescue,

however, was unimpeachable authority – the word of a Chief Justice – for

a range of near-republican opinions.

Fortescue worked for almost twenty years (1442–61)asHenry VI’s Chief

Justice of King’s Bench, but all his writings were produced in the unsettled

period that followed, when he was titular Lord Chancellor and one of the

exiled Margaret of Anjou’s most prominent advisers. Besides some slight or

fragmentary pieces, they included three contrasting major works: De natura

legis naturae (c. 1463), a tract on the succession, which he probably wrote

in political exile in Scotland; De laudibus legum Angliae (c. 1470), his pane-

gyric on the laws of England, which he undoubtedly composed in France;

and the interesting untitled memorandum that has been known since 1885

as The Governance of England (c. 1474), which was advice addressed to

Edward IV after the ﬁnal triumph of the Yorkists. Fortescue’s works have

often been presented as if they were examples of ‘common law thinking’,

but it would be more cautious to describe them as pamphlets written by a

common lawyer. Both De natura and De laudibus were after all the prod-

ucts of a member – perhaps, to some extent, the effective leader – of a

faction in a desperate situation. As might have been expected, the view

of law that he produced was shaped by the needs of his party, so much

so that he demonstrably altered his position about the system’s range of

competence.

In the political debate in which he was engaged, the principal question at

issue was whether females could transmit a claim to inherit the throne: the

Yorkists were descended through two women from Edward III’s second son;

the Lancastrians were descended from his third son, John of Gaunt, but all

the intervening links were male. Though he had earlier employed a range of

arguments, Fortescue’s best-known writings concentrated on this particular

consideration. The earliest of his pamphlets, Of the title of Edward earl of

March, was written in early 1462.Here he appealed to English ‘law and

custom’ to show the invalidity of any claim transmitted through a woman,

but he also maintained that even if it were granted that Henry IV was simply

a usurper, this point had long ceased to be relevant. His grandson’s title was

conﬁrmed by four undoubted facts: God’s permission, the approbation of

22 The Constitutionalist Revolution

the papacy, the consent of the people of England (including the Yorkists),

and long possession of the kingly power.

ButFortescue later abandoned these ideas. By the time he composed

De natura, which was probably in 1463,Edward was more secure upon his

throne and arguments from possession had ceased to favour the Lancastri-

ans. It made much more sense to adopt a legitimist standpoint, to argue,

that is, that no power on earth could weaken or efface king Henry’s title. He

therefore chose to make a sharp distinction between the natural principles

deciding succession to kingship and the internal laws of particular nations:

Before the time of Moses, there was no human lex besides some consuetudines

brought in by men in certain territories, which could not have begun the kingly

ofﬁce, since consuetudo only grows from repeated acts and length of time, so that it

could not have begun the rank of king; and the decrees (constitutiones)ofprinces,

which only bind subjects, could not have set up (constituisse) the kingly eminence

which knows no superior...norought the ordinances of men by which some

of them are erected into kings deservedly be called decrees but acts of the law of

nature.

Fortescue’s motive for this change of heart was surely a simple political

calculation; Lancastrians needed arguments that could not be eroded by pre-

scription. But this expedient shift of ground had long-term consequences,

not least in requiring his picture of law to place a novel emphasis on custom.

As a Lancastrian partisan, Fortescue must have feared the claim that

unwritten law, as declared by royal judges, was evidence of nature’s law for

England (and therefore that the judges had the authority to validate the

Yorkist usurpation). A claim of this sort was implicit in everyday practice,

for when the common lawyers spoke of ‘reason’, it is unlikely that they

knew if they were appealing to natural or positive law; the tendency of this

whole way of talking, not least in the judicial work of Fortescue himself, was

to erase or blur the difference. But Fortescue the Lancastrian propagandist

had opted to depict all legal rules as either natural or positive. As the former

type of rule was universal–apart of every nation’s legal system – it followed

that legitimate rules peculiar to England must all be positive in character.

The consequence of making a rigid distinction between natural and man-

made principles was thus to force the bulk of English law into the category

of consuetudo.

SirJohn Fortescue, Knt, his life, works and family history, ed. Thomas Fortescue, Lord Clermont, 2 vols.

(London, 1869), i, 69

∗

.For a similar but more detailed account of these works see Alan Cromartie,

‘Common law, counsel and consent in Fortescue’s political theory’ in The ﬁfteenth century 4 (2004),

45– 67.

Fortescue, Works, i72–3.

Fortescue’s world 23

De laudibus put this theory to work. When Fortescue was trying to show

that English law was better, at least for the English, than any comparable

legal system, he conﬁdently stated that all of its rules were natural, or,

custom, or statute. For the purposes of a comparison, the law of nature

could be disregarded, on the grounds that its rules were identical everywhere

(he noticeably did not try to argue that judges in England interpreted it

better).

The wisdom of statute could be relied upon, because the statutes

had been made by the assent of the whole realm gathered in parliament.

Everything else was custom, and English custom’s suitability was shown

by the fact that no conqueror had changed it, not even the Romans ‘who

judged almost the whole of the rest of the world by their laws’.

Thus Fortescue’s need to distinguish ‘laws of nature’ from more parochial

legal principles affected the way he presented those legal procedures pecu-

liar to England. But his decision to cram legal rules into the category of

consuetudo demanded, in turn, an unusual picture of custom. As we have

seen, an obstacle to seeing common law as consuetudo was that it was, if

anything, the custom of the lawyers, not the people. Fortescue managed

to avoid this problem by leaving out any suggestion that unwritten but

positive law had been produced by popular consent; his claim that English

custom was superior rested entirely on the observation it had never actu-

ally been altered. But though he gave no comfort to populist claims about

the ultimate origins of custom, his later readers tended to ignore what

doubtless seemed to be an oversight. This was because they read his views

within the context of a larger doctrine, a theory of the character of English

monarchy.

This doctrine of course has a label that was given it by Fortescue himself:

dominium politicum et regale. All three of his main works – the ‘Yorkist’

Governance as much as the earlier ‘Lancastrian’ De natura – gave somewhat

disproportionate attention to the idea that the best rule is not ‘regale tantum’

(merely regal), but what he called ‘politicum’aswell; and that ‘regal and

politic lordship’ is beneﬁcial to the lord as much as to his subjects. The

nub of the distinction between the two forms appeared to be that regal and

politic rulers could neither tax nor legislate without the consent of their

people. He presented these ideas as ‘incidental’

to the ideas advanced in

De natura, but they were clearly central to his opinions about government;

De laudibus referred four times to De natura’s text, each time to its proof

that ‘regal and politic’ rule was in the personal interests of the monarch.

Fortescue, De laudibus, 38.

Ibid., 40.

Ibid., 38.

Fortescue, Works, i63.

Fortescue, De laudibus, 26, 34, 80, 90.

24 The Constitutionalist Revolution

In both De laudibus and The Governance, the contrast was considerably

enlivened by an appeal to patriotic feeling. He broke with the tradition

of Glanvill and Bracton by treating the Lex Regia as something alien. In

Fortescue’s opinion, it was acceptance of the principle quod principi placuit

legis habet vigorem that accounted for the misery of France. The unfortu-

nate French peasantry had been impoverished by the demands of royal tax

collectors. In prosperous England, however, security of property explained

the country’s wealth, its military prowess, and the existence of a class of

honest, independent jurymen. It seems unlikely that these claims were just

a tactical expedient. An exiled propagandist had every incentive to argue

for moderate government, but the ﬁrst third of The Governance, addressed

to his victorious enemies, was devoted to exactly the same point.

There can be little doubt, then, that Fortescue was genuinely committed

to the ideal of regal and politic lordship. But the precise sense of the phrase

is difﬁcult to grasp, partly because its classic deﬁnitions, which dwell on

the need for consent to laws and taxes, are subtly but signiﬁcantly mislead-

ing. Scholars who think of common law as rules worked out by popular

agreement have naturally jumped to the conclusion that Fortescue valued

consent for its own sake. The truth is slightly different, for though consent

was certainly important to his thought, the type of consent that he valued

was consent in parliament, consent that was a sign that kings had taken

appropriate counsel.

Appreciation of this point is crucial to a proper understanding of Fortes-

cue’s political position, but demonstrating it is not straightforward. One

reason his work is so easy to misread is that he introduced his terms in

a confusing context. The ﬁrst appearance of the phrase was part of his

attempt to meet a dangerous objection. As he was trying to maintain that

the succession to a monarchy should be determined by the law of nature, he

had to show that monarchy itself was natural. Like any Christian who sup-

ported kingship, he needed to explain away a well-known Old Testament

passage: Samuel’s description of ‘the law (ius)ofthe king who is to rule over

you’, who would ‘take your ﬁelds and your vineyards and your best olive

groves, and give them to his servants’. As such behaviour contravened the

principle of doing as one would be done by, this ‘law of the king’ was in

conﬂict with natural law.

Fortescue’s answer was the standard one that Samuel’s remarks were a

prediction of the behaviour of the tyrant Saul, not a description of the

rights of kings in general. Though Saul was not strictly entitled to act

oppressively, God punished the ungrateful Israelites by giving him the sort

Fortescue, Works, i74.

Fortescue’s world 25

of powers that allowed him ‘to do wrong, freed (absolutus)from all bonds of

human law’;

what made God’s act a punishment was that other forms of

monarchy existed. It was in the context of his proof that not all kings enjoyed

the powers of Saul that Fortescue ﬁrst mentioned dominium politicum et

regale.Henoted that Aquinas (1224–74) had praised two different types

of government, dominium politicum and dominium regale, and that Giles

of Rome had spelled out the distinction. Fortescue cited Giles as having

stated that ‘he is head of a regal government, who is so according to the

laws which he himself lays down, and according to his will, but he is head

of a political government, who governs the citizens according to the laws

which they have established’.

He went on, however, to qualify this statement:

But that there is a third kind of government, not inferior to these in dignity and

honour, which is called the political and regal, we are not only taught by experience

and the histories of the ancients, but we know has been taught in the teaching of

the said St Thomas also. For in the kingdom of England the kings do not make

laws, nor impose subsidies on their subjects, without the consent of the Three

Estates of that Realm. Nay, even the judges of that kingdom are all bound by their

oaths not to render judgment against the laws of the land, although they should

receive the commands of the sovereign to the contrary. May not then this form of

government be called political, that is, regulated by the administration (dispensatio)

of many...?

Here Fortescue was making a rather narrow point: there could exist a

government with regal and political elements, and England was an obvious

example.

He went on to mention two further instances: imperial Rome

was part political because the imperial ofﬁce was not hereditary; the Israelite

theocracy was part political because its ruling magistrates, the judges, were

bound to account for their actions to the people.

Both of these facts were taken from the Thomist work he cited, the

treatise De regimine principum,atext he understandably believed to rep-

resent the teachings of Aquinas. He had no way of knowing that this was

a composite work by dissimilar authors. The opening eighteen chapters,

which seem to have been composed by Thomas himself, were ﬁrmly monar-

chist in sympathy, but the rest of the work, which is usually said to have

been produced by Ptolemy of Lucca (c. 1264–1327), is markedly republi-

can in feeling. Fortescue took material from both portions. Thus he noted

the view, expressed in the opening chapters, that monarchy was preferable

because it resembled God’s rule in his creation; but he also cited Ptolemy’s

Ibid., i83.

Ibid., i77.

Felix Gilbert, ‘Sir John Fortescue’s dominium politicum et regale’, Medievalia et humanistica 2

(1944), 92–3.

26 The Constitutionalist Revolution

opinion that sinless human beings would be ruled politically.

The notion

of dominium politicum et regale was amongst other things a brave attempt

to reconcile such inconsistencies.

He found the word politicus in Ptolemy’s material, where it was derived

from polus meaning ‘many’, and used, of course, to mean ‘republican’; the

simplest distinguishing feature of republics was that they were controlled by

more than one person. In Ptolemy’s view, all types of legitimate ruler were

bound to govern for the public good, but a further distinguishing feature

was that republican regimes were strictly bound by law, unlike their regal

counterparts, who were allowed to exercise discretion.

Noteven monarchs

were allowed to levy unnecessary taxes, so Samuel’s famous prophecy was

not a description of kingship, but of a despotism.

Thus a political regime

had to respect its subjects’ property, but a regal one could tamper with

property rights whenever the collective good made this desirable. All these

ideas are found in Fortescue. The aspect of Ptolemy’s theory that he did not

accept, perhaps because he simply failed to grasp it, was Ptolemy’s claim

that communities could ﬂourish without a single person’s leadership.

Though Fortescue mentioned other forms in passing, he fully accepted

the teaching of Aquinas that monarchy was the most natural; at times,

indeed, he came close to suggesting that no community could do without

it.

He seems to have thought of republican Rome as a sort of mutant

kingdom, in which a pair of consuls shared the functions of the king;

this was doubtless why he leapt to the conclusion that the Republic had

collapsed ‘by division that ﬁlle betwene the consuls for lakke of an hed’.

Given this ﬁrm commitment to government by kings, the role that he

found for the many was necessarily auxiliary. Thus Fortescue invoked the

role of the Blessed, who were to rule as ‘senators’ with Christ, and play

a part in judging men and angels.

His clearest single statement on the

subject was his advice to merely regal kings:

Butyou, O king, who rules regally, make it your business, as far you can, to

rule politically also. For polity (politia)issocalled from polus, which is plurality,

and ikon, ministration (administratio),asitwere a system of government served

(ministratum)bythe advice of many. Manage the common weal of your realm by

the advice of many.

Fortescue, Works, i72, 84;cf. Thomas Aquinas, Opuscula omnia necnon opera minora, ed. J. Perrier,

3 vols. (Paris, 1949), i, 227, 286–7.

Aquinas, Opera minora, i 362.

Ibid., i 332.

Fortescue, Works, i80; De laudibus, 30; The governance of England: otherwise called The difference

between an absolute and limited monarchy, ed. Charles Plummer (Oxford, 1885), 112.

Fortescue, Governance, 347.

Fortescue, Works, i84.

Ibid., i85.

Fortescue’s world 27

He went on to adduce the way in which ‘the kingdom (regnum)ofthe

Romans, long regulated by the counsel of three hundred and twenty sen-

ators, grew from very small into the greatest empire in the world’; and

the contrast between Solomon, who prayed for a teachable heart, and

Rehoboam who ‘despising the advice of the wise, lost more than ten parts of

his father’s kingdom’. The moral of this story was that ‘the opinion of a king,

whoever he may be, is not sufﬁcient to rule a kingdom, without the sup-

port of counsellors, even though that king were son of Solomon’.

Where

kingdoms were concerned, at any rate, political rule was rule employing

counsel.

This principle explains the next two chapters, in the ﬁrst of which even

political kings were informed it was sometimes ﬁtting to govern regally.

Notevery case was covered by existing ‘statutes and customs’, so those

that remained were left to the royal discretion. What was more, epieikeia

required the occasional use of an absolute power (potestas absoluta), ‘not

indeed so that [a ruler] might release (solvere)aperfect law, but rather so

that he might himself better fulﬁl the law of his kingdom by reason of the

law of nature, which is natural equity’.

The only limit on this power was a

signiﬁcantly worded warning: ‘let a king ruling politically be careful that he

does not enact new laws without consulting the chief men of his kingdom,

repudiating laws of his own kingdom that are pregnant with justice’.

The

following chapter went further. He noted that ‘there are however very many

other circumstances in which it is sometimes permissible and expedient

for a king ruling politically to use a regal violence (regaliter saevire)on

certain of his people’.

In case of a rebellion or invasion, it might be

perfectly acceptable for monarchs to act as Samuel had predicted, taking

their children and their property in order to provide for public safety.

Precisely because kingship had been ordained to serve the common good,

kings had a right to over-ride their subjects’ privileges.

This was the passage that led S. B. Chrimes to abandon the Victorian

conception that Fortescue believed in ‘constitutional monarchy’ (deﬁned as

monarchy ‘controlled by some other co-existent power’). Chrimes thought

it better to describe such kings as ‘limited’, that is, as ‘absolute except in

certain spheres delimited by law and custom’.

Buteven this modiﬁed

formula is misleading, because it suggests that the different spheres were

clearly demarcated: that there was an established list of limitations on

political monarchs. In fact, from God’s perspective, political and regal kings

Ibid., i85.

Ibid., i86.

S. B. Chrimes, English constitutional ideas in the ﬁfteenth century (Cambridge, 1936), 339 n.

28 The Constitutionalist Revolution

had virtually identical rights and duties. Neither could wilfully remove the

subject’s property; both were enjoined to use epieikeia whenever a general

law appeared deﬁcient in a particular case; both could and should ignore

the law in an emergency. The difference between the two was captured by

a simple principle: that a political ruler was strictly obliged to take counsel

whenever doing so was practicable. Where taking advice was impracticable,

this principle had a corollary: political kings should act like regal ones,

that is, they should use their discretion, guided by their perception of the

common interest. Fortescue showed no interest, however, in distinguishing

the numerous occasions when acting on advice was practicable from the

minority when it was not.

On this interpretation, then, the role of Fortescue’s concept of the polit-

ical was to identify and to commend a form of monarchy that took advice.

The notion that obsessed him was not consent but counsel; members of

parliament were councillors, and the need for parliamentary approval for

royal legislation was really just an aspect of the need to take advice. This

reading is supported by his later treatises, at least when their details are

carefully examined. De laudibus praised the written laws of England pre-

cisely because of the counsel they embodied. In merely regal kingdoms,

the king’s laws were sometimes damagingly self-interested, while at other

times

by the inadvertence of princes of this type and by the inertia of their counsellors,

their statutes are issued so ill-advisedly that they deserve the name of corruptions

rather than of laws. But the statutes of England cannot arise in this way, since

they are issued not only by the will of the prince, but also by the assent of the

whole realm, so that they cannot do that harm to the people or fail to secure

their advantage. It must be supposed that those laws are ﬁlled with foresight, too,

and wisdom, since they are not issued by the foresight of one or of a hundred

counsellors only, but of more than three hundred chosen men – such a number as

the senate of the Romans was ruled by.

The passage is not easy to translate, but Fortescue’s main emphasis is clearly

on the wisdom of a process; the chapter heading states that ‘Here he shows

with what solemnity statutes are issued in England.’ He may conceiv-

ably have thought that the wisdom of the process derived from the rep-

resentation of various interests, but this idea is nowhere unambiguously

stated.

Analogous points can be made about another famous passage: the tren-

chant opening of The Governance:

Fortescue, De laudibus, 40 (translation much amended).