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Fortescue and the Renaissance: a Study in Transition

  • Arthur B. Ferguson (a1)

Extract

At one point in the development of this paper I contemplated calling it ‘Sir John Fortescue in another context'. I abandoned the title as too cryptic; but my intention remains the same, namely, to place Fortescue's thought in a less familiar but, I hope, a none the less revealing context. For the benefit of those who may well feel that the dominium politicum et regale in any other context would smell no fresher, let me hasten to add that I am not here primarily concerned with that famous formula, nor for that matter with Fortescue considered primarily as a political or legal theorist.

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1 See, for example, C. Plummer's introduction to his edition of Fortescue's The Governance of England (Oxford, 1885) and Lord Clermont's introduction to his edition of The Works of Sir John Fortescue (London, 1869). The most recent investigation of Fortescue's debt to Aquinas is in Felix Gilbert's ‘Sir John Fortescue's Dominium Regale et Politicum', Medievalia et Humanistica II (1944), 88-97.

2 Mcllwain, C. H., The Growth of Political Thought in the West (New York, 1932), pp. 354363 . Most famous of the evaluations unfavorable to Fortescue as an interpreter of fact is Pollard's, A. F.: ‘The constitutional ideal which Sir John Fortescue depicted at the close of the middle ages had little more relevance to the practice of his day than More's Utopia had to the government of Cardinal Wolsey(The Evolution of Parliament, London, 1934, p. 133). See also Skeel, C. A. J., ‘The Influence of the Writings of Sir John Fortescue’, Transactions of the Royal Historical Society, 3d Series, X (1916), 7980 ; Chrimes’, S. B. edition of Fortescue's De laudibus legum Angliae (Cambridge, 1942), p. c; R. W. and Carlyle, A. J., A History of Medieval Political Theory in the West (Cambridge, 1936), VI, 175179, 192-226.

3 On this point, and for having my attention called to the significance of the fact that Fortescue's major works stem from his later years, I am indebted to Professor Margaret Hastings.

4 Much of the background for this paper may be found in the author's articles, ‘Renaissance Realism in the “Commonwealth” Literature of early Tudor England', Journal of the History of Ideas XVI (1955), 287-305, and ‘The Problem of Counsel in Mum and the Sothsegger’. Studies in the Renaissance II (1955), 67-83. The author is currently engaged in exploring the political literature of England from the late fourteenth to the early sixteenth centuries with similar questions in mind.

5 De natura legis natures, in Life and Works of Sir John Fortescue, ed. Lord Clermont (London, 1869). Felix Gilbert has called attention to the impact of practical considerations on this seemingly so theoretical work (op. cit. above). In this same article he stresses also the progressive impact of events on Fortescue's thought, especially the events of his exile.

6 The editorial introduction to S. B. Chrimes’ edition (with translation) is, incidentally, the most recent extensive discussion of Fortescue. Interesting comments on his legal thought are contained in the general preface, by H. D. Hazeltine, editor of the Cambridge Studies in English Legal History.

7 Governance of England, reprinted in Dunham and Pargellis, Complaint and Reform in England (New York, 1938), pp. 51-82.

8 Johffe, J. E. A., The Constitutional History of Medieval England (London, 1937), p. 430 .

9 Governance, chap. iii.

10 De natura, chap. xxv.

11 De laudibus, chap, xxxv (p. 84, lines 34-35), chap, xxxvi (p. 88, lines 11-13); chaps, xxxiii and xxxiv.

12 In his essay ‘The Political and Constitutional Theory of Sir Fortescue', John, in Essays in History and Political Theory in honor of Charles Howard Mcllwain (Cambridge, Mass., 1936), pp. 295296 , Max A. Shepard called attention to Fortescue's background of the moderately well-to-do country gentry as an explanation of his interest in the Lancastrian tradition. I am not at all sure that either factional affiliations or social background were likely to affect the general approach of a fifteenth-century Englishman to the principles of government.

13 De laudibus, chaps, xxxv and xxxvi; Governance, chap. iii. On Fortescue's accuracy, see Chrimes, , De laudibus, pp. 181183 (re chap, xxv); cf. R. W. and Carlyle, A. J., A History of Medieval Political Theory in the West (Cambridge, 1936), VI, 175179, 192-226, Petit-Dutaillis, C. in Lavisse, E., Histoire de France (Paris, 1911), IV, part 2, pp. 207 ff., 251-252, 299-400.

14 The general outlines of Fortescue's ideas may be found in De natura, part 1, chaps, xvi, xxii-xxvi; De laudibus, chaps, ix, xiii, xiv, xviii, xix, xxxv-xxxvi; Governance, chaps, i—iii. Fortescue's tendency to identify law and constitution is fundamental in his thought. The mixed government of England had its foundation in the common law, which in turn was the particular expression for English needs of the higher law of nature. Hence he was able to write the De laudibus legum Angliat primarily in an effort to justify what we should call the English constitution. (See chaps, ix, xiii, xiv, xviii, xix, xxv-xxvi.) In his zeal for the ‘mixed’ monarchy, Fortescue all but identified despotism with tyranny. Having enshrined the rights of private property in the absolute law of nature rather than in the mutable ius gentium as the practice had been among medieval theorists (Shepard, pp. 300-301), and having set up respect for property as a fundamental criterion of good government, he made it very difficult for a despotic monarch to reap any benefit from a power unlimited by positive law without being guilty of tyranny; because, if he took property without the consent and advice of the subjects, it implied that he could not get it with their consent, that he was therefore acting in violation of the law of nature, ruling for his own convenience, in short, becoming a tyrant (De natura, part 1, chap, xxviii). But Fortescue treated the civil law with great deference and followed Biblical and philosophical authority in declaring that a despotism is good when at its best (De laudibus, chap, xxv; cf. chap, xxxv, De natura, part 1, chaps, xi, xii, xvi-xviii), and moreover, he was careful to point out that in practice a despotic régime does not necessarily become tyrannical (De laudibus, chap, ix; Governance, chap. iii). He merely tended to take it for granted that all good government must be, in its effects, like that of England (when the latter was functioning properly) no matter what its legal powers might be. What he distrusted was not the rule of a benevolent despot, but the entire lack of any limitation other than the digna vox within the breast of the king to prevent him from degenerating into a tyrant. ‘Therefore [he said] clap your hands, ye subjects of a king ruling royall, under a good sovereign, when such a one there is, because ye must needs mourn when an insolent or grasping king rules over you. And you, ye subjects of a king presiding royally and politickly over his kingdom, console yourselves in this respect, that, if your king be equally arrogant, he hath not a loose rain for it, like the other’ (De natura, part 1, chap, xv, p. 87).

15 Governance, chaps, x, xi, xv, xvii, xviii.

16 Ibid., chaps, iv-ix. For contemporaneous comment, see, for example, George Ashby, The Active Policy of a Prince, in The Poems of George Ashby, ed. Mary Bateson (1899, E.E.T.S., E.S. 76); Political Poems and Songs Relating to English History …from the Accession of Edward III to that of Richard III (1861, Rolls Series), II, 229-231. See also Chrimes, S. B., An Introduction to the Administrative History of Medieval England (New York, 1952), PP. 243246 .

17 See especially, Active Policy, lines 618-642, 807-813, 870-873, 541-552, 716-722.

18 On this tradition, and especially the influence of the pseudo-Aristotelian Secreta secretorum, a genre apparently very popular (if only faute de mieux) among the fifteenth-century English governing class, see Kleineke, Wilhelm, Englische Fürstenspiegel vom Policraticus Johanns von Salisbury bis zum Basilikon Down Konigjakobs I (Halle, 1937); Robert Steele ed., Secrees of Old Phihsoffres (E.E.T.S., E.S. 66, 1894), introduction; Gilbert, Allan H., Machiauelli's Prince and its Forerunners (Durham, N. C., 1938); Born, Lester K., ‘The perfect prince, a study of 13th and 14th century ideals’, Speculum III (1928), pp. 470 ff. Born has included a useful bibliography of the mirror of princes literature in his edition of Erasmus’ The Education of a Christian Prince (New York, 1936). Cf. Gilbert, Allan H., ‘Notes on the Influence of the Secretum Secretorum ’, Speculum III (1928), pp. 8498 .

19 Some modern scholars have hesitated to credit Fortescue with a truly scholarly or profound treatment of his subject: cf. Skeel, C. A. J., ‘The influence of the writings of Sir John Fortescue’, Transactions of the Royal Historical Society, 3d Series, X (1916), pp. 7980 ; Mcllwain, C. H., The Growth of Political Thought in the West (New York, 1932), p. 354 . Chrimes allows that Fortescue's comparisons of English and Roman law ‘may not be very profound’, but emphasizes the fact that they mark the beginning of a less insular outlook on the part of the common lawyer and foreshadow the comparative study of law (De laudibus, pref., p. c).

20 Pecock, Reule of Crysten Religioun, ed. W. C. Greet (1926, E.E.T.S., O.S. 171), pp. 17-19; The Repressor of Over Much Blaming of the Clergy, ed. C. Babington (1860, Rolls Series), I, 46-47.

21 E.g., Governance, chap. ix.

22 Specific references for an amplification of the above material may be found in the author's article, ‘Realism in the “Commonwealth” Literature of Early Tudor England'. For Hale's clock analogy in particular, see Discourse of the Commonweal of this Realme of England, ed. E. Lamond (Cambridge, 1893), p. 98.

23 The importance of economic developments in the history of modern political consciousness is one that requires considerable study.

24 On this subject, see the excellent article by Bouwsma, W. J., ‘The Politics of Commynes’. Journal of Modern History XXIII (1951), 315328 .

25 Mosse, G. L., ‘Sir John Fortescue and the Problem of Papal Power’, Med. et Hum. VII (1952), 8994 ; Jacob, E. F., Essays in the Conciliar Epoch (Manchester, 1943), chap, VI, especially p. 119 ; Hazeltine, p. iii. Cf. Kleineke, pp. 174-179.

26 Delaudibus, chap.iv; De natura, part I, chap.xlvi, p. 113.

27 A treatise concerninge the Staple, in Tawney, R. H. and Power, Eileen, Tudor Economic Documents (London, 1924), III, 90114 .

28 Governance, chap, v, see also chaps, viii-xiv.

29 Ibid., chaps, v, ix, and xv.

30 See the author's “The Problem of Counsel in Mum and the Sothsegger’. Cf. Governance, chap, xvi, and the related fragment entitled Example what good counsayle helpithe and advantageth and of the contrary whatfolowith, printed by Plummer in Governance, appendix A. ‘new technique of counsel’ was an increasingly recognized issue in late medieval government; cf. Chrimes, , Introduction to the Administrative History of Medieval England, p. 246 .

31 De laudibus, introd., p. cii.

32 Ibid., chap. xxix.

33 Governance, chap. xii

34 E.g. ibid., chap. iii. See also chap. ix. His reference to the Brutus legend is in chap. ii. It is worth noticing that Fortescue's historical approach to the government of his day anticipates that of SirSmith, Thomas in De republica Anglorum, ed. Alston, L. (Cambridge, 1906), Book 1, chap. xv.

35 Pocock, J. G. A., The Ancient Constitution and the Feudal Law (Cambridge, 1957).

36 Governance, chap. ii. For background material on medieval notions of social origins see Boas, G., Essays on Primitivism and Related Ideas in the Middle Ages (Baltimore, 1948).

37 De laudibus, chap, xlviii.

38 Ibid., chap, xviii. Chrimes notices this in his introduction, p. xlvi.

39 Governance, chaps, xii-xiii.

40 Perhaps the best treatment of Langland's political outlook is Donaldson, E. T., Piers Plowman, the C-Text and its Poet (New Haven, 1949). No systematic effort has as yet been made to canvass Gower's voluminous writings in this respect, but useful material may be found in Wickert, Maria, Studien zujohn Gower (Diss., University of Koln, 1953), and Coffman, G. R., ‘John Gower in his most Significant Role’, Elizabethan Studies and other Essays in Honor of George F. Reynolds (1945, University of Colorado Studies, Series B, vol. II, no. 4), pp. 5261 .

41 Governance, chap. xv. Cf. The Libel of English Policy, in Dunham and Pargellis, pp. 3-30.

42 Governance, chap. iv. Cf. De natura, part II, chap. viii.

43 Examples may be found in many earlier and contemporaneous texts; see, for excellent examples, Rotuli Parliamentorum, III, 336, and v, 622. For discussion of this concept of kingly duty, see Chrimes, pp. 14-17, 197.

44 Gilbert, F., “The Humanist Concept of the Prince and the Prince of Machiavelli’, Journal of Modern History XI (1939), 449483 .

45 Mosse, G. L. notices that Fortescue spoke of the ‘good publique’, but failed to rationalize it into an idea of'reason of state’ (The Struggle for Sovereignty in England, East Lansing, 1950).

46 Heckscher, E. F., Mercantilism (London, 1935), 1, 41 .

47 Fortescue undoubtedly sensed the need for some more adequate guarantees for English freedom than the intangible forces of custom, of a law devoid of coercive sanctions, or of the royal conscience, the latter too likely to fall discreetly silent before the ultimata of brute facts. (Cf. Chrimes, , Constitutional Ideas, p. 322 .) How he conceived the problem, and what he proposed to do by way of solving it are much more difficult questions to answer. He never confronted the problem as men of a later day did because, unlike them, he could not see it as one involving positive, institutional controls within a monarchy that was constitutional in a distinctly modern sense ( Mcllwain, C. H., The Growth of Political Thought in the West, p. 358 ).

48 Part 1, chap, xxvii.

49 Chap. viii. See also Arrowood, C. F., ‘Sir John Fortescue on the Education of Rulers’, Speculum X (1935), 404410 .

50 Chaps, x and xii; cf. chap. xiii.

51 De natura, part I, chap, xxiii; Governance, chap. viii. On the early sixteenth century theory, in which the council was considered as much a check against tyranny as a tool of irresponsible government, see Baumer, F. L., The Early Tudor Theory of Kingship (New Haven, 1939), pp. 180 ff. Chrimes, Cf., Constitutional Ideas, p. 322 , in which a contrary view of Fortescue's conception of the function of the council is expressed.

52 Chrimes, , Constitutional Ideas, p. 203 .

53 Governance, chaps xiv and xix; De laudibus, chaps, xviii and xxvi.

54 De natura, part 1, chap, xxiii.

55 De republica Anglornm, Book II, chap. i. See also Morse, G. H., ‘Change and Continuity in the Tudor Constitution’, Speculum XXII (1947), 1828 .

Fortescue and the Renaissance: a Study in Transition

  • Arthur B. Ferguson (a1)

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