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Fortescue and the Political Theory of dominium

Published online by Cambridge University Press:  11 February 2009

J. H. Burns
J. H. Burns
Affiliation:
University College, London
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Extract

After more than five hundred years the political ideas of Sir John Fortescue (c. 1394–c. 1476) retain the potency which has ensured that they have seldom suffered total neglect, even if much of the interest they have aroused has been ideological in character. It was perhaps only in the 1930s that Fortescue first received appropriate attention in the context of the history of political thought; and the varied consideration devoted to him by scholars over the past quarter of a century suggests that the process of appraisal is by no means complete. Despite much discussion of Fortescue's basic political categories, it will be argued here, important dimensions of his thought have been fore-shortened – notably in regard to origins, basis, and character of political society as such. Again, some of the perspectives in which the fundamental concept of dominium has been presented may be misleading if they are applied to Fortescue's use of that concept without full recognition of his specific political purposes.

Type
Articles
Information
The Historical Journal , Volume 28 , Issue 4 , December 1985 , pp. 777 - 797
Copyright
Copyright © Cambridge University Press 1985

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References

1 Work on Fortescue published in the 1930s is conveniently listed by Chrimes, S. B., Sir John Fortescue: De laudibus legum Anglie (Cambridge, 1942Google Scholar; reprinted 1949), p. c, n. 3. References below to De laudibus are to this edition. One item to be added to Chrimes' list is an important article of which publication was deliberately held back to await the publication of the Chrimes edition: Gilbert, Felix, ‘Sir John Fortescue's ‘dominium regale et politicum’’, Medievalia et Humanistica, fasc. II (1944), 88–97Google Scholar.

2 Hinton, R. W. K., ‘English constitutional theories from Sir John Fortescue to Sir John Eliot’, English Historical Review, LXXV (1960), 410–25Google Scholar: the discussion of Fortescue is on pp. 410–17. Litzen, Veiko, A War of Roses and Lilies: The theme of succession in Sir John Fortescue's works (Helsinki (Suomalaisen Tiedeakatemian Toimituksia, Sarja B, Nide 173), 1971)Google Scholar. Ferguson, Arthur B., ‘Fortescue and the renaissance: a study of transition’, Studies in the Renaissance, VI (1959), 175–94CrossRefGoogle Scholar; and The articulate citizen and the English renaissance (Durham, N.C., 1965), as index but esp pp. 111–29Google Scholar. Pocock, J. G. A., The Machiavellian moment: Florentine political thought and the Atlantic republican tradition (Princeton, 1975) pp. 9–12, 17–22Google Scholar. Koenigsberger, H. G. adopted Fortescue's terminology in the title of his inaugural lecture – Dominium regale or Dominium politicum et regale: monarchies and parliaments in early modern Europe (King's College, London, 1975)Google Scholar; and though his direct references to Fortescue are only incidental, the substance of the lecture is a further illustration of the continuing historical importance of the issues Fortescue's ideas raise.

3 Some of the authors cited above in n. 2 have of course been very much concerned with the immediate political objectives Fortescue had in mind: this is especially the case with the items by Hinton and Litzen. The argument here is directed very much to Fortescue's theory – but with a view to stressing the specifically political character of that theory.

4 Joannis Maioris…in Mattheum ad literam expositio (Paris, 1518), fo. lxiii v BGoogle Scholar.

5 Oakley, Francis, The political thought of Pierre d'Ailly: the voluntarist tradition (New Haven & London, 1964), esp. chap. 3Google Scholar.

6 Printed in The works of Sir John Fortescue, knight…, ed. Thomas, (Fortescue), Clermont, Lord (2 vols., London, 1869), 1, 59–184Google Scholar. The text was edited by Chichester Fortescue, later Lord Carlingford, who provided an English translation (ibid. pp. 185–333) and added a number of Remarks, Notes, and Illustrations (ibid. pp. 335–72).

7 Lxvi: Works, 1, 77. The whole chapter (ibid. pp. 77–8), which is the basis of the discussion in this and the next five paragraphs below, is conveniently reprinted by Chrimes, De Laudibus, pp. 152–3.

8 Cf. Chrimes, De laudibus, Introduction, p. xciv; and Gilbert, whose article cited above in n. 1 is largely concerned with this issue.

9 I am indebted to my wife for drawing my attention to this passage in the Summa. Aquinas also deals with the point, of course, in his commentary on the Politics: In libros politicorum Aristotelis expositio n. 64 (ad Pol. 1.1.34: Bekker 1254 b), ed. Spiazzi, R. M. (Turin & Rome, 1951), p. 19Google Scholar. There however Aquinas' explanation is less fully developed than in the Summa. It will be argued below that the absence of the term dominium itself in these passages, and again in the Aquinas passages cited in nn. 11 and 12, is not of primary importance in assessing their relevance for Fortescue's terminology.

10 Cf. De regimine principum, 11.ii.14 (Venice, 1502, sigs. gii v B–giii r A)Google Scholar. The wide currency of Giles' work is also important, not least the fact that it was translated into English by John of Trevisa: cf. Ullmann, Walter, Law and politics in the middle ages (London, 1975), p. 275 n. 1Google Scholar.

11 John, of Paris, On royal and papal power, translated with an introduction by Watt, J. A. (Toronto, 1971), p. 187, n. 19Google Scholar: In lib. pol., ed. Spiazzi, , pp. 6–7Google Scholar.

12 In lib. pol., n. 14; ed. Spiazzi, p. 7. (This section of Aquinas' commentary should properly be included in Watt's reference, cited above at n. 11.) Aquinas' further development of the point might seem to bring him, in substance though not in terminis, quite close to the notion of a regime at once regale and politicum; for he seems to envisage the possibility of a ruler's being supreme over some matters (quantum ad ea scilicet quae eius potestatem subsunt) and yet in other matters subject to the law (secundum partem sit subiectus, quantum ad ea in quibus subiicitur legi). In all this it must of course be borne in mind that Aquinas is not only commenting on an Aristotelian text but also expounding a position which Aristotle was concerned to criticize.

13 Chrimes, S. B., English constitutional ideas in the fifteenth century (Cambridge, 1936) p. 310Google Scholar–‘the dominion was regulated by the dispensation of many’; Fortescue, , Works, 1, 205 –‘regulated by the administration of many’Google Scholar.

14 Works, 1, 206 – ‘for the advantage of the many’; Chrimes, , English constitutional ideas, p. 310Google Scholar, ‘for the benefit of the many’.

15 Medievalia et Humanistica, 11, 93; and for the general argument summarized above, 93–4.

16 Cf. the final sentence of De natura legis nature, 1, xvi: Works, 1, 78; Chrimes, , De laudibus, p. 153Google Scholar.

17 Works, 1, 84.

18 The point must not be overstated, as it perhaps is by Gilbert (pp. 94–5 and n. 26). There is surely some exaggeration in the statement that a distinction between monarchy and republic ‘was quite alien to Fortescue’.

19 Works, 1, 85.

20 Ibid. pp. 85–7.

21 Ibid. pp. 87–8; reprinted by Chrimes, De laudibus, pp. 153–5.

22 The key phrase is perhaps the following: quo potens est omnis rex talis, nee ratione hujusmodi regiminis [sc. politici] dici potent impotens aut non liber, cum quod vult ipse facit, potentiore aliquo minime praepeditus.

23 Works, 1, 118. Non est regnum ut privatum patrimonium inter mares, quo nee inter feminas dividendum; politicum solum dominium est quod plures recipit rectores, sed regale nunquam.

24 Chrimes, , De laudibus, pp. 24–7Google Scholar.

25 Ibid. pp. 40–1.

26 Plummer, Charles, in his edition of The governance of England: otherwise called The difference between an absolute and a limited monarchy (Oxford, 1885), p. 169Google Scholar, notes that its early chapters ‘are little more than a translation and recasting of the author's earlier Latin treatise De laudibus legum Angliae’. While it is true that the first two chapters do correspond quite closely to De laudibus, IX–XIII, it is also the case that the Governance text is in some respects closer to that of De natura legis nature, I.xvi. For one thing, it includes, as De laudibus does not, the direct reference to Giles of Rome and a fairly close paraphrase of the passage from his De regimine principum mentioned above in n. 10.

27 Cf. n. 15 above. It is of course true that in the context of the opening of the Governance text, Fortescue has assimilated dominium politicum as defined by Giles of Rome to his own concept of dominium politicum et regale: cf. Plummer, , Governance, p. 109Google Scholar.

28 Ibid. p. 111.

29 English constitutional ideas, p. 323. It is important, however, to bear in mind the view expressed by Hinton, R. W. K. (E. H. R. LXXV, 410–17)Google Scholaras to how we should interpret and understand this ‘mtter-of-fact description’

30 Works, 1, 69–71.

31 Ibid. p. 80.

32 Ibid. p. 163. The other instance occurs in Fortescue's Declaration…upon certayn wrytinges sent oute qfScotteland ayenst the King's title to hys Realme of England. Cf. Works, 1, 533: ‘…thar beth many kyndes of lordshippes called by dyuerse names in Latin, as is, Dominium Regale, Dominium Politicum, Dominium dispoticum, and such other…’.

33 I.xviii: Works, 1, 80–1. The Aquinas reference here, it may be noted, is indeed to St Thomas, the passage occurring in Book 1 of De regimine principum.

34 Chrimes, , De laudibus, pp. 26–7Google Scholar.

35 Ibid. pp. 28–9: Plummer, , Governance, pp. 111–12Google Scholar.

36 Chrimes, , De laudibus, p. 156Google Scholar.

37 Ibid. pp. 30–1.

38 Fortescue may perhaps be using the term intentio in its Roman-law sense. Cf. e.g. Gaius, Inst. 441: intentio est ea pars formulae qua actor desiderium suum concludit.

39 Chrimes, , De laudibus, p. 158Google Scholar, is surely right in insisting that ‘this expression means the mixed dominion’ – i.e. dominium politicum et regale: cf. English constitutional ideas, pp. 318–19.

40 Cf. Ullmann, Walter, Law and politics in the middle ages, London, 1975, pp. 300–1Google Scholar: ‘…the tutorial function of the king was brought out more clearly and tidily [by Fortescue] than in any her contemporary work’.

41 For the points examined in this paragraph, cf. Chrimes, , De laudibus, pp. 30–3Google Scholar.

42 Plummer, , Governance, pp. 111–13Google Scholar; and cf. Chrimes, , De laudibus, pp. 32–3Google Scholar.

43 Classically, the phrase Fortescue twice uses in this chapter – alio pacto – is used commonly in the sense of ‘by (an)other means’ or ‘in another way’. In any case Chrimes' translation of the opening sentence of the chapter is surely mistaken: the Latin text will not sustain his phrase, ‘by their own agreement and thought’.

44 For this paragraph, cf. Chrimes, , De laudibus, pp. 34–5Google Scholar.

45 I.xxxiv; Works, 1, 96–8. Fortescue refers both to Summa theologiae, Ia (not Ia IIae, as in his reference), q. 96, art. 4, and to De regimine principum, III. iX, where Ptolemy of Lucca discusses the question (in the last paragraph of the chapter) utrum dominium homims super hominem sit naturale.

46 Works, pp. 129–30.

47 Ibid. pp. 131–4.

48 Ibid. p. 162.

49 Ibid. p. 163.

50 Ibid. p. 163.

51 Ibid. pp. 163–4.

52 Ibid. p. 180.

53 For his use of the term corpus mysticum cf. Chrimes, , De laudtbus, p. 130Google Scholar.

54 Cf. esp. De natura legis natura, II.xviii: Works, 1, 132.

55 Ibid. P. 85 (I.xviii).

56 English constitutional ideas, pp. 307–9.

57 Ibid. p. 308.

58 Law and politics in the middle ages, pp. 274–5.

59 , R. W. & Carlyle, A. J., A history of mediaeval political theory in the west (6 vols., Edinburgh & London, 1903 36, V, 402, 3Google Scholar.

60 Cf. n. 10 above.

61 Law and politics in the middle ages, p. 301.

62 I.ii: in Poole, Reginald Lane (ed.), Iohannis Wycliffe. De domimo divino libri tres (London, 1890), p. 280Google Scholar.

63 Ibid. p. 467 (IV.xvii).

64 Ibid. pp. 279–80.

65 This is of course a much more limited and specific use of the term dominium civile than that which FitzRalph adopts elsewhere: cf. esp. the extended discussion in Book IV of De pauperie Salvatoris, ed. Poole, Lane, pp. 436–76Google Scholar .

66 Ibid. pp. 280–1.

67 Ibid. p. 290 (I.viii).

68 Ibid. p. 315 (I.xxiv).

69 Ibid. pp. 368–70 (ii.xxiv).

70 De natura legis nature, I.xxvi (Works, 1,87); Chrimes, , Delegibus, pp. 34–7, 80–1,90–1Google Scholar; Plummer, , Governance, pp. 120–1Google Scholar.

71 De pauperie Salvatoris, I.viii: (Lane Poole, p. 291). None of Fortescue's formulations of the argument is verbally at all close to FitzRalph's text.

72 English constitutional ideas, p. 309.

73 Ibid. p. 9.

74 II.i: Works, 1, 167–8.

75 English constitutional ideas, pp. 301–2.

76 Interesting comparisons may be drawn in this context between Fortescue and Jean de Terre Rouge, who (in his Contra rebelles regum suorum) deployed arguments about different forms of dominium in relation to hereditary monarchy in France about half a century earlier.