Expanding the Liberty Canon: John Fortescue on the Laws and Government of England

John Fortescue (who was knighted and so is also known as Sir John Fortescue) lived from approximately from 1394  to 1480,  and so endured the Wars of the Roses, the highly destructive struggle of two families in the late Middle Ages for possession of the English crown. These wars were fictionalised and mythologised in the Shakespeare plays on Richard II, Henry IV, Henry V, Henry VI, and Richard III, so there is a perfect literary way of obtaining an introduction to the political struggles of that time, though of course that is not the same as reliable scholarly history of that period.

Fortescue was from the gentry, as the lower level of the English aristocracy are known, of southwestern England. He was therefore in a good position to follow a career as a lawyer and Member of Parliament (which in Britain refers to someone elected to the House of Commons, but not members of the House of Lords). That combination of careers is still a frequent one in Britain and I believe even more so in the United States, and is an important part of the history of the modern state and of modern politics. The relevance of Fortescue’s career to the emergence of  the modern state is enhanced when we consider that as well as those roles he was engaged in the administrative aspects of judicial-administrative inquiries, a judge, and crown minister responsible for the judiciary, that is Chancellor then the most senior office under the crown so the nearest thing to a modern Prime Minister.

He only held the latter office during the exile of Henry VI to Scotland (then a completely separate state from England), while Edward IV was the king in possession of power. In any case, we can see that Fortescue was at the centre of politics and of royal power structures. His exile with Henry VI as a result of the War of the Roses included a period in France as tutor to Henry VI’s son. On the death of Henry, Fortescue was able to return to England and made his peace with Edward, who returned confiscated properties.

There might seem to be some irony in  discussing liberty with regard to a servant of the crown at the time monarchs claimed some kind of divinely instituted power above human interference and accountability, and were busy dragging their peoples into destructive and expensive dynastic war . There are, however, various examples of liberty oriented thinkers linked with not very restrained beneficiaries of royal power. Aristotle was a tutor to Alexander the  Great, Seneca was tutor and advisor to Nero, and Marsilius of Padua was under the protection of the Emperor Ludwig. Such closeness to power may be beneficial with regard to knowledge of state power and with regard to acquiring understanding of the dangers of unlimited state of power. Later great liberty thinkers such as Montaigne and Montesquieu (to be discussed later) were both judges whose experience of interpreting and administering the law enhanced their understanding of the possible benefits and dangers of law and legal institutions for liberty.

Fortescue was approaching from a more monarchical and less republican direction than Marsilius, as his writings on law and politics are largely about the correct form of monarchy. However, the difference between the two writers and the two orientations if we address a trio of issues.

Marsilius was a dependent of the Emperor of Germany, while Fortescue held elected office. Marsilius’ understanding of law was very focused on the great codification of Roman law undertaken by the eastern Roman Emperor, Justinian, in the sixth century, while Fortescue was a defended of an English legal tradition independent of the sovereignty of princes, which Justinian made the central source of law.

The thinking of servants of the crown, even of princes themselves, in England, and across Catholic Latin (for the purposes of state, church, and scholarly business) was deeply conditioned by the republicanism of Cicero, which educated people could and did read in the original language, since Cicero was central to the Latin curriculum,  and the republicanism of Aristotle, widely known through Latin translations and commentaries.

It should be noted that England had a monarchy, a Senate (known as the House of Lords), and an assembly representing the ‘common’ (in practice gentry, local notables, and  merchants) people. Cicero’s Roman model had annual consuls in the place of a king, and an assembly of all citizens’ rather than an elected body for them, but the triad in England was that recommend by Cicero, even if existed for reasons other than enthusiasm for Roman republicanism. Other European monarchies had similar ‘estates’ which they felt obliged to consult at least on occasion, in Fortescue’s time.

A useful, if crude, generalisation about modern liberty tendencies is that they come out of two streams: a monarchist stream which emphasises that princes should act under the law and with other political institutions; a republican stream in which the ‘people’ institutes laws and governments in a spirit of respect for customary laws and institutions. These streams often become one river, but we can sometimes see them separate out and it is useful, at least some of the time, to think about the difference.

Fortescue’s work in administration, government and direct service of the royal family, refers to an aspect of the emergent modern state other than the role of law and of representative institutions.  The modern state is one of administrative growth and has been ever since the consolidation of monarchical power over barons and over dispersed agents of power during the Middle Ages.

It is hard to say when exactly it began, but the Norman Conquest of England in 1066 is as good a starting point as any, allowing as it did for the enhancement of royal state powers through eradication of the Anglo-Saxon elite and many associated institutions, proving a model of modern monarchy. The thirteenth century revival of the study and application of  Roman law, as codified under Justinian, is maybe  the best known way in which that growth of a centralised monarchical administration expressed itself. Fortescue’s crossing over between private legal, parliamentary, administrative, judicial and political roles itself expresses the way that the judicial-legal aspect of the state was often at the heart of regularising the increase of administrative machinery as well as political sovereignty.

The issue  of growing ‘Roman’ law is the appropriate point at which to bring in some consideration of Fortescue’s most influential texts: In Praise of the Laws of England and The Governance of England. In these texts, Fortescue is very  critical of what he calls ‘civil law’, which is a standard way, then and now, of referring to the Roman law tradition, containing the assumption of law made by the supreme civil political institution. His understanding of Civil Law comes directly from the texts that were produced during the Justinian directed codification, which is correct in terms of origins and the scholarly approach to civil law at that time, but maybe gives a distorting view of a legal approach which has evolved over time in a  multiplicity of codes round the world.

What Fortescue opposes to civil law is the law of England, which is now generally known as common law. Common law refers to the role of judicial precedence in English courts, where preceding judgements, and the judge’s understanding of natural justice, along with role of a jury of citizens in reaching a verdict are distinct features. Judges in the civil law tradition are comparatively concerned with the meaning of statues rather than preceding judgements, and verdicts are given by judges rather than juries.

In Fortescue’s understanding earlier English kings (going back to the time of Norman kings and Francophone Angevin kings with more land in western France than England) tried to impose civil law, but failed. This is a bit one-sided since the law of England, or common law, as Fortescue knew it, was rooted in Norman impositions and Angevin codification of the various laws of the different parts of England, but does refer to a reality of a greater role for juries and judicial precedent than in civil law systems.

The laws of England, in Fortescue’s account, are what gives content to a  political state alongside the royal state. This is a distinction that Fortescue attributes to Aquinas (so a philosopher from civil law Italy) and which has clear roots in antique republicanism. The political state refers to the laws that do not come from royal edict, or which at least were passed by parliament as laws rather than just remaining commands from the king, and the institutions which have some basis in the nation rather than the designs of the monarchy alone.

Fortescue’s historical explication of the origin of the English political state is highly mythologised, as he claims it comes from the Trojan prince Brutus. This comes from the twelfth century ‘historical’ writing of Geoffrey of Monmouth, which is largely myths about King Arthur, the Trojan origins of England, and the like. The belief that a Trojan prince founded England goes back to the antique Roman claim to be descended from refugees from the fall of Troy (as described by Homer) under Prince Aeneas (as described by Virgil). Medieval and early modern monarchies all thought of their sovereignty as modelled on Rome under Julius Caesar and Augustus, so welcomed localised versions of the mythical Trojan prince founder.

For Fortescue, the Brutus myth shows the English nation to have been a voluntary political creation with a monarchy existing by popular consent (so in a republican kind of way, though Fortescue does not say so).  The evolution of the law of England or common law over time, interrupted and transformed by political traumas, almost requires a foundational myth to give it some underlying legitimacy, given there was never a moment of collective political will to adopt it. It can also be argued that the non-political, relatively non state centric evolution  of law is good for liberty, a liberty defined in a rather indirect tacit way from the movement of parliamentary laws, verdicts of juries, and judicial interpretations.

Fortescue’s portrait of the advantages of the law of England over civil law leads him to a highly coloured picture of France as containing a common people on the verge of destruction from poverty and lack of self-respect as a consequence of the unrestrained power of the king in a civil law system. Some of his negative portrayals have some truth in them, but France did not collapse from destitution and demoralisation as Fortescue’s description would lead you to expect.

While French kings were less influenced by the Estates General than English kings were influenced by parliament, aristocratic judges in local courts known as ‘parlements’ exercised the right to resist and protest with regard to royal edicts they did not like. France was rather less centralised and uniform than England in its administration and laws right up to the  French Revolution, even under monarchs who claimed absolute powers ordained by God and did their best to erode local privileges and liberties.

The projection  of bad things onto France, presumably at least in part so as to condemn royal abuse of power without appearing to criticise the English crown, extends to Fortescue’s condemnation  of judicial torture, though even in his own account it can be seen that extreme torture was used in England to extract false confessions and accusations as part of a judicial process. Anyway, certainly Fortescue’s condemnation of such practices is very admirable and ahead of his time, as it was then widely assumed that torture was a good way of getting at the truth, for the purpose of a trial, and was not to be considered disturbing. Fortescue was disturbed and did believe that it was against humanity to use torture, as well as being ineffective from the point of view of determining guilt in a reliable manner.  Fortescue greatly helped further the cause of liberty in this and other ways.

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