CHAPTER FOUR John Fortescue

Few scenes of Shakespeare are more heartrending than the one set on the fatal field at Tewkesbury in 1471 in Henry VI Part 3, where Margaret of Anjou, queen of Henry VI, cradles the corpse of her son, murdered before her eyes by Edward IV and his two brothers, and shrieks out her despairing lament,

O Ned, sweet Ned! speak to thy mother, boy! Canst thou not speak? O traitors! murderers! They that stabb'd Caesar shed no blood at all.

Sweet Ned was Edward, Prince of Wales, eldest son of King Henry VI of the House of Lancaster, aged seventeen at the time of his death. Prince Ed­ward was indeed a high-spirited youth, held in genuine respect and affec­tion by the doughty old judge, Sir John Fortescue, who attended him for a decade in exile and who instructed him and commended to him the laws of England in De Laudibus Legum Angliae against that day which would never be when he should be king.

The Prince is prominent among the dramatis personae of Shakespeare's trilogy. Yet nowhere in Henry VI is there mention, directly or by implica­tion, of Sir John Fortescue, and nowhere is there an appearance by that eminent chief justice and servant of the crown—though Fortescue himself was at Tewkesbury, and was taken prisoner when the House of Lancaster finally fell. Fortescue had borne arms before for Henry VI, most notably at Towton Field on that wintry Palm Sunday in 1461 when Henry was driven from his throne and from England. During Henry's sojourn in Scotland, Fortescue had been, at least by his own account, the King's closest advi­sor, promoted to Lord Chancellor by the exiled monarch, a mark of favor and appreciation though not of power or function.

Though Shakespeare chose to ignore Sir John Fortescue, other English­men of the era did not. Between the first publication of Fortescue's treatise in 1546 and John Selden's edition of the work (first issued in 1616, the year of Shakespeare's death), the book appeared nine times, at least once in ev­ery decade. By sixteenth century standards, the book was a best-seller. In fact, Fortescue became something of a cult figure in Elizabethan England. The title applied to the book by its translator Robert Mulcaster, A Learned Commendation of the Politique Laws of England, expressed the Englishness of Fortescue's work, and Elizabeth's England, beset by foreign foes and xe­nophobic in the extreme, clasped Fortescue to its bosom. When Selden in 1616 gave the book its enduring title, De Laudibus Legum Angliae, what was gained in translation, the phrase In Praise, trumpeted even more strongly the patriotism of the nation. And for Selden's generation, fearful of a grow­ing “Stuart Despotism,” Fortescue's emphasis on Parliament, on a mixed- monarchical constitution, and on the jury as the guardian of the English­man's liberty seemed a prescription against the infection of tyranny.² In 1614, Sir Walter Raleigh termed De Laudibus “that notable bulwark of our laws”—as a prisoner in the Tower, enduring a sentence of death that would be carried out four years later, Raleigh can be said to have spoken from the heart.³ Sir Edward Coke directed his reader to Fortescue for an explanation of why only English common law provided trial by jury. Fortescue's words, said Coke, were “worthy to be written in letters of gold for the weight and worthiness thereof, I will not abridge any part of the same, but refer the learned reader to the fountain itself?’⁴ In the great parliamentary debates of the 1620's, Coke and his fellow opponents of the pretensions of Stuart monarchy made many trips to that fountain.

John Fortescue is a far less shadowy figure than many of his fifteenth century contemporaries. The high offices he held (he was Chief Justice of King's Bench for nineteen years, from 1442 to 1461), as well as his hard ser­vice in the cause of the House of Lancaster, raised him far above anonymity. Those anecdotal didactic notes of cases in the King's Bench and Common Pleas, the Year Books, pay considerable attention to Fortescue's learned comments and memorable quips in Westminster Hall, and the flavor of the man and his wit is caught in them. The official records, particularly of letters patent issued in Chancery, enables us to reconstruct his busy judicial career as a commissioner for trials in the country and on special commis­sions, and there are occasional glimpses of him in the King's Council in Star Chamber.⁵ Those two great mines of information for contemporary life and events, the Paston Letters and the Stonor Correspondence, allude to him.⁶ And the public records and private muniments so assiduously sifted by his­torians of the Wars of the Roses provide a great deal of information about the political activities of such a notable participant in the great affairs cen­tered on that civil war of dynastic factions for the crown of England.

The life of Fortescue by his Victorian descendant, Thomas Fortescue, Lord Clermont, provides the essential detail of Fortescue's life.⁷ However, some salient features of Sir John Fortescue's life have become clear only with subsequent research. First of all, S. B. Chrimes argues convincingly that Fortescue was born about 1385, not between 1394 and 1396.⁸ There is no evidence that Fortescue was ever a student at Oxford.⁹ Fortescue, along with the royal party in its early exile in Edinburgh, was housed in the Do­minican house there, Blackfriars—not at Greyfriars, the Franciscan house. Fortescue was also married twice; Lord Clermont was unaware of his first marriage in 1423 to a Devonshire heiress, who died in 1426 without leaving issue.

More significantly, Chrimes's research has established how active For­tescue was as a justice of the peace and as a special commissioner for trials criminal and civil, both before and after he became Chief Justice. This ex­perience is reflected in Fortescue's book. He wrote of English legal institu- tions—especially trial by jury—from a practical perspective based upon an inimitable experience of that procedure. So it was, too, with Parliament. As Chief Justice, Fortescue attended the House of Lords as an assistant learned in the laws. Most significantly, recent research on Lancastrian parliaments has brought to light that Fortescue between 1421 and 1436 was elected eight times to the House of Commons (seven times for boroughs in his native Devon, for the eighth and last time as MP for Wiltshire). The first great political-theoretician of Parliament, one of its greatest constitutional expo­nents, was a practiced parliamentarian.

Of course, Fortescue's own writings tell us most about him as jurist, political philosopher, statesman, and politician. It is not to detract from Fortescue's reputation as a learned juristic commentator and political theo­rist or from the value of his considerable corpus as a scholarly contribution to emphasize that his three major works, including De Laudibus, as well as a number of his shorter pieces, were written in the cause of the House of Lancaster. Moreover, the three major pieces were written either during the Lancastrian exile after Towton or shortly after the short-lived restoration of Henry VI in October 1470. Conventional wisdom has assigned to the years 1461-1464, when Fortescue was in Edinburgh with Queen Margaret and Edward, Prince of Wales, the composition ofDe Natura Legis Naturae. Chrimes argued for a later date, sometime during the exile of Margaret, Edward, and Fortescue at the castle of Koeur in St-Mihiel in the Duchy of Bar.¹⁰ The work was by far the largest Fortescue undertook, more than twice as long as De Laudibus.

The shortest of Fortescue’s three principal works was De Dominio Regali et Politico, better known by the subtitle given it by its modern editor, The Governance of England.¹¹ Its date and provenance are the most disputed of the three longer works. Written around 1470, the time of the restoration of Henry VI, it was revised about a decade later, after Henry VTs final deposi­tion and his murder in the Tower by the Yorkists. And it was addressed to Edward IV. The Lancastrian cause lost and his young pupil slain, Fortescue had accepted the Yorkist regime and penned a repudiation of his former propaganda efforts on behalf of the Lancastrians. In October 1471 Fortes­cue was pardoned by Edward IV and admitted to the new king’s Council. Though written to advise Henry VI, The Governance was an equally sound blueprint for institutional and constitutional restructuring by a usurper, particularly one who proved to be an institutional reformer. The book was an extended argument for a constitutional polity as against a despotic sys­tem, picking up and developing the contrast between France’s merely regal regime (dominion regale) and England’s mixed consensual and monarchical polity (dominion politicum et regale) which Fortescue had first adumbrated in Chapters 9 and Chapters 34-36 of De Laudibus Legum Angliae.

The Governance had a very practical side. It dealt with royal revenues, beginning with the point that French monarchical despotism was largely the result of the poverty of the French king, which in turn made him yet more tyrannical in his search for adequate revenue. The English king was warned to consider carefully what charges were likely to be placed on his revenues, and Fortescue suggested to him sources from which it might be drawn.

De Laudibus Legum Angliae resembled both the other principal works and it was in intention no less a partisan political effort written on behalf of the House of Lancaster. Implicit in its encomium of English law and Eng­lish political practice was the argument that Lancastrian government—be­ginning at the turn of the fourteenth century, with Henry IV, first of the dynasty—had assured the virtues of mixed consensual and monarchical pol­ity and secured the liberties that were the objects of that polity. Fortescue was at considerable pains to establish that English law was consonant with the law of nature (Chapter 16), thus reinforcing the proposition developed earlier in De NaturaLegis Naturae, a work to which he explicitly referred (at the end of Chapter 9, for example). The Governance of England clearly owed to De Laudibus its central idea (the idea of the dominion politicum et regale), but went beyond it in its attention to detailed reform. Both books were exhortations to the Lancastrian king to maintain the English polity which gave him, much more than the law of nature could provide, his legitimacy.

The most striking feature of De Laudibus is also its most distinguish­ing characteristic: it was a didactic work. It was meant to instruct a young prince in the responsibilities which he would undertake when he succeeded to his throne. Fortescue's choice of the tried-and-true rhetorical device of the dialogue, which had a long and honorable history behind it in English letters, gave weight to this didacticism, for a dialogue was usually between a pupil asking questions and a teacher answering them. We should not take the dialogue so literally as to suppose that Fortescue and Prince Edward sat down to discuss the subject. Yet Fortescue was in regular and prolonged contact with the young prince and was undoubtedly one of those in the exile-court to whom the prince's education in statecraft was confided. What is certain is that Fortescue did not write De Laudibus as a work for general distribution. It is far too rudimentary for a scholarly treatise directed to a learned audience. It lacks the ponderousness of Fortescue’s syntax and rhet­oric in De Natura Legis Naturae which, while clearly a work of propaganda, was meant for an educated and mature readership. The frame provided by Fortescue’s Introduction, where an aged Lord Chancellor calls a princeling out of the tilt-yard to lecture him on the laws of his kingdom, allowing for its conventional third-person detachment and its scene-setting for a feigned dialogue, can be taken at face value.

The most recent effort to date with exactness the writing of De Lau­dibus, if Professor Chrimes is correct, lends weight to the conclusion that Fortescue’s purpose really was the instruction of Prince Edward. Chrimes makes a strong argument that the book was composed no earlier than 1470 and quite possibly between October 1470 and April 1471.¹⁴ The tone of De Laudibus is one of confidence, expectation, optimism. Until the restoration of Henry VI in October 1470 there were scant grounds for such a positive note. If the work was written in exile—and it was—by an octogenarian who had suffered loss of office, lands, goods and who had even contrib­uted from his own small means to subsidize the cause for which he had given all, it was written apparently at the dawn of a new day for the House of Lancaster. In the pages of this book, Fortescue sounds convinced that Prince Edward would one day be king. In those six months after Octo­ber 1470 when Henry regained his throne, there was every likelihood that Edward would ultimately succeed to the throne by due hereditary right. Moreover, for reasons that are unclear, Queen Margaret, Prince Edward, and the exile-court, Fortescue with it, remained at Koeur during that hope­ful six months. Fortescue had ample time and above all else a motive to see to the education in statecraft of a prince who would by every reasonable expectation some day be a king.

Fortescue’s instructional task was a formidable one. Prince Edward had been carried into exile, away from England, when he was less than eight years old, and he knew nothing of the country. He had lived for almost seven years, the critical years of adolescence, in a French ambience, under trying conditions of uncertainty as to the future, surrounded by consider­able intrigue and many alarums. His education as a prince was, perforce, in the martial arts; if he were ever to wear a crown, he would have to fight for it. The picture of the young prince breaking lances with his companions- in-arms, as it is given in the Introduction, rings true. At the same time, however, on both sides of his lineage, Prince Edward had scholarly blood. His great-uncle, Humphrey, Duke of Gloucester, had been a notable pa­tron of learning and letters, his name commemorated in the earliest uni­versity library at Oxford which he had endowed and to which he had given his library. Prince Edward's maternal grandfather and benefactor at Koeur, Duke Rene of Anjou, was not only a patron of arts and letters, but an artist and writer in his own right, who richly deserved the appellation (unusual for his age) of “the Good.” Even if the exile-court at Koeur maintained an atmosphere of learning, it would still demand considerable effort to turn the young prince's attention from the lists to the library. It was that which Fortescue had to effect.

Fortescue sought to persuade Prince Edward of the excellence of Eng­lish law and English institutions and to convince him that as king he should maintain them. De Laudibus was an extended initiatory essay on kingship that was only incidentally a legal study—a point little appreciated in later ages when Fortescue's work was hailed for what it (and it alone) said about English legal institutions in the later fifteenth century. What distinguished De Laudibus from the myriad treatises on kingship before and after it—from St. Augustine through John of Salisbury, Aquinas, Machiavelli, Bodin, Botero, and James VI & I—was its focus on a particular realm, that of the English king. The treatment of the origins of kingdoms in Chapters 11-13 provided a context and general background for the discussion of English monarchy, and the comparison throughout between the kingdoms of Eng­land and of France afforded the opportunity to investigate and illuminate the nature of English kingship. English kingship was the subject; French kingship was the foil. Fortescue observed in Chapter 19: “Comparationes vero, Princeps, ut te aliquando dixisse recolo, odiose reputantuC [Comparisons truly are, Prince, as I remember you once said, reputed odious].¹⁵ Though he would conclude this observation with an elegant demurrer to making odious comparisons, clearly Fortescue had little interest in French kingship other than to use it as a worst-case alternative to English kingship.

The glory of English kingship was that it was both regal and political, kingly and consensual, a mixed polity in which the king could not rule alone, could not legislate solely, could not levy taxes by fiat, and could not render justice in person. Fortescue began with the fact of that mixed polity. He located its origins in a particular historical experience, the establishment of kingship by agreement and consensus (Chapter 13) — and not by force, the origin of kingdoms ruled despotically (Chapter 12). The politicum, the consensual imperative of English polity, was therefore present from the be­ginning. But the continued vitality of the politicum in the polity depended upon the existence of a political nation represented by the three-hundred plus wise and prudent men who in Parliament made law with the king (Chapter 18). That political nation, in turn, was the particular product of the social and economic conditions of rural England, graced by nature with abundant fertility, which supported a numerous and uniformly distributed middling-sort of prosperous, able, observant, and leisured men who were incorruptible, honorable, knowledgeable, and politically involved (Chapter 29). Fortescue’s description of this political nation in reference to jurors was equally appropriate to the same men as parliamentary electors and parlia­mentary members.

If English polity was clearly in accord with historical and even environ­mental realities, Fortescue could not rest satisfied with such an explana­tion. Jurist and theorist, mediaeval man that he was, he felt compelled to summon authority to his aid. He found it, as he supposed, in St. Thomas Aquinas’s DeRegimine Principum: “St. Thomas... wishes, that a kingdom could be so instituted, as that the king might not be at liberty to tyrannize over his people; which only comes to pass in the present case; that is, when the sovereign power is restrained by political laws.”¹⁶

Whether or not Aquinas will in fact serve as authority for the notion of dominion politicum et regale has been hotly contested by students of Fortes­cue for a century. Professor Chrimes, having once taken the position that Aquinas’s description of the imperial regime was so far removed in time and circumstance from the realities of fifteenth-century England that For­tescue made Aquinas’s authority chimerical, later concluded that Fortescue had at least found his inspiration for the notion in Aquinas’s “regimen regale et politicum.” We cannot dispute Chrimes’s conclusion:

When all is said, he [Fortescue] did manage to make up a doctrine that had its roots on one side in abstract political theory, and roots on the other side in the concrete facts of political practice. He contrived to link up what he wanted to say about the government of England with the sanction of high theory.¹⁷

Fortescue’s respect for authority was largely manifested in the first four­teen chapters of De Laudibus. This served his purpose to discuss kingship generally before exploring in depth the particular nature of the English realm. Moreover, this was the appropriate place for him to establish his bona fides as a thoroughly orthodox jurisprudent before discussing that peculiar institution, the common law of England. He urged the Prince to study the laws since that was as much a foundation for his discharge of duty to his people as was military practice requisite for protecting them (Chapter ι). He then went on to accept the distinction between divine and human or positive laws but pointed out that all positive laws have divine authority behind them, that through the implementation of positive law the great­est good of human life is assured, that the ruler can establish justice—his responsibility—only by knowing the law, and that the ruler can himself be a just man only by knowledge of the law (Chapters 2-5). The future ruler should learn the law when he is young and best able to do so, that he can learn all the law requisite in a year, and that he can safely confine his study to the laws of England, which are superior to Roman or civil law (Chap­ters 6-8). These preliminaries set the stage for his discussion of polity and the development of England's dominion politicum et regale (Chapters 9-13). In Chapter 14, he introduced a critical, pragmatic question, posed by the Prince: whether the common law of England is as effectual for that one kingdom as is the civil law of the Holy Roman Empire which was accepted as sufficient for the government of the entire world. It was on this question, rhetorically put, that the entire treatment of law in De Laudibus turned. As his treatment of kingship demonstrates, Fortescue accepted that, for good or for evil, kingship manifested itself principally in the promulgation and implementation of laws.

The next four Chapters (15-18) were almost as remarkable for what they did not say as for what they did. The three varieties of positive law (the law of nature, custom, and statute) posited in Chapter 15 were given a conven­tional and even a hackneyed discussion. While he quickly dispatched the law of nature (Chapter 16), Fortescue dilated at length on custom in Chap­ter 17 and on statute law in Chapter 18. But there was not a word about the statutory origins of the Roman or civil law; it was damned implicitly in a backhanded way by the emphatic praise that Fortescue heaped on the way in which the English promulgated statutes by the king in Parliament, rather than by the will of the king alone. The civil law received its explicit condem­nation in Chapters 19-32, when Fortescue contrasted English criminal pro­cedure of proof by jury with the civil law procedure of proof by witnesses and, in France, the use of torture to obtain the moral certitude afforded by the accused's confession. After an excursus into arbitrary rule, dominion regale, Fortescue contrasted English common-law rules on succession and descent, legitimization, and wardship with what the civil law held on these substantive points, concluding with a note on the commendable rigor of English law against theft and an equally commendable preference for the freedom of a serf once freed, in Chapters 38-46. On no point in these two lengthy comparisons of English common law and civil law did civil law win a skirmish.

At first glance, the topics which Fortescue chose to contrast between the two legal systems appear eccentric. Why such emphasis upon proof by jury? Perhaps the explanation is already provided in the point made above that the jury was the procedural manifestation of the political nation which provided the politicum, the consensual element, in the English dominion politicum et regale. This is part of the explanation, but probably not the whole of it. The fifteenth century witnessed the rapid expansion in juridi­cal activity by non-common law tribunals, which proceeded by bill rather than indictment or writ, and provided for proof by witnesses’ testimony rather than by a jury’s sworn findings, with the tribunals’ benches finding the facts. These were the tribunals which would later be called English-bill courts, notably the King’s Council (usually sitting in the Star Chamber), the Duchy Chamber of Lancaster, and, above all, the Lord Chancellor in a jurisdiction that a century later would be termed equity.¹⁸ So much arrant nonsense has been written about the so-called rivalry between such courts and the old common-law courts, especially in the seventeenth century, that a historian of one of them (Star Chamber) is very reluctant to give any credence to the notion that there was inbred hostility between the jurisdic­tions. Yet, from the perspective of the quondam Chief Justice, the English state’s increasing recourse to such tribunals doubtless raised the threat of insidiously encouraging a method of proof which he only reluctantly ad­mitted existed in England (Chapter 32) and which might lead to pernicious results.

On this reading, the excursus on arbitrary rule, Chapters 34-36, which otherwise seems out of place immediately following the long disquisition on the jury, makes sense of Fortescue’s motivation in giving such atten­tion to the jury. The excursus was introduced by the Prince’s astonishment (Chapter 33) that his ancestors should have attempted to repudiate the “laws of the land”—not least, perhaps, to subvert the jury. The remainder of the excursus was devoted to arguing that the powers of the purely regale King of France and the politicum et regale King of England were equal, that arbitrary rule did not increase power but merely served to produce those palpable evils which beset France, and that the English king, if he held to the dominion politicum et regale, was in fact more secure than a merely regale king.

The substantive law topics which Fortescue contrasted in Chapters 38-46 were not eccentric either. Legitimization and female succession were the major topics. In discussing the latter, the Lancastrian partisan shone through clearly. If the civil law’s preference for female succession was valid the House of Lancaster would lose the bulwark of its legitimate title against the claim of the House of York, a claim which depended upon descent through the female line. Fortescue had argued this before in De Natura Le­gis Naturae, and it was natural that he should reemphasize the point again in De Laudibus.

We can reasonably ask whether Fortescue’s distaste for civil law had any substantial basis or was merely rampant prejudice fed by chauvinism and xenophobia? He appears to have been a close observer and given to considerable curiosity about law and politics. His seven years’ sojourn on the Continent afforded him opportunity to study the French legal system in operation, and it is difficult to believe that he would choose to ignore the opportunity. What he saw could not have pleased him. The reception of the civil law in juridical practice, particularly the procedural law, was far advanced by the later decades of the fifteenth century throughout the do­mains of the King of France and the Imperial territories immediately to the east, including those of Fortescue’s host, Rene, Duke of Bar and Lorraine. This new system was displacing the older customary laws. Even where cus­tomary law maintained its substantive vitality, the reception of civil law introduced new rigor into the procedures of the courts. Behind reception was the unquenchable thirst of the Valois kings for more revenue and more centralized control. The instrument for implementing the king’s wishes was a bureaucracy that was increasingly recruited from lawyers trained in the law faculties of the universities, trained in “both laws,” that is, the canon law and the civil law. These jurists were impatient of local peculiarities and customs, and for them nothing that was not the civil law was worthy to be called law.

In Chapters 47-51 of De Laudibus, Fortescue asserted the excellence of the recruiting, training, and advancement of the common lawyers in Eng­land, in their Inns of Court. He would have had the conventional common lawyer’s suspicion of the logic-chopping Schoolmen of the universities be­fore he went upon his Continental travels. What he had seen in the French courts confirmed him in his suspicions and persuaded him that university- trained lawyers constituted a threat to the established polity and time-hon­ored laws indigenous to his English homeland. Much of Fortescue’s most powerful argument in praise of the laws of England is to be found in these luminous chapters on the legal education and legal profession of English common lawyers. He had seen the enemy, and in these chapters he took up sword against him. Indeed, the threat was apparently so real in Fortescue’s eyes that he could extol as virtues the vices of dilatoriness that as Chief Jus­tice he had been called upon to combat (Chapters 52-53). He ended on the

triumphant note, which married the excellence of English law to the glory of the English polity, that whatever shortcomings English law might have, these failings could be remedied by the king in Parliament, in the dominion politicum et regale that was England (Chapter 53).

Sir John Fortescue and his eminent contemporary and fellow judge, Sir Thomas Littleton, have been called the two earliest Renaissance jurists of English common law.¹⁹ “Renaissance” is too imprecise a term when ap­plied to English law and lawyers of the era to be useful for much more than decoration; it is best left to literati in English departments! Still convention dictates analysis. It is hard to see how Littleton, author of The Tenures, that thoroughly mediaeval treatise on the English law of real property, can be called a Renaissance man. The work itself, as its title suggests, was back­ward-looking in an age when the key to mastering property law now lay in understanding estates rather than tenures. And it has none of the ebullience and self-assuredness of tone, none of the self-satisfaction, which character­ized Renaissance letters.

Fortescue and De Laudibus are another matter. Fortescue was a genu­inely learned man, engaged with a wide range of scholarly subjects, includ­ing religion. The citations in De Laudibus indicate a familiarity with the entire corpus of scholarship available to a fifteenth-century writer-sources ranging from antiquity through the Church Fathers and mediaeval Scholas­ticism to Renaissance letters — and, significantly, the Bible (the most com­monly cited source in the work). The Biblicism of the fifteenth century owed a great deal to the Renaissance ideal of a return to the origins of knowledge. Moreover, the didactic, even pedagogic, objective of De Lau­dibus exudes the Renaissance spirit and reflects the Renaissance belief in education. It might stretch the evidence, but a close reading ofDe Laudibus leaves the definite impression that its author was imbued with the Platonic ideal that swept through Italian humanism in the decades when Fortescue was writing: the striving for perfection, the sensitivity to beauty as a con­stituent of good.

Perhaps the best proof of Fortescue’s membership in the Renaissance pantheon is the fact that Tudor commentators on law and politics found De Laudibus a thoroughly modern model for their own endeavors. Christo­pher St. Germain’s Dialogue between a Doctor and a Student (c. 1530), weigh­ing the various merits of the civil law and the common law through the mouths of a doctor of the former and a barrister of the latter, bears in both form and substance an uncanny resemblance to De Laudibus. St. Germain cited Fortescue’s work, and it clearly inspired and influenced his own book. Sir Thomas Smith's De Republica Anglorum (1583) bears certain marks of Fortescue's influence, especially in its treatment of English kingship and its concern with comparative politics.

Where Fortescue and Littleton join hands in innovation is in the em­phatic new departure their works brought to English legal literature. Not since the formative age of the common law and its literature—in the twelfth and thirteenth centuries, when Glanvill and Bracton gave frame to the law's principles—had the common law produced a literature that was much more than practice books, formularies, and instructional tools. With De Laudibus and The Tenures the common law began a jurisprudential flower­ing that gathered force in the sixteenth century and reached its climax in the seventeenth with the works of Coke, Selden, and Hale. Littleton's role is clear, when one reflects that The Tenures became Coke's First Institutes, “Coke upon Littleton”—the very Bible of the common law of real property, the most considerable and most complex branch of the common law.

Fortescue rendered a further service. The brevity, didacticism, and chau­vinism ofDe Laudibus gave it enormous popularity in the sixteenth century. As it was originally meant to instruct a Lancastrian prince so it could also teach less exalted Tudor Englishmen. It possessed the appeal of a good text­book: directness, clarity, vigor, wit, and a touch of style. Its small size made it eminently printable and printing made it cheap. Above all, it preached to the converted. Its Englishness and praise of Englishness resonated the patriotism and xenophobia of a nation that proclaimed itself liberated from the yoke of Rome's religion and armed against its Catholic foes. Fortescue was easily Protestantized and Anglicanized. All of his strictures against the tyranny of the civil law system and the degrading despotism of European kingship raised on mere regality were given double force in the age of the Reformation and the beginnings of Continental absolutism. In Elizabethan England, only editions of the Bible outsold editions of Littleton's Tenures, and only Foxeh Book of Martyrs had more lasting political influence than De Laudibus.²⁰ Consequently, like Foxe, Fortescue was destined to play a major role in the great political confrontation within English politics and society which marked the first half of the seventeenth century, destroyed a king in 1649, and continued to reverberate until the end of the century.

An English constitutional historian has remarked, of the debates that framed the English Civil War, that “Everyone spoke the same language.”²¹ Indeed, the rhetoric of King Charles I and his supporters was largely indis­tinguishable from that of their antagonists in Parliament. To great extent, De Laudibus had taught them all that same language. In June 1642, a bare two months before the resort to arms, Charles I pronounced his last formal words in the continuing verbal exchange that had gone on between King and Parliament since 1621. His reply to the Parliament’s Nineteen Proposi­tions, written by his advisers Viscount Falkland and John Culpepper, was an echo of De Laudibus:

There being three kinds of government among men, absolute monarchy, aris­tocracy and democracy, and all these having their particular conveniences and inconveniences, the experience and wisdom of your ancestors hath so moulded this out of a mixture of these as to give to this kingdom (as far as human pru­dence can provide) the conveniences of all three, without the inconveniences of anyone, as long as the balance hangs even between the three estates, and they run jointly on in their proper channel.²²

Here was a classic statement of mixed monarchy, of the dominion politicum et regale. Falkland and Culpepper were as stalwart and devoted disciples of Fortescue as their adversaries, John Selden and John Pym, on the other side of the great divide between King and Parliament. The English Revolutions of the seventeenth century were not fought between contending systems. All agreed on the proposition that England’s polity was a mixed monarchy and that it was the best polity vouchsafed any people. The battle was over the mix.

The mix was not settled constitutionally until James II was expelled from his throne in 1688 and his daughter and her husband were confirmed in their enjoyment of it by a convention. It was not settled practically until the new joint-monarchs reached a routine working relationship with Par­liament, and it was not settled theoretically until John Locke, in the early 1690’s, published his Two Treatises on Government. Though written before the Glorious Revolution of 1688, the Two Treatises were relied on to explain and justify the final act of revolutionary confrontation. What is remark­able about the Two Treatises is how much Locke owed to Sir John Fortes­cue. Chapter 14 of De Laudibus enunciated a social contract theory of the origins of the English polity. A social contract, albeit more figurative than literal, was the foundation of Locke’s political theory. That is not to say that Locke’s social contract theory owed nothing to Hobbes’s Leviathan of a generation before. But Hobbes’s social contract was a compact of servitude, while Fortescue’s was a compact of liberty; it is not hard to determine to which prior theorist Locke owed most. Even more striking is the fact that Fortescue’s political nation is also Locke’s. Locke was concerned to justify only one kind of revolution, that of men of property against a tyrant. Men of property alone possessed the right to declare the social contract dissolved by the tyrant's breach of it. That right had its corollary in the exclusive right of men of property to participate in political life. Through such participa­tion, tyranny (and so revolution) could be avoided. The key to understand­ing why only men of property formed the political nation, in Locke's view, was their singular leisure, their dispensation from the drudgery of labor by virtue of their economic ability to hire others to do it, and consequently the time which they had free to reflect upon and act in politics. Fortescue's mid­dling-sort of men, jurors and electors, in Chapter 29, were indistinguish­able from Locke's men of property—or is it the other way around?

Perhaps the great glory of Fortescue is that in De Laudibus he prefigured so much of the political theory of the next two centuries. Besides Locke's debt to him, all those English polemicists, most of them in the Stuart camp, who were so fond of the anatomical and physiological metaphors for the body-politic, must acknowledge their obligation to Chapter 13, with its metaphor of the king as the head of the body politic and the laws as the sinews that bind the polity together. What a marvelous irony that perhaps two of Fortescue's disciples must be numbered among those downtrodden French, groaning under the yoke of regale, tyranny! For Jean Bodin, in his treatise Les Six Livres de la Republique (1576), also advanced an explanation for the particularism of a polity based upon its social and economic peculiar­ity. Bodin was, however, much less thoroughgoing in his adherence to the notion than was Fortescue, for in comparing democratic, aristocratic, and monarchical government, Bodin clearly could not rid himself of the French vice of believing willy-nilly in pure monarchy. More to old Sir John's lik­ing would have been the discipleship of Montesquieu. In the Spirit of the Laws (1748), with a high degree of refinement, Montesquieu would attri­bute political and constitutional particularism to the environment of the polity in question. Even better, Montesquieu would agree with Fortescue's explanation for the flourishing state of consensual governance in England. Montesquieu not only admired English institutions—he urged their repli­cation in the France of his day, a nation repressed by the last and heaviest deadweight of absolutism. And in Montesquieu's idea of checks and bal­ances between executive and legislative (regardless of how far he misread the actual political functioning of the British constitution in the mid-eigh­teenth century) one hears more than only an echo of Fortescue's dominion politicum et regale. Such a disciple Fortescue would have appreciated. With his fondness for Scripture, he might have said of that one Frenchman as it was said of Saul of Tarsus, “And straightway there fell from his eyes as it were scales, and he received his sight” (Acts 9:18).