'The Governance of England', Why one king reigns 'royally', and another 'politically'
Sir John Fortescue, followed by a comment from Alan Cromartie
Sir John Fortescue [c.1395-1477] wrote:
EXTRACT ONE:
THE GOVERNANCE OF ENGLAND
Chapter 1
The difference between 'royal dominion' and 'political and royal dominion'
There are two kinds of kingdoms, one of which is a lordship called in Latin dominium regale, and the other is called dominium politicum et regale. And they differ in that the first king may rule his people by such laws as he makes himself and therefore he may set upon them taxes and other impositions, such as he wills himself, without their assent. The second king may not rule his people by other laws than such as they assent to and therefore he may set upon them no impositions without their own assent.
This diversity is well taught by Saint Thomas, in his book which he wrote to the king of Cyprus On Princely Government. But yet it is more clearly treated in a book called Compendium of Moral Philosophy, and somewhat also by Giles [1243-1316] in his book On Princely Government. The children of Israel, as Saint Thomas says, after God had chosen them as 'his own people and holy realm', were ruled by Him under Judges 'royally and politically', until the time that they desired to have a king such as all the gentiles, which we call pagans, then had, but they had no king but rather a man who reigned upon them 'only royally'. With which desire God was greatly offended, as well for their folly, as for their unkindness since they had a king, which was God, who reigned upon them politically and royally, and yet they would change him for a king, a man who would reign upon them only royally.
And therefore God, threatening them, made them afraid by thunders and other terrifying things from the heavens. And when they would not thereby leave their foolish desire, he charged the prophet Samuel to declare to them the law of such a king as they asked; who, among other things, said that he would take from them their land and give it to his servants, and set their children in his carts, and do to them many such other harmful things, as appears in the eighth chapter of the first Book of Kings.7 Whereas before that time, while they were ruled by God royally and politically under Judges, it was not lawful for any man to take from them any of their goods, or to injure their children who had not offended.
Whereby it may appear that in those days 'political and royal government' was distinguished 'from only royal government' and that it was better for the people to be ruled politically and royally, than to be ruled only royally. Saint Thomas also in his said book praises 'political and royal dominion', because the prince who reigns by such lordship may not freely fall into tyranny, as may the prince who reigns 'only royally’. And yet they are both equal in estate and in power, as may easily be shown and proved by infallible reason.
Chapter 2
Why one king reigns 'royally', and another 'politically and royally'
Some men may perhaps wonder why one realm is a lordship only royal, and the prince thereof rules it by his law called 'royal law', and another kingdom is a lordship royal and political, and the prince thereof rules it by a law called 'political and royal law’, since these two princes are of equal estate. This doubt may be answered in this way.
The first institution of these two realms upon the incorporation of them is the cause of this diversity. When Nimrod, by might for his own glory, made and incorporated the first realm and subdued it to himself by tyranny, he would not have it governed by any other rule or law, but by his own will, by which and for the accomplishment thereof he made it. And therefore though he had thus made himself a realm, holy scripture disdained to call him a king, 'since rex is so called from regendo or ruling', which thing he did not, but oppressed the people by force, and therefore he was a tyrant and called 'the first of the tyrants'. But holy writ calls him 'a mighty hunter before the Lord'. For as the hunter takes the wild beast in order to slay and eat him, so Nimrod subdued to him the people by force, in order to have their service and their goods, exercising over them the lordship that is called 'only royal dominion'. After him Belus who was first called a king, after him his son Ninus, and after him other pagans, who by example of Nimrod made themselves realms, would not have them ruled by other laws than by their own wills. Which laws are very good under good princes, and their kingdoms then most resemble the kingdom of God, who reigns upon man ruling him by His own will. Wherefore many Christian princes use the same law, and therefore it is that the laws say, 'what pleased the prince has the force of law'. And thus I suppose 'only royal dominion' first began in realms.
But afterwards, when mankind was more civilised, and better disposed to virtue, [there arose] great communities, as was the fellowship that came in to this land with Brutus, willing to be united and made a body politic called a realm, having a head to govern it - since, following the saying of the Philosopher, every community united of many parts must needs have a head - then they chose the same Brutus to be their head and king. And they and he upon this incorporation, institution, and uniting of themselves into a realm, ordained the same realm to be ruled and governed by such laws as they would all assent to, which law is therefore called 'political', and, because it is administered by a king, it is called 'royal'.
'Policia is so called from poles, that is many, and ycos, that is, wisdom; by which political government is called government administered by the wisdom and counsel of many’. The king of the Scots reigns upon his people by this law, that is to say, 'by political and royal government’. And, as Diodorus Siculus says in his book Ancient Histories, the realm of Egypt is ruled by the same law, and therefore the king thereof does not change his laws without the assent of his people. And, as he says, the kingdom of Saba in Arabia Felix is ruled in like form, and the land of Libya and also the majority of all the realms of Africa. Which manner of rule and lordship the said Diodorus in that book praises greatly; for it is not only good for the prince, who may thereby the more surely do justice than by his own arbitrament; but it is also good for his people who receive thereby such justice as they desire themselves. Now, as it seems to me, it is shown clearly enough, why one king reigns upon his people 'by only royal dominion', and the other reigns 'by political and royal dominion'; for the former kingdom began of and by the might of the prince, and the latter began by the desire and institution of the people of the same prince.
Chapter 3
Here are shown the fruits of 'royal law' and the fruits of 'political and royal law’
And although the French king reigns upon his people 'by royal dominion', yet neither Saint Louis, sometime king there, nor any of his progenitors, ever set any taxes or other imposition upon the people of that land without the assent of the three estates, which when they are assembled are like the court of the parliament in England. And many of his successors kept this order until recently, when Englishmen made such war in France, that the three estates dared not come together. And then for that reason and for the great necessity of goods which the French king had for the defence of that land, he took it upon himself to set taxes and other impositions upon the commons without the assent of the three estates. But yet he would not, nor has, set any such charges upon the nobles, for fear of rebellion. And because the commons there, though they have grumbled, have not rebelled or dared to rebel, the French kings have every year since set such charges upon them, and have so augmented the same charges, that the same commons are so impoverished and destroyed, that they can barely live.
They drink water, they eat apples with very brown bread made of rye, they eat no meat other than very seldom a little bacon, or the entrails and heads of beasts slain for the nobles and merchants of the land. They wear no wool, unless a poor coat under their outermost garment which is made of great canvas and is called a frock. Their hose are of the same canvas, and do not pass their knees, wherefore they are gartered and their thighs bare. Their wives and children go barefoot. They can live no other way. For those who were accustomed to pay their lord one scute for a tenement, hired by the year, now pay the king five more scutes over and above that one. Wherefore they are compelled by necessity continually to look out for labour and grub in the ground for their sustenance, such that their nature is wasted, and their kin are brought to nought. They walk crookedly and are feeble, not able to fight, nor to defend the realm; nor have they weapons, nor money with which to buy themselves weapons. But truly they live in the most extreme poverty and misery, and yet they dwell in one of the most fertile realms of the world.
Wherefore the French king has no men of his own realm able to defend it, except his nobles, who do not bear such impositions, and are therefore very physically able; for which reason the said king is compelled to make his armies and retinues for the defence of his land of foreigners, such as Scots, Spaniards, Aragonese, men of Germany and of other nations; or else all his enemies might overrun him; for he has no defence of his own except his castles and fortresses. Lo this is the fruit of his 'royal law'.
If the realm of England, which is an island and therefore may not easily get succour of other lands, were ruled under such a law, and under such a prince, it would then be a prey to all other nations who wanted to conquer, rob, or devour it; which was well proved in the time of the Britons, when the Scots and the Picts so beat and oppressed this land, that the people thereof sought help of the Romans, to whom they had been tributary. And when they could not be defended by them, they sought help of the duke of Brittany, then called little Brittany, and granted therefore to make his brother Constantine their king. And so he was made king here, and reigned many years, and his children after him, of which the great Arthur was one of their issue.
But, blessed be God, this land is ruled under a better law; and therefore the people thereof are not in such penury, nor thereby hurt in their persons, but they are wealthy, and have all things necessary to the sustenance of nature. Wherefore they are mighty, and able to resist the adversaries of this realm, and to beat other realms that do, or want to do, them wrong. Lo this is the fruit of 'political and royal law', under which we live. Now I have somewhat shown the fruits of both laws, 'so that by their fruits you shall know them.
Chapter 4
Here is shown how the revenues of France have been made great
Since our king reigns upon us by laws more favourable and good to us, than are the laws by which the French king rules his people, it stands to reason that we should do more good and be more profitable to him than the subjects of the French king are to him; which it would seem that we are not, considering that his subjects yield to him more in a year, than we do to our sovereign lord in two years, although they do so against their wills. Nevertheless when it is considered, a king's office stands in two things: one, to defend his realm against their external enemies by the sword, the other, that he defend his people against internal wrongdoers by justice, as it appears by the said first Book of Kings.
This the French king does not, though he keeps justice between subject and subject; since he oppresses them more himself, than would have done all the wrongdoers of the realm, though they had no king. And since it is a sin to give no meat, drink, clothing or other alms to those who have need, as shall be declared at the Day of Judgement, how much greater a sin is it to take from the poor man his meat, his drink, his clothing, and all that he has need of? Which truly the French king does to many thousands of his subjects, as is before clearly declared.
Which thing though it is now disguised 'as royal law', yet it is tyranny. For, as Saint Thomas says, when a king rules his realm only to his own profit, and not to the good of his subjects, he is a tyrant/0 King Herod reigned upon the Jews 'by royal dominion'; yet when he slew the children of Israel, he was in that a tyrant, even though the laws say, 'what pleased the prince has the force of law’. Wherefore Ahab who reigned upon the children of Israel by like law, and desired to have Naboth his subject's vineyard, would not by that law take it from him, but proferred him the value thereof. For these words said to the prophet, 'declare to them the royal law’, is not to say otherwise than, 'declare to them the power of the king’.
Wherefore as often as such a king does anything against the law of God, or against the law of nature, he does wrong, notwithstanding the said law declared by the prophet. And it is so, what the law of nature wills in this case, that the king should do to his subjects, as he would be done to himself if he were a subject which would not be that he would be almost destroyed as are the commons of France. Wherefore, albeit that the French king's revenues are by such means much greater than are the revenues which the king our sovereign lord has of us, yet they are not rightly taken, and the might of his land is almost destroyed thereby.
By which consideration I do not want the king's revenues of this realm to be made great by any such means. And yet of necessity they must be greater than they are at present. And truly it is very necessary that they are always great, and that the king should have abundantly the means by which his estate may be honourably kept for very many reasons, of which some shall now be remembered. …
[Editor’s introduction: We do not know when The Governance was first drafted, but it is clear that an updated and revised version was presented to Edward IV after 1471]
Sir John Fortescue [c.1395-1477], Chief Justice of the King’s Bench
EXTRACT TWO:
Dr Alan Cromartie wrote:
[The] larger doctrine, a theory of the character of English monarchy … 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’ as well; 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.
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 unfortunate 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 misleading. 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 Fortescue’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 supported kingship, he needed to explain away a well-known Old Testament passage: Samuel’s description of ‘the law (ius) of the 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 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. He noted 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.
The Sources:
Sir John Fortescue, On the Laws and Governance of England (Cambridge Texts in the History of Political Thought), edited by Shelley Lockwood, Cambridge University Press 1997 [pp. 83-92, the first 4 of 20 short chapters]
Alan Cromartie, The Constitutionalist Revolution: An Essay on the History of England 1450-1642, Cambridge 2006 [pp. 23-25]
Evolutions of social order from the earliest humans to the present day and future machine age.