Sir John Fortescue (1394–1479), who has been called by Ernst Kantorowicz “England’s greatest jurist of the Lancastrian period,” called England a dominium politicum et regale. A kingdom ruled politically and regally. This definition became subsequently very influential, not least because it contains a limitation on both the monarch and Parliament. One cannot rule without the other. Fortescue purported to derive his analysis from St. Thomas Aquinas and Giles of Rome. This has been the subject of considerable controversy, not least because it has not been clear over the last five hundred years or so where in Aquinas Fortescue found the notion of the dominium politicum et regale. Nevertheless, it is important to observe that Fortescue took great pains to claim Aquinas as an antecedent. This is one more example of the classical legal tradition—the ius commune—finding its way into English legal theory.
I have elsewhere argued, tongue in cheek, that one may even be able to find surprising aspects of the ius commune in the common law. And Adrian Vermeule has very recently demonstrated that the United States Supreme Court has held that, because the Union existed before the Constitution, there are certain rights held by the government not set forth in the federal constitution. In other words, the concrete order in which the laws of the United States are valid, including the federal constitution, includes all sorts of elements, such as the English common law. And the English common law itself includes, through the mediation of writers like Fortescue, important aspects of the ius commune.
Fortescue articulated a distinction between dominium regale, dominium politicum, and dominium politicum et regale. Beginning in De natura legis naturae (I.16) and continuing with De laudibus legum Angliae (c.13–14) and The Government of England (c.1–2), Fortescue articulated a careful distinction between the dominium regale, in which the king rules according to his own will (i.e., the laws he himself established) and the dominium politicum, in which the king rules according to the laws established by the citizens. Fortescue distinguished the dominium regale et politicum from both the dominium regale and the dominium politicum: in the dominium regale et politicum, the king and the citizens together held responsibility for the laws, according to which the king ruled. Fortescue held that England was a dominium regale et politicum: the king, the lords, and the commons all shared responsibility for the common good of the realm.
The concept of the dominium regale et politicum is influential in English law, not least because Fortescue uses the English constitution to illustrate it. In sum, neither the king nor Parliament can make laws without the other’s consent (De natura legis naturae I.16). More than this, the king’s judges are bound by their oaths not to rule against the laws of the kingdom even if the king should order them to do so (ibid.). Ernst Kantorowicz, in The King’s Two Bodies, noted that Fortescue’s reasoning was an important stage in the development of the theory of the corpus mysticum of the state (cf. De laudibus legum Angliae c.12). All of these are important points that would have significant consequences for English law—to say nothing of English history. But it is well worth noting that the ground for all this is the classical legal tradition.
In Fortescue’s works, especially in De natura legis naturae and The Government of England, he took care to base his distinction between dominium regale and dominium politicum on sources in the classical legal tradition, notably St. Thomas Aquinas and Giles of Rome. While Fortescue’s use of Giles of Rome’s De regimine principum is fairly straightforward, his citation to St. Thomas is a little more complicated. A couple of places in St. Thomas’s works have been identified as the source for Fortescue’s division. First is an interesting comment in the prima pars of the Summa theologiae where Aquinas notes that the soul dominates the body with a despotic power, but the intellect dominates the appetite with a politic and royal power—“anima quidem enim corpori dominatur despotico principatu; intellectus autem appetitui, politico et regali” (ST Ia q.81 a.3 ad 2). Aquinas gives the definition: a despotic power is the power a king has over slaves, who, having nothing, cannot resist; a politic and royal power is what a ruler has over free men, who, having something of their own, can resist (ibid.).
An aside. Note that Aquinas connects directly private property with the ability of free citizens to resist their rulers. The abolition of private property, therefore, renders the subjects of a ruler in the condition of slaves, who, having nothing of their own, are unable to resist the ruler—“qui non habent facultatem in aliquo resistendi imperio praecipientis, quia nihil sui habent” (ST Ia q.81 a.3 ad 2). Certainly St. Thomas offers other reasons why private property is fitting (cf. ST IIaIIae q.66 a.2 co.), but the suggestion that private property is necessary for free citizens to be able to resist tyrannical rulers is no less fitting than the reasons St. Thomas later adduces (cf. In I Pol. L.1 l.2). The inevitable trajectory from the abolition of private property under, for example, socialist and communist regimes to the most appalling tyranny seems to support Aquinas’s distinction. At any rate, this distinction of Aquinas is fairly interesting not merely because of its potential influence on Fortescue.
Setting to one side St. Thomas’s tantalizing suggestion in the prima pars, it has also been suggested that Sir John Fortescue had in mind the commentary on Aristotle’s Politics. There St. Thomas distinguishes the regimen politicum from the regimen regale (In I Pol. L.1 l.1, no. 13). In the regimen regale, the ruler has the plenitude of power. In the regimen politicum, the ruler has coercive power in accordance with the laws of the community. Now, it is clear that neither the statement in the prima pars nor the division in the commentary on the Politics quite contains Fortescue’s third division, the dominium regale et politicum. This is no doubt why Fortescue’s reference to Aquinas for the dominium regale et politicum has been the subject of study, commentary, and some debate.
Nevertheless it is clear that Fortescue wanted very much to ground his political thought in the thought of Aquinas and Giles of Rome—despite the murkiness of how Fortescue got from Aquinas to his conclusion. And, through Aquinas in particular, one finds Aristotelian underpinnings for Fortescue’s division. Aquinas’s analysis in the prima pars is itself based on a quote from the Politics (cf. In I Pol. L.1 l.2). But this is not all. Fortescue also takes pains to find antecedents for the dominium regale et politicum in Roman history (De natura legis naturae I.16). Indeed, Felix Gilbert, in a very influential essay, has argued that it is the account of the Roman imperial constitution in book three of Ptolemy of Lucca’s continuation of Aquinas’s De regno that gave Fortescue the notion of the dominium regale et politicum. Fortescue then proceeded to refine this idea in the De laudibus and the Government of England.
It is not too important—for my purposes, at any rate—to sort out the thorny question of precisely how Fortescue got from Aquinas to the dominium regale et politicum. (Kantorowicz, for example, takes Gilbert’s analysis at face value. Others do not.) What is important is the lengths to which Fortescue went to ground his analysis, ultimately, of the English constitution in the terms of the classical legal tradition, here St. Thomas Aquinas, Giles of Rome, and Ptolemy of Lucca, and the Roman constitution. The influence of the ius commune on Bracton and Glanvill is well known and well documented. But it’s worth observing that this influence continued well after the foundation of the English legal tradition and it constitutes, therefore, an important part of the concrete order underpinning modern American law.
Pat Smith
