The Parliamentary Case of Goodwin v. Fortescue: The Role of Legal Mentalité in Constitutional Change

Appended to the c. 1690 treatise Lex Parliamentia is a translation of a French-language report of the proceedings in the parliamentary case of Goodwin v. Fortescue concerning the Buckinghamshire election dispute of 1604 in which the Chancery voided the election of Sir Francis Goodwin to the House of Commons on the grounds that he was outlawed. As a manual for the use of the Convention Parliament, Lex Parliamentaria supplied terse, definitive statements on the powers and prerogatives of the Lords and Commons, jointly and as separate houses. Because any manual’s utility is directly proportional to its ready comprehension, this raises the question of why the Goodwyn case was singled out as the only one worthy of a full report in a treatise that is otherwise focused on summary exposition of relevant parliamentary precedents supported by brief citations.

The traditional and generally accepted reading of Goodwin is that it represents the political coming-of-age of the House of Commons as the leading constitutional actor in the pre-Civil War struggle for sovereignty. Goodwin certainly stands as an important milestone in parliamentary judicature because it provides confirmation of the Common’s constitutional claim of exclusive jurisdiction (or “cognisance”) over cases involving the qualifications and election of its members despite the objections of King James VI and I. However, Goodwin’s constitutional importance is not derived so much from the political nature of the case—e.g., Commons v. King, royal court v. county gentry—but from the legal nature of the case.

I suggest that Goodwin represents the role of the prevailing legal mentalité—i.e., professional sensibilities, habits of mind, and intellectual reflexes—of the common-law lawyers and parliamentarians who debated the case with the King in creating constitutional change. I first examine the Lex Parliamentaria report to show that the proceedings were particularly lawyerly, rather than political, as they were grounded in formalistic argument that carefully dissected and distinguished precedents, explaining what each meant (and did not mean) in the context of the pending proceedings. I then argue that the participants’ legal mentalité reflected what Christopher Brooks termed the “increasing richness” of the Elizabethan common-law mind and that it is unlikely that the proceedings could have been conducted any other way. Finally, I compare the Goodwin proceedings with selected pre-Civil War proceedings to demonstrate that the lawyerly argument reflected in the Lex Parliamentaria report is not an aberration when matters of constitutional significance were being considered in Parliament. This examination suggests why Goodwin is the only case report in Lex Parliamentaria: it stands for the simple proposition that any successful parliamentary constitutional change—at least in the first instance—was justified only when it was legally reasoned against the common intellectual background of the common law. I conclude with a brief discussion of the implications of this proposition.