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The Influence of the Writings of Sir John Fortescue

Published online by Cambridge University Press:  12 February 2009

Caroline A. J. Skeel
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Extract

To trace the influence of writings is a task in which full attainment is impossible. Yet the attempt is worth making, especially when the writer under consideration was in some sort a pioneer, the first to write a constitutional treatise in the English language, and likewise the first, in all probability, to write a legal treatise for the benefit of English laymen. Few English lawyers can have had so varied a career as that of Sir John Fortescue. Born some time between 1390 and 1400, he lived to see the ‘unquiet time’ of Henry IV, the ‘victorious acts’ of Henry V, and the ‘troublous season’ of Henry VI, which ended in the overthrow of the Lancastrian dynasty, and the apparently firm establishment of the Yorkist line. In early manhood he became a serjeant-at-law; in 1442 he was made Chief Justice of the King's Bench; in 1443 he was sent on various special commissions; in the critical year 1450 he acted as spokesman of the Judges in relation to the trial of Suffolk, and four years later he delivered the Judges' opinion on the important case of Thorpe. During the early stages of the Wars of the Roses Fortescue was actively engaged in various extra-judicial duties; in 1461 he was present at the battle of Towton, and a few months later he fought against Edward IV at Ryton and Brancepeth. Between 1461 and 1463 he wrote the ‘De Natura Legis Naturae’ and various tracts on the succession question, and in 1463 he accompanied Queen Margaret and her son into exile in Flanders and France, where he remained till 1471. During his sojourn abroad he wrote the ‘De Laudibus Legum Angliae,’ and drew up memoranda on the political situation and a programme for the restored Lancastrian government. Fortescue took a prominent part in the conclusion of the agreement between Margaret and Warwick in 1470, and accompanied the queen and her son to England, landing at Weymouth on the very day of Warwick's overthrow and death at Barnet. Less than a month later he was taken prisoner at Tewkesbury, and Prince Edward was slain; before long Henry VI also died, and there was nothing before the loyal Lancastrian but to accept the clemency of the conqueror, Edward IV. His pardon passed the Great Seal, he was made a member of the King's Council, and before very long he obtained (1473) the reversal of his attainder and the restoration of his estates at the price—hard for a lawyer to pay—of refuting in writing the arguments he had formerly adduced against Edward's title. An interesting reference to this treatise is made by Coke.

Type
Research Article
Information
Transactions of the Royal Historical Society , Volume 10 , December 1916 , pp. 77 - 114
Copyright
Copyright © Royal Historical Society 1916

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References

1 The title is: —‘A Declaration upon Certain Writings sent out of Scotland against the King's title to the realm of England.’ The form is a dialogue between Fortescue and ‘a learned man in the law of this land.’

2 Quoted in Lord Clermont's edition of the Life and Works of Fortescue, vol. i. p. 49.Google Scholar

3 The title given to the treatise in the Yelverton MS., ‘Sir John Fortescue on the Governance of England,’ well describes its scope. The first editor, Lord Fortescue of Credan, adopted the title ‘The Difference between an Absolute and Limited Monarchy,’ which applies, strictly speaking, to the first part only of the work.

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1 Sir Frederick Pollock points out that Fortescue's conception of a true limited monarchy as ‘dominium politicum et regale’ seems to have been original; the common opinion was that only elective kings could have limited authority (Introduction to the History of the Science of Politics, p. 51, n. 1).Google Scholar

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1 Lord Clermont's edition of Fortescue's works has here ‘rex politice imperans genti suae.’

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1 A minor point of interest in this tract is that it shows Somers to have been accquainted with the Governance of England. The references to Nimrod on p. 62, and later to Naboth, are evidently taken from cc. 2 and 4 of Fortescue's treatise, then still imprinted.

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