Dictionary of National Biography, 1885-1900/Fortescue, John (1394?-1476?)
FORTESCUE, Sir JOHN (1394?–1476?), chief justice of the king's bench and legal writer, was the second of the three sons of Sir John Fortescue, whom Henry V made governor of Meaux, the eldest being Sir Henry Fortescue [q. v.], sometime chief justice of the common pleas in Ireland, and the third Sir Richard Fortescue, who was killed at the battle of St. Albans in 1455 (see the family pedigree in Clermont's supplement to Family History). The date of his birth cannot be precisely stated, but it was certainly before the beginning of the fifteenth century. He is said to have been educated at Exeter College, Oxford; he was a ‘gubernator’ of Lincoln's Inn in 1425, 1426, and 1429 (Dugdale, Orig. Jud. p. 257: in the first two years he is called ‘Fortescue junior’), and in 1429 or 1430 he received the degree of serjeant-at-law. No one, he says in the ‘De Laudibus,’ chap. 1., had received this degree who had not spent at least sixteen years in the general study of the law, which enables one to form a guess as to the date of his birth (but cf. De Natura Legis Naturæ, ii. 10, and Plummer, p. 40). Thenceforth his name appears with increasing frequency in the year-books. About 1436 he married the daughter of John Jamyss of Philips Norton in Somersetshire. In an exchequer record of 20 Hen. VI he is mentioned as a justice of assize (Kal. Exch. iii. 381). In 1442 he was made chief justice of the king's bench, and was soon afterwards knighted. Frequent references to him occur in the privy council records for the following years. In 1443 he sat on a commission of inquiry into certain disturbances in Norwich caused by ecclesiastical exactions, and received the thanks of the council for ‘his grete laboures’ in the matter; and later in the year he was member of another commission to inquire into similar disturbances in Yorkshire. From 1445 to 1455 he was appointed by each parliament one of the triers of petitions. In a grant of 1447 admitting Fortescue and his wife to the fraternity of the convent of Christchurch, Canterbury, we find him thus described in the reasons for his admission: ‘Vir equidem justus, quem omnes diserti justum discernunt, obsequuntur, venerantur, et diligunt, cum et omnibus velit prodesse sed obesse nulli, nemini nocens sed nocentes prohibens’ (Plummer, p. 48), and this agrees with the character which tradition has given to him. A few years afterwards, however, he appears as an object of popular displeasure. In Cade's proclamation (1450), in which an inquiry by some true justice is demanded, it is said: ‘Item, to syt upon this enqwerye we refuse no juge except iij chefe juges, the which ben fals to beleve’ (Three Fifteenth Century Chronicles, Camd. Soc. p. 98, see also p. 102; and Wright, Political Poems and Songs, ii. lvii n.); and Sir John Fastolf's servant writing in 1451 says: ‘The Chief Yistice hath waited to ben assauted all this sevenyght nyghtly in hes hous, but nothing come as yett, the more pite’ (Gairdner, Paston Letters, i. 185). Probably the only reason for his unpopularity was that he was known to belong to the court party; for as judge there is every reason to believe that he was distinguished for his impartiality. Among the cases with which he had to deal as chief justice may be mentioned that of Thomas Kerver, a prisoner in Wallingford Castle, whom he refused to release on the simple command of the king (Clermont, Life, p. 10); and Thorpe's case (31 Hen. VI), in which he and Prisot, chief judge of the common pleas, expressed the opinion of all the judges that they ought not to answer the question put to them by the lords whether the speaker, who had been arrested during the recess, should be set at liberty, ‘for it hath not been used aforetime, that the judges should in any wise determine the privilege of this high court of parliament’ (13 Rep. p. 64; Hatsell, i. 29; Stubbs, Const. Hist. iii. 491). The cases in the year-books (21 Hen. VI–38 Hen. VI) in which Fortescue took part as chief justice are reprinted, with a translation, in the appendix to Lord Clermont's edition of his works. After the battle of Northampton in 1460 the fortunes of Fortescue followed those of the house of Lancaster, to which he remained faithful as long as any hope remained. Whether he was among the judges who declined to advise on the Duke of York's claim to the crown or had accompanied the queen to Wales does not appear. But he was present at the battle of Towton in 1461 (Collections of a London Citizen, Camd. Soc. p. 217, where he is called ‘the Lord Foschewe’), and was included in the act of attainder passed against those who had taken part against the new king, Edward IV. At the time of his attainder he was a man of considerable landed property, acquired through his wife and by his own purchases (see Plummer, pp. 42–4). He spent the next two years in Scotland with the deposed family, and wrote several treatises in favour of the title of the house of Lancaster, including the ‘De Natura Legis Naturæ.’ The question has been discussed whether Fortescue was ever Henry VI's chancellor, as he describes himself in the ‘De Laudibus;’ the better opinion is that he was only chancellor ‘in partibus’ (Campbell, Lord Chancellors, i. 367; Foss, iv. 312; Plummer, p. 57; Clermont, pp. 15–17). In 1463 he followed Queen Margaret to Flanders, and remained abroad, living in poverty, with her and the Prince of Wales till 1471, first at Bruges and afterwards at St. Mighel in Barrois. The ‘De Laudibus,’ written towards the end of her exile, suggests that he devoted himself to the education of the prince; while he seems to have spared no effort to procure assistance from Louis XI and others in order to bring about a restoration. After the Earl of Warwick's defection from Edward IV, Fortescue was particularly active. He took great pains in forwarding the marriage between Prince Edward and Warwick's daughter, and would seem to have been in frequent communication with the French king (his papers to Louis XI are not preserved: Lord Clermont prints a memorandum of them, dated 1470, which is in the Bibliothèque Nationale: p. 34 of Life). By Warwick's aid the Lancastrian restoration was accomplished in the autumn of 1470; but it was not until April 1471 that the queen, Prince Edward, and Fortescue landed in England, and then only to find that on the day of their landing King Henry had been defeated at Barnet. Fortescue joined the Lancastrian army, and was taken prisoner at the battle of Tewkesbury, at which Prince Edward was killed. Frankly acknowledging that nothing remained for which to struggle, he recognised King Edward, received his pardon (1471), and was admitted to the council (Works, p. 533). It was evidently made a condition of his restoration to his estates that he should formally retract and refute his own arguments in favour of the Lancastrian, which he did in his ‘Declaracion upon certayn wrytinges sent oute of Scotteland.’ Thereupon he petitioned for a reversal of his attainder, alleging among other things that he had so clearly disproved all the arguments that had been made against King Edward's right and title ‘that nowe there remayneth no colour or matere of argument to the hurt or infamye of the same right or title, by reason of any such writyng;’ and his prayer was granted by parliament (1473: Clermont, Life, pp. 41–3). He himself feared that his change of front would lay him open to the charge of doubleness. But whether it was a purely conscientious change of opinion or not (see Coke's vindication, pref. to 10th Rep.), it must be remembered that Fortescue had given the best proof of his honesty by the extraordinary sacrifices which he had made for the lost cause. On the reversal of his attainder, he went to live at Ebrington, where he died, and in the parish church of which he was buried. The date of his death is unknown, the last mention of him being in 1476 (Kal. Exch. iii. 8). ‘According to local tradition,’ says Lord Clermont, ‘which the present occupant of the manorhouse repeated to me, he lived to be ninety years old’ (Life, p. 44). He left one son, Martin, who died in 1471, and two daughters. The present Earl Fortescue is descended from Martin's elder son, Lord Clermont from the younger.
Fortescue's fame has rested almost entirely on the dialogue ‘De Laudibus.’ Coke, speaking with the exaggeration which he used in referring to Fortescue's contemporary, Littleton, described it as worthy, ‘si vel gravitatem vel excellentiam spectemus,’ of being written in letters of gold (Pref. to 8th Rep.), and Sir W. Jones, following him, called it ‘aureolum hunc dialogum’ (Amos, p. x). In the history of law it is still a work of importance. The editor of his less known treatise, ‘On the Governance of England,’ however, has good reason for his opinion that the historical interest of the latter is far higher. It is less loaded with barren speculations, and it shows a real insight into the failure of the Lancastrian experiment of government; while it is invaluable as the earliest of English constitutional treatises (on Fortescue's constitutional theories, see Stubbs, iii. 240). Except for the minute student his other writings have no interest.
The following are Fortescue's works: 1. Tracts on the title to the crown. For Henry VI, (1) ‘De Titulo Edwardi Comitis Marchiæ’ (in Clermont, with translation by Stubbs, pp. 63*–90*); (2) ‘Of the Title of the House of York’ (a fragment, Clermont, pp. 499–502; Plummer prints what was probably the beginning of the tract ‘Governance,’ p. 355); (3) ‘Defensio juris Domus Lancastriæ’ (Clermont, with translation, pp. 505–16); (4) a short argument on the illegitimacy of Philippa, daughter of Lionel, duke of Clarence (Clermont, pp. 517–18; more fully in Plummer, p. 353). For Edward IV, ‘The Declaracion made by John Fortescu, knyght, upon certayn wrytinges sent oute of Scotteland agenst the Kinges Title to the Roialme of England’ (Clermont, pp. 523–41; in the form of a dialogue between Fortescue and ‘a lernid man in the lawe of this lande,’ written 1471–1473). 2. ‘De Natura Legis Naturæ, et de ejus censura in successione regnorum suprema.’ The treatise written in support of the claim of the house of Lancaster consists of an argument on this abstract case: ‘A king, acknowledging no superior in things temporal, has a daughter and a brother. The daughter bears a son; the king dies without sons. The question is, whether the kingdom of the king so deceased descends to the daughter, the daughter's son, or the brother of the king.’ The first part is devoted to a consideration of the law of nature, by which the question is to be decided; in the second part, Justice, sitting as judge, hears the arguments of the rival claimants, the daughter, the grandson, and the brother, and decides in favour of the last. The treatise was one of Fortescue's ‘writings sent out of Scotland,’ and therefore written between 1461 and 1463. First printed by Lord Clermont, with translation and notes by Mr. Chichester Fortescue (Lord Carlingford). 3. ‘De Laudibus Legum Angliæ.’ Written for the instruction of Edward, prince of Wales, while he was in exile in Berry, with his mother, Queen Margaret: date about 1470. It is in the form of a conversation between Fortescue and the prince, who is encouraged to acquaint himself with the laws of England. First printed in 1537. Subsequent editions: (a) containing translation by Robert Mulcaster, 1573, 1575, 1578, 1599, 1609, 1616 (with preface and notes by Selden, but without his name, and containing also the ‘Summæ’ of Hengham), 1660 (reprint of 1616), 1672 (with Selden's name, said to be a faulty edition); (b) translation by Francis Gregor, 1737, 1741, 1775, 1825 (with notes by A. Amos), 1869 (Lord Clermont). Also ‘Fortescutus illustratus; or a commentary on that nervous treatise, “De Laudibus Legum Angliæ,”’ &c., by Edward Waterhouse, 1663. The work still waits a competent and careful editor. It is said to have suffered from interpolations; in particular, chapter xlix., on the inns of court, &c., has been questioned (see Pulling, Order of the Coif, pp. 153–4). 4. A treatise on the monarchy of England, variously entitled ‘The Difference between an Absolute and Limited Monarchy,’ ‘On the Governance of the Kingdom of England,’ ‘De Dominio Regali et Politico,’ probably written after Fortescue's return to England in 1471 (see Plummer, pp. 94–6). Having repeated the distinction which he draws in the ‘De Natura’ and the ‘De Laudibus’ between ‘dominum regale,’ or absolute monarchy, and ‘dominum politicum et regale,’ or constitutional monarchy, he discusses the means of strengthening the monarchy in England, taking many illustrations, by way of contrast, from his experience in France; the increase of the king's revenues, for ‘ther may no realme prospere, or be worshipful and noble, under a poer kyng;’ the perils that arise when subjects grow over-mighty; that the safeguard against rebellion is the wellbeing of the commons; a scheme for the reconstitution of the king's council; and the bestowal by the king of offices and rewards. The treatise is referred to in Selden's preface to the ‘De Laudibus;’ it was first published in 1714 by Lord Fortescue of Credan (another edition in 1719), and the same text was printed in Lord Clermont's collection. In 1885 a revised text was published by Mr. Charles Plummer with an historical and biographical introduction and elaborate notes. Mr. Plummer's work is a mine of information concerning not only Fortescue himself, but also the history of his time, and every historical and constitutional question suggested by his treatise. 5. ‘A Dialogue between Understanding and Faith,’ wherein Faith seeks to resolve the doubts raised by Understanding as to the Divine justice which permits the affliction of righteous men (first printed in Lord Clermont's collection, date unknown).
Lord Clermont prints several other short pieces, including one on ‘The Comodytes of England’ and a rhymed ‘legal advice to purchasers of land,’ but the evidence of Fortescue's authorship is not strong (see Plummer, pp. 80–1).[Plummer's Introduction to The Governance of England; Life of Fortescue in Lord Clermont's edition of Fortescue's works; Foss's Judges, vol. iv.; Biog. Brit.; Gairdner's Paston Letters.]