The Influence of the Writings of Sir John Fortescue Author(s): Caroline A. J. Skeel Source: Transactions of the Royal Historical Society, Vol. 10 (1916), pp. 77-114 Published by: Cambridge University Press on behalf of the Royal Historical Society Stable URL: http://www.jstor.org/stable/3678339 Accessed: 03-07-2016 20:22 UTC Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://about.jstor.org/terms JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Royal Historical Society, Cambridge University Press are collaborating with JSTOR to digitize, preserve and extend access to Transactions of the Royal Historical Society This content downloaded from 142.66.3.42 on Sun, 03 Jul 2016 20:22:45 UTC All use subject to http://about.jstor.org/terms THE INFLUENCE OF THE WRITINGS OF SIR JOHN FORTESCUE By CAROLINE A. J. SKEEL, D.Lit., F.R.Hist.S. Read December 16, 1915 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 139o 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 Brance- peth. 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 6 * This content downloaded from 142.66.3.42 on Sun, 03 Jul 2016 20:22:45 UTC All use subject to http://about.jstor.org/terms 78 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY Laudibus Legum Angliae,' and drew up memoranda on the political situation and a programme for the restored Lancastrian government. Fortesdue 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. 'To the Reader. Fortescue de Laudibus Legum Angliae. This book was written in the reign of Henry VI in commendation of the laws of England, containing withal much excellent matter worthy the reading. He wrote" also a book in defence of the title of King Henry VI, his sovereign Lord and Master, to the crown of England; but after, out of truth and conscience re- tracted the same, both of which I have. Wherein he deserved singular commendation in that he was not amongst the number of those " qui suos amassent errores " but yielded to truth when he found it.' 2 At some period between 1471 and 1476 Fortescue wrote his constitutional treatise, ' The Governance of England,' or the' Monarchia' ; 3 the last notice of him which has yet 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. 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 speak- ing, to the first part only of the work. This content downloaded from 142.66.3.42 on Sun, 03 Jul 2016 20:22:45 UTC All use subject to http://about.jstor.org/terms INFLUENCE OF WRITINGS OF SIR JOHN FORTESCUE 79 been discovered belongs to 1476; how much longer he lived is not known. The concluding lines of the inscription on his memorial tablet in Ebrington Church, Gloucestershire, say that he lives still in his book ' De Laudibus Legum Angliae.' He has lived yet more securely in the long line of eminent descendants that includes Sir Faithful Fortescue, the royalist commander, Lord Fortescue of Credan, a dis- tinguished eighteenth-century lawyer, and, in our own day, the historian of the British Army. Such a career as Fortescue's was widely different from that of the ordinary fifteenth-century lawyer. Dr. Holds- worth goes so far as to say that the partisan attitude of Fortescue is almost, if not quite, unique among lawyers; equally unusual was the necessity imposed upon him of demolishing his own arguments respecting the succession. Of greater importance, however, is the rare opportunity afforded to Fortescue by his sojourn in France. Few common lawyers before him could have had such a chance of gaining experience in diplomacy and statesmanship. 'He was at leisure to reflect from the outside upon the condition of his country, and upon its system of law, in the study and administration of which he spent the greater part of his life.' 1 Again, he could write on questions of law and government with that insight which, to quote Clarendon-himself twice exiled in France-' is contracted by the knowledge and course and method of business, and by conversation and familiarity in the inside of courts, and with the most active and eminent persons in the govern- ment.' 2 Fortescue's acquaintance with French financial methods and the hardships they involved led him to detest oppression, just as Burnet's sojourn abroad in the days of the dragonnades strengthened his hatred of persecution. Crude as Fortescue's work may seem to us now after the lapse of five centuries, yet he did undeniably achieve something of value in the comparative study of law and politics. As a common lawyer he was convinced that the 1 Holdsworth, History of English Law, vol. ii. p. 478, n. 3. 2 Quoted by Prof. Grant, in English Historians, p. xx, n. i. This content downloaded from 142.66.3.42 on Sun, 03 Jul 2016 20:22:45 UTC All use subject to http://about.jstor.org/terms 80 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY common law of England was better than the civil law; as an Englishman he was equally convinced that English institutions excelled the French. His attitude is hardly scientific; but the mere fact that he institutes the com- parison is worth something. It is owing to such lawyers as Fortescue that Sir Frederick Pollock could say in his Inaugural Lecture :- 'Had English law been in its infancy drawn within the masterful attraction of Rome, the range of legal discussion and the analysis of legal ideas would have been dangerously limited. Roman conceptions, Roman classification, Roman under- standing of legal reason and authority would have dominated men's minds without a rival. It is hardly too much to say that the possibility of comparative jurisprudence would have been destroyed.' 1 No less valuable was the service rendered by Fortescue to the study of political ideas. First of mediaeval writers he ' brings political philosophy from the clouds to earth by basing his theoretical analysis upon observation of existing conditions;' " he thus in a measure anticipates the work of Machiavelli. Before attempting to trace through the centuries the influence exerted by Fortescue's writings, it will be well to summarise briefly the contents of the ' De Laudibus Legum Angliae' and the ' Governance of England.' For the present purpose his other works may be neglected: they were not printed till the complete edition of Fortescue's works in 1869, and their intrinsic importance is slight. The treatise ' De Laudibus Legum Angliae ' was written for the benefit of Edward Prince of Wales (eldest son of Henry VI) during his exile in France.