Henry Craik, ed. English Prose. 1916. Vol. I. Fourteenth to Sixteenth Century
Critical Introduction by H. R. Reichel
Sir John Fortescue (c. 13941476)
[Sir John Fortescue, born c. 1394, died c. 1476 (both dates are conjectural), was a younger son of an old county family tracing its genealogy to the Conquest. He was educated at Exeter College, Oxford, and afterwards at Lincolns Inn. In 1442 he was made Chief Justice of the Kings Bench and knighted. From 1445 to 1455 he was selected by each Parliament as one of the Triers of Petitions, one among many proofs of the confidence his contemporaries felt in his capacity and integrity. In the Civil War he took the losing side, and after the fatal battle of Towton was included in the general Act of Attainder (1461) directed against the Lancastrians. The two following years he spent with the exiled royal family in Scotland, where he wrote a series of tracts against the Yorkist claim. From Scotland he accompanied Margaret to the Continent, where from 1463 to 1471 he occupied himself in writing (De Laudibus), in educating the young prince, and in efforts to bring about a Lancastrian restoration. He took a leading part in the negotiations which culminated in the alliance of Warwick and Margaret in 1470, and was taken prisoner in the final overthrow of his party at Tewkesbury. The Lancastrian line being now extinct, he recognised Edward IV. and was allowed to purchase his pardon by writing a formal refutation (Declaration upon Certain Writings) of his earlier pamphlets on the succession. He then withdrew to Ebrington and died there at an advanced age; the last mention of him is in 1476. The Lord Chancellorship seems in his case to have been a mere title conferred in exile.
De Laudibus first printed 1537, translated (a) 1573 by R. Mulcaster, and reissued 1573, 1575, 1578, 1599, 1609, 1616, 1660, 1672; (b) by Francis Gregor, 1737, 1741, 1775, 1825. Governance of England, first published 1714; the revised and annotated edition by C. Plummer (1885) is a model of careful scholarship, and a mine of information. The other writings are to be found only in Lord Clermonts (1869) sumptuous and exhaustive collection of the complete works.]
I. Pamphlets on the Succession.Those on the Lancastrian side were written in Scotland, between 1461 and 1463, and the two most important are extant only in Latin, the Yorkist dynasty having stifled any translations which may have existed. The retraction (c), on the other hand, being meant for immediate publicity, was naturally written in the vernacular.
a. De titulo Edwardi comitis Marchiæ.This short piece strikes the keynote of Fortescues Lancastrian pamphlets, the invalidity of succession through the female, which is here supported partly by general considerations, but mainly by an appeal to historical precedent.
b. De Naturâ Legis Naturæ et de ejus censurâ in successione regnorum supremâ, a bulky and dull treatise dealing with the subject of female succession in general without direct reference to the controversy of the day. The king of Assyria dies, and the succession is disputed between his brother, his daughter, and the daughters son. In Part I. it is argued that the dispute must be decided by the Law of Nature, which is prior to all other law and of divine origin; and in the course of the argument Fortescue developes at length his favourite classification of constitutions into (i.) Dominium regale, absolute monarchy; (ii.) Dominium politicum, republican government; and (iii.) that which partakes of both characters (Dominium politicum et regale) limited or constitutional monarchy. This introductory part really belongs to the constitutional section. In Part II. the Law of Nature is installed as judge, and the three parties plead before her, the daughter maintaining the right of female succession, the brother denying it altogether, and the grandson advancing Edward III.s plea that a woman though incapable of succeeding can transmit the right of succession. After the pleadings have been followed by replications, and these again by duplications, the judge sums up in favour of the brother on the strength of (i.) the Scripture text. Thou shalt be subject to the man, and he shall rule thee, which puts the daughter out of court, and (ii.) the legal maxim No one can transmit to another a greater legal right than belongs to himself, which is equally fatal to the grandsons claim. The treatise closes with an appeal to the Pope to enforce this decision, and thus prevent further wars of succession.
(c) A declaration upon certain writings sent out of Scotland against the Kings title to the Realm of England is the title of the retractation. It is in the form of a dialogue. A learned man takes Fortescue to task for the trouble his succession tracts had caused in England, and then proceeds to expose certain historical blunders contained in them. Retreat is thus ingeniously veiled: the author yields to more accurate information inaccessible to him while on the Continent. The historical arguments thus disposed of, there remains the more formidable difficulty involved in the text, Thou shalt be subject to the man, and he shall rule thee. The plea of inaccurate information could no longer be urged. Fortescue feels that here at least he can hardly draw back without loss of character. The learned man, however, reassures him; it is the commonest thing in the world for lawyers to argue on the other side of the question, and in this case loyalty makes it a duty. Thus encouraged Fortescue sustains his legal reputation by proving that the rule is no bar to female succession, inasmuch as every woman is already subject to one man, viz. the Pope! The true defence of his volteface, however, is his Whiggism. The man who wrote The Governance could not champion indefeasible hereditary right.
II. Constitutional Writings.On these depend his permanent reputation, both as a constitutional lawyer and as a writer of English. They present in the tersest and most uncompromising form the Lancastrian theory of constitutional government; and so, when the period of Tudor despotism was over, the constitutional opposition which appealed to Confirmatio Cartarum (1297) as the record of its rights, went back for its constitutional theory to Fortescue. The burden throughout is the superiority of limited to absolute monarchy, of which England and France are taken as the types.
(a) De Laudibus Legum Angliæ, the best known and most important of his writings, is in the form of a dialogue between Fortescue and Prince Edward, for whose instruction it was compiled. The judge urges the prince, while perfecting himself in all martial exercises, not to neglect the study of law. This leads to a comparison of English Law with the Civil Law much to the advantage of the former, especially in such points as the jury system, the illegality of torture, and the inability of the English king to make or change laws on his own sole authority.
(b) The Governance of England, also known as the difference between an Absolute and a Limited monarchy is the most mature and least pedantic of his writings, and must have been written after 1471. The first part sets forth in English dress and conciser form the argument of the De Laudibus; the second deals with the causes of the paralysis which, during Henry VI.s reign was creeping over the central authority, and suggests several remedies, such as the resumption of royal grants, the reform of the Privy Council, etc.
III. Miscellaneous Writings.(a) A Dialogue between Understanding and Faith is a brief but touching tract on the miseries produced by the Civil War, and breathes a spirit of unaffected piety and resignation. (b) Two other short pieces, The Commodities of England, and The Twenty-two Righteousnesses belonging to a King, have been ascribed to Fortescue, apparently, however, without sufficient ground.
The historical value of Fortescues works is great, both as illustrating his own age, as having furnished weapons to the constitutional reformers of 1641, and as being the first English writings in which a constitutional system is based upon analysis of existing institutions, rather than on the à priori speculation so dear to the medieval mind.
As a writer of English prose, Fortescues chief merit lies in the fact that he was the first to adapt it to the discussion of political and constitutional problems. His phraseology is, of course, somewhat antiquated: he preserves the en termination of the infinitive and of the plural of verbs, together with a few other archaisms which have disappeared by the reign of Henry VIII. His style, moreover, being necessarily experimental, lacks elegance and harmony; but it is never undignified, it always exhibits the vigour, lucidity, and method of the practised lawyer, and occasionally kindles with the glow of patriotism or professional pride.