John Fortescue

English politician and author

• Born: c. 1385
• Birthplace: Norris, Somerset, England
• Died: c. 1479
• Place of death: Ebrington, Gloucestershire, England

The first English thinker to recognize that Parliament’s power over legislation and taxation had made England a limited rather than an absolute monarchy, Fortescue played a major role in shaping English constitutional concepts. He also is the author of the first substantial discussion of the English government and its legal foundations to be written in the English language.

Early Life

Lamentably little is known of the early life of Sir John Fortescue (FOHRT-eh-skew). His father, a knight, had much land in Devon, providing for his son’s lengthy legal education at the Inns of Court. No man, John Fortescue later asserted, could become a sergeant-at-law as he did in 1430 without having studied the law for sixteen years. Becoming a sergeant not only marked the culmination of Fortescue’s study of and apprenticeship in England’s common law but also admitted him to the lucrative practice of law before the Court of Common Pleas. After this, the records indicate, he began to acquire wealth and responsibilities, both from the flourishing of his legal career and from his marriage to an heiress in 1435 or 1436. In 1442, he was appointed chief justice of the Court of King’s Bench and was made a knight a few months later.

Fortescue left no private letters or memoirs, and no contemporary penned a description that would permit one to gain personal knowledge of him. Virtually all that can be grasped of his character and personality must be deduced from his books and from the scant facts about his life that have survived. Even a glance at his writings, though, shows us an agile and energetic mind. While other thinkers of his time based their conclusions on the ideal of what should be or on the received wisdom of the past, Fortescue had the strikingly modern habit of observing and analyzing the way things really worked. He would then take this knowledge, gained from long experience in wrestling with problems of law and politics, and use it to suggest changes that could make institutions work better. He had a buoyant, optimistic faith that truth and justice would ultimately prevail, which stands out vividly against the grim fabric of his age. An underlying human decency is also revealed in the abhorrence with which he regarded torture and in the satisfaction he derived from the fact that in England even the peasants lived reasonably well, not crushed by taxes and the exactions of the nobles, as in France.

Life’s Work

Fortescue served as chief justice of the Court of King’s Bench for nearly two decades, absorbed in his judicial duties and his growing political role as a firm supporter of the ruling Lancastrian dynasty. Meanwhile, the restlessness of a number of powerful barons, led by the duke of York, was creating an increasingly turbulent political situation in England. In 1455, the Wars of the Roses began as these aristocratic opponents of Henry VI , the feckless Lancastrian monarch, turned to violence. By 1461, the Yorkists had triumphed; their leader sat on the throne of England as King Edward IV . Fortescue fled into exile with Henry VI and his family. For the next decade, he would share their troubles; his intelligence, experience, and energy made him one of the most prominent figures in their train. Year after weary year, in Scotland, Burgundy, and France, he participated in an endless round of negotiations and intrigues designed to restore Henry VI to the throne. In 1470, he helped secure French help and an alliance with England’s powerful earl of Warwick . This shaky combination was able to force the Yorkists to flee, and for a few heady months, Henry VI was once again England’s king. Edward IV quickly rallied his supporters, though, and on April 14, 1471, he again overthrew Henry.

Fortescue had landed in England full of hope that very day, ending his long exile. The bitter news of Henry’s defeat was followed a few weeks later by the final crushing of the Lancastrian forces at the Battle of Tewkesbury. The Yorkists permitted neither Henry VI nor his son to live to threaten their power again. With the Lancastrian cause thus irretrievably shattered by their deaths, Fortescue, who had been captured at Tewkesbury, soon made his peace with the triumphant Yorkists. His reputation for wisdom and honor made his support valuable to them. He recognized reality and let himself be persuaded to write a defense of the legitimacy of Edward IV’s title to the throne, disavowing his earlier works to the contrary. In return, he was pardoned and his estates were restored to him. He retired to private life and to a death, in Ebrington, Gloucestershire, as obscure as his birth. The last documentary evidence of Fortescue being alive dates from May, 1479.

Fortescue’s life spanned some of the most violent decades in English history. He saw ruthless and powerful men subvert the laws, intimidate and corrupt officials, and reduce the royal government to impotence. The bloodshed and disorder of his age had a powerful effect on him, shaping the ideas about royal government that he put into his last important book, apparently written in the years just before his death, The Governance of England (1885).

With a keen awareness of the close relationship between wealth and political power, he strongly recommends in The Governance of England that the Crown recover its lost riches and keep this wealth under its own control. The king, he argues, should have at least double the disposable income of any of his people, lest an overmighty subject become strong enough to challenge him. Fortescue also advises that a wise king will lessen the power of the nobles and decrease his own dependence on them by choosing men of proven integrity and talent to advise him, rather than let the great barons dominate his council. The king should also regain control of patronage, directly giving offices and commissions to men chosen by and loyal to himself, instead of allowing the barons to distribute these plums. Many of the policies followed by Edward IV and Henry VII, as they rebuilt the crumbling edifice of English monarchy at the end of the fifteenth century, are strikingly in tune with Fortescue’s advice, though it is doubtful whether they were consciously using his work as a model.

For all his recognition of the need for a strong king to keep order and secure the property and tranquillity of his subjects, Fortescue was far from recommending absolute monarchy. Indeed, his chief importance in the history of English political thought comes from his insistence on the limited nature of royal authority. His constitutional ideas were spelled out most completely in two Latin tracts: De natura legis naturæ (wr. 1461-1463, pb. 1864; English translation, 1980) and the better-known De laudibus legum Angliæ (wr. 1470, pb. 1537; Learned Commendation of the Politique Lawes of Englande , 1567).

In these works, Fortescue divides monarchies into two types. One, for which France is his model, is characterized as dominium regale (absolute monarchy). Here, what pleases the king has the force of law; the bodies and possessions of his subjects are completely at his disposal. England, he states with pride, is not under the heavy hand of such an unlimited ruler. It is an example of the second type of monarchy: dominium politicum et regale (limited monarchy). England’s kings, he insists, were bound to observe the laws and customs of their kingdom. Indeed, he points out that English judges had to swear not to give judgments that went against existing laws, even if the king himself commanded them to do so. In addition, English kings could neither make laws nor tax their people on their own authority. The consent of Parliament, Fortescue maintains, was necessary for laws or taxes to have validity.

Significance

Fortescue occupies a significant place in the transition from medieval to Renaissance England. His concern for workable solutions to actual problems and his ability to draw on his own direct experience of the institutions and the practices of his day are modern characteristics not often seen in the minds of fifteenth century thinkers. Most important, his demonstration that the kings of England were limited not only by law but by the decisions of Parliament as well is regarded as a milestone in English constitutional thought. His De laudibus legum Angliæ was translated into English and published no fewer than seven times in the sixteenth century, with three more editions appearing in the seventeenth. Particularly during the crucial constitutional struggles of the seventeenth century, the opponents of the Stuart kings frequently referred to Fortescue in developing their arguments in favor of the prerogatives of Parliament. He stands as one of the fathers of the English concepts of limited monarchy and parliamentary power.

Bibliography

Burns, J. H. “Fortescue and the Political Theory of Dominium.” Historical Journal 28 (1985): 777-797. A rather complex discussion of the way in which Fortescue used the Latin term dominium and its significance in his thought. Some familiarity with Latin is necessary to understand this article.

Chrimes, S. B. Lancastrians, Yorkists, and Henry VII. London: Macmillan, 1964. A good, brief introduction to fifteenth century England by a master scholar, particularly strong on government.

Clark, Linda, ed. Authority and Subversion. Woodbridge, Suffolk, England: Boydell Press, 2003. Anthology of essays originally presented at a conference on the struggle between the houses of Lancaster and York in fifteenth century England. Includes illustrations, map, bibliographic references, and index.

Fortescue, John. De laudibus legum Angliœ. Edited by S. B. Chrimes. Cambridge, England: Cambridge University Press, 1942. Reprint. New York: Garland, 1979. This modern edition of Fortescue’s most important work has both the Latin text and an English translation. Chrimes’s lengthy introduction is extremely helpful on Fortescue’s life and works, including De natura legis naturœ, for which as yet no adequate English translation has been published. This book also contains a splendid preface by Harold D. Hazeltine on Fortescue’s place in the history of English jurisprudence.

Fortescue, John. The Governance of England: Otherwise Called, The Difference Between an Absolute and a Limited Monarchy. Edited by Charles Plummer. Oxford, England: Clarendon Press, 1885. Reprint. Union, N.J.: Lawbook Exchange, 1999. This is the only acceptable modern edition of the work by Fortescue. Unfortunately, the text has been kept in Middle English rather than modernized, so most readers will find it slow going. Plummer’s introduction, though, contains a very fine biographical sketch of Fortescue and a clear discussion of his ideas.

Gross, Anthony. The Dissolution of the Lancastrian Kingship: Sir John Fortescue and the Crisis of Monarchy in Fifteenth-Century England. Stamford, Lincolnshire, England: P. Watkins, 1996. Set of three interrelated essays, together with a substantial introductory essay, on Fortescue’s life and career. Attempts to understand the political instability and civil wars of the period as a function of genuine philosophical differences between competing theoretical principles of government, and not merely as the Machiavellian maneuverings of self-interested nobles hungry for power. Includes illustrations, bibliographic references, and index.

Hicks, Michael. The Wars of the Roses, 1455-1485. New York: Routledge, 2004. Detailed history of the military campaigns of the Wars of the Roses, and the reasons behind them. Includes nine strategic maps, illustrations, bibliography, and index.

Hinton R. W. K. “English Constitutional Theories from Sir John Fortescue to Sir John Eliot.” English Historical Review 75 (1960): 410-425. Presents Fortescue’s ideas in the context of the development of English constitutional thought.

Lander, J. R. Government and Community: England, 1450-1509. Cambridge, Mass.: Harvard University Press, 1980. Excellent background on the England of Fortescue and its problems. More detailed than the work by Chrimes cited earlier, particularly strong on social and cultural history.

Shephard, Max Adams. “The Political and Constitutional Theory of Sir John Fortesque.” In Essays in History and Political Theory in Honor of Charles H. McIlwain, edited by Carl Wittke. Reprint. New York: Russell and Russell, 1967. Once past the debatable claim about Fortescue having been a representative of the rising middle class and its socioeconomic interests, the reader will find a clear and coherent discussion of Fortescue’s basic ideas.

Skeel, Caroline A. J. “The Influence of the Writings of Sir John Fortescue.” Transactions of the Royal Historical Society 10 (1916): 77-114. Though dated, this article has the most-thorough discussion available of the ways in which Fortescue’s successors used his concepts. Particularly good discussion of the seventeenth century.

Wilkinson, Bertie. Constitutional History of England in the Fifteenth Century (1399-1485). New York: Barnes and Noble Books, 1964. An extremely detailed discussion of the political institutions of fifteenth century England, how they worked, and the theories behind them.