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- MP for Tavistock, May 1421; Dc 1421; 1423; 1425. MP for Tetner, 1426; for Plympton Erle, 1429; for Totnes again, 1432; for Wiltshire, 1437. Governor of Lincoln's Inn 1424-26, 1428-30. Controller of the stannaries of Cornwall and Devon, 5 May 1430-22 Jul 1432. "Chancellor" to Henry VI during the latter's exile.
From the History of Parliament (citation details below):
After the battle of Northampton in July 1460 the fortunes of Fortescue inevitably followed those those of the house of Lancaster, to which he remained constantly loyal. In October following he was consulted in Parliament as to the legality of the duke of York’s claim to the throne, a question on which he expressed his opinion more fully in The replication made agenste the title and clayme by the Duke of Yorke to the Crownes and Reaumes of England and France, composed shortly afterwards. It was early in February 1461 that, having hastily made provision for his wife, Fortescue joined forces with Queen Margaret, and probably even took part in the second battle of St. Albans. Certainly, he was present at the battle of Towton on 29 Mar. and the skirmishes at Ryton and Brancepeth (Durham) on 26 June; and accordingly he was attainted in Edward IV’s first Parliament six months later. His forfeited estates were for the most part granted to John, Lord Wenlock.
Fortescue spent the following two years in Scotland, acting as 'chancellor' and councillor to Henry VI, and it was probably there that he wrote De Natura Legis Naturae and other tracts on the question of the royal succession. In March (?) 1462 Henry gave him letters of credence to Louis XI of France, his mission being to ask support for the exiled Lancastrians. He crossed from Scotland to Sluys with Queen Margaret in July 1463, and they eventually settled at the castle of Koeur in St. Mighel, where they lived in extreme poverty. Fortescue spared no effort to procure assistance from the kings of France and Portugal in order to bring about Henry VI’s restoration and, calling himself ‘Chancellor of England’, he wrote several memoranda on the subject for Louis XI’s attention. During the years of exile he devoted himself to the education of Edward, prince of Wales, and composed De Laudibus Legurn Anglie and The Governance of England. He was a leading negotiator in the talks conducted at Angers in 1470 between King Louis and the earl of Warwick, thus promoting the momentous alliance between the earl and the queen; and on 14 Apr. 1471, after Henry VI’s readeption, he sailed for England with Queen Margaret and Prince Edward. Proclaimed a traitor by Edward IV a week later, he was captured at Tewkesbury on 4 May. Fortescue’s fidelity to the Lancastrian cause was unshaken so long as Henry VI and his son were alive, but after their deaths he sought a general pardon from Edward IV and even offered him his services as a councillor. Nevertheless, it was not until October 1473, after he had written A Declaracion upon certayn wrytinges, refuting his earlier arguments about the royal succession, that he was permitted to present a petition to Parliament for the reversal of his attainder and the restoration of his estates.
From the Oxford Dictionary of National Biography (citation details below):
With the possible exception of Sir Thomas More, Fortescue is the English common lawyer who until the days of Coke and Bratton had most to say of importance to a reading public outside his own profession. He was the author of nine literary works still extant, and at least five others are known to have been lost (one of them a book of devotion); there is one conjectural work, and in addition the possibility that Fortescue was responsible for the Dialogue between Understanding and Faith, a translation of Alain Chartier's Traite? de l'esperance. There are also four attributed items, probably spurious. Fortescue was fluent in both Latin and French and had an easy familiarity with the standard apparatus and ideas of the late medieval scholar, including the Bible, Aristotle (quoted very frequently), Vincent of Beauvais, Boethius, St Augustine, and St Thomas Aquinas. In some cases he had the texts at first hand, but more often he used one of the compendia of knowledge that were in common circulation. He also knew works by Poggio Bracciolini and Leonardo Bruni. Less surprisingly, Fortescue had a close acquaintance with Roman and canon law. His mental world was also deeply informed by his common-law background, and some of his thinking can be paralleled elsewhere in the profession.
Ten of Fortescue's pieces were Lancastrian propaganda tracts: De titulo Edwardi comitis Marchie; Of the Title of the House of York; Defensio juris domus Lancastrie; A defence of the title of the house of Lancaster, or, A replication to the claim of the duke of York; Opusculum de natura legis nature et eius censura in successione regnorum suprema; the ascribed Somnium vigilantis, or, A Defence of the Proscription of the Yorkists, and lost works on the succession in English and Latin, a genealogy of the house of Lancaster, and a related genealogy of James II of Scotland. Of the extant works, De titulo was written not earlier than the coronation of Louis XI on 15 April 1461 and the remainder before July 1463. An eleventh political item is the refutation demanded by Edward IV, Declaration upon certayn wrytinges sent oute of Scotteland ayenst the kynges title to the roialme of Englond, written between the defeat at Tewkesbury and 6 October 1473.
The Yorkist claim to the crown rested on descent from Edward III through the female line, and Fortescue based part of his propaganda case on the history of various countries, which showed that women did not inherit or transmit rights to the crown. He also pointed to the strength of the Lancastrian title by prescription. However, his principal argument (worked out in detail in Opusculum de natura legis nature) was that women were excluded from ruling by natural law, a principle that had also been specifically endorsed by scripture. When it came to recanting these views, the historical precedents presented Fortescue with few problems. He trumped the natural law difficulty by arguing that since 'ther is now noo kingdome in erthe of Cristen men of which the Kynge is not subjecte [to the pope] also welle in temporaltes as spirituelles', the Yorkist claims via the female line did not violate the principle of ultimate male supremacy (Works, 535). The unanswerable Lancastrian claim by prescription was quietly ignored.
Fortescue's propaganda skills saved his neck in 1471, but the interest of history is in his remaining three works, which deal with English government and the constitution. De laudibus legum Angliae, written in the last years of Fortescue's exile (1468–71), ostensibly to instruct the young prince of Wales, is an exposition of the advantages of English common law over the Roman law of the continent, and contains a uniquely valuable description of the inns of court and the legal profession. The Articles Sent from the Prince to the Earl of Warwick (December 1470–March 1471) is a short blueprint for a council to control the senile Henry VI. In the years immediately after Tewkesbury, elements of this were incorporated in a second and much more substantial assessment of the problems facing the country, written in English but known from the title of its first chapter as De dominio regale et politico (alternatively The Difference between an Absolute and a Limited Monarchy).
Fortescue's analysis of the problems of his day has had a significant influence on later historical interpretations of the period. He argued that poverty was the root cause of the collapse of royal authority, a poverty caused by the alienation of the royal estate. This had destroyed the king's freedom to act, and had denied him the means to maintain an image of magnificence and to exercise a proper degree of patronage. The beneficiaries had been 'ouer myghtye subgettes'—a memorable term perhaps coined by Sir John (Fortescue, Governance, 127). The landed wealth of such magnates allowed them to eclipse the power of the king and to focus loyalty on themselves. Fortescue's answer was to re-endow the king by a parliamentary resumption of land grants, together with a one-off subsidy to buy the loyalty of those who lost by it, coupled with an exploitation of the custom duties. He also advocated a significant reduction of the influence of the magnates on the council, and their replacement by salaried officials, and particular caution over the future exercise of patronage.
Beyond this analysis of the problems of his own day, Fortescue's importance lies in his writing on the nature of political authority. He distinguished three kinds: regal dominion, political dominion, and a combined form: regal and political dominion. Fortescue took the original distinction from St Thomas Aquinas, who had postulated the third form to accommodate the government of imperial Rome which exhibited both regal and political features. Sir John's originality was to realize that other states fell into that category, including England. Its king ruled by hereditary right, and had full regal authority over his subjects. His duty was that imposed by the law of nature on every king—to do justice. On the other hand he was not absolute. His power derived from the body politic, and the laws he had to administer were only such as he and the people assented to. What is more, that limitation on regality was institutionalized in parliament, and enforcement was by judges sworn to uphold those laws, not the king's will.
Fortescue's authority on constitutional law was widely recognized in his own day and increasingly thereafter. This particularly applied to the De laudibus, of which the first printed edition appeared in 1545–6, and eight further editions were published before the century was out. Interpretation, however, became increasingly anachronistic. When Sir John wrote that in England 'the regal power is restrained by political law' (Chrimes, 27), he had in mind the contrast between the absolutism of French kings and English kings who exercised royal authority within political parameters. However, by the seventeenth century the maxim was being regularly used to justify the imposition of constitutional restrictions on the crown. Fortescue was substantially cited by the lawyers representing John Hampden; Edward Coke said that the De laudibus was 'worthy to be written in letters of gold for the weight and worthiness thereof' (Coke, report no. 8, fol. xiv). After the civil war the whigs interpreted the term dominium politicum et regale as a constitutional formula for the protection of liberty, while in 1778 the philanthropist Granville Sharp claimed Fortescue's authority for colonial resistance to the absolutist pretensions of the Westminster parliament. In the next century interest in Sir John became more scholarly. A respectable edition of the judge's writings was published in 1869 by a distant descendant, Thomas Fortescue, Lord Clermont, supported by an archive-based family history, and in 1885 Charles Plummer produced a modern text of the De dominio regale et politico under a somewhat misleading title, The Governance of England. In 1942 an authoritative edition of the De laudibus legum Angliae by Stanley B. Chrimes set modern scholarship on the soundest of bases.
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Nielsen Hayden genealogy
- Bef 1479
[2, 3]