John Fortescue (judge)

For other people of the same name, see John Fortescue (disambiguation).

Sir John Fortescue
A portrait of Fortescue by William Faithorne published in 1663 inscribed "Sr John Fortescu Kt Lord Cheife Justice & Lord Chancellor of England vnder King Henry ye Sixth"
Chief Justice of the King's Bench
In office 25 January 1442 – Easter term 1460
Appointed by	Henry VI
Preceded by	John Hody
Succeeded by	John Markham
Personal details
Born	c. 1394 Norris, North Huish, Devon, England
Died	1479 (aged 84–85)
Resting place	St. Eadburgha’s Church, Ebrington, Gloucestershire, England
Nationality	English
Alma mater	Exeter College, Oxford

Arms of Fortescue: Azure, a bend engrailed argent plain cottised Or. Motto: "Forte Scutum Salus Ducum" ("A Strong Shield is the Salvation of Leaders")

A drawing of Fortescue in anachronistic 17th-century dress with an oversized Great Seal of England, from the Legal Portrait Collection of Harvard Law School Library

Sir John Fortescue (c. 1394 – December 1479) was the Chief Justice of the King's Bench of England and the author of De laudibus legum Angliæ (Commendation of the Laws of England, first published posthumously around 1543), an influential treatise on English law. In the course of Henry VI's reign, Fortescue was appointed one of the governors of Lincoln's Inn three times and served as a Member of Parliament from 1421 to 1437. He became one of the King's Serjeants during the Easter term of 1441, and subsequently served as Chief Justice of the King's Bench from 25 January 1442 to Easter term 1460.

During the Wars of the Roses, Henry VI was deposed in 1461 by Edward of York, who ascended the throne as Edward IV. Henry and his queen, Margaret of Anjou, later fled to Scotland. Fortescue remained loyal to Henry, and as a result was attainted of treason. He is believed to have been given the nominal title of Chancellor of England during Henry's exile. He accompanied Queen Margaret and her court while they remained on the Continent between 1463 and 1471, and wrote De laudibus legum Angliæ for the instruction of young Prince Edward. After the defeat of the House of Lancaster, he submitted to Edward IV who reversed his attainder in October 1471. He died around 1479 and was buried in St. Eadburgha's Church, the parish church of Ebrington, Gloucestershire.

Early life

Fortescue was born around 1394 at Norris (or Norreys), in the parish of North Huish near South Brent in Devon, England, and educated at Exeter College, Oxford. He was the second son of Sir John Fortescue, who in 1422 was appointed captain of the captured Castle of Meaux, 25 miles (40 km) northeast of Paris, and his wife Eleanor (née Norris or Norreys). His eldest brother was Henry Fortescue, Lord Chief Justice of the Common Pleas in Ireland. The earliest surviving record of the Fortescue family relates to its 12th-century holding of the manor of Whympston, in the parish of Modbury, Devon.

Parliament

Fortescue was elected as a Member of Parliament for Tavistock (1421 to 1425), Totnes (1426 and 1432), Plympton Erle (1429) and Wiltshire (1437).

Legal career

During the reign of Henry VI, Fortescue was three times appointed one of the governors of Lincoln's Inn. During the Easter term of 1441 he was made one of the King's Serjeants, and on 25 January in the following year Chief Justice of the King's Bench, a position he held till Easter term 1460. As a judge Fortescue was recommended for his wisdom, gravity and uprightness, and he is said to have been favoured by the king.

He held his office during the remainder of the reign of Henry VI, to whom he was loyal; as a result, he was attainted of treason in the first parliament of Edward IV. When Henry subsequently fled to Scotland, he is supposed to have appointed Fortescue, who appears to have accompanied him in his flight, Chancellor of England. Fortescue referred to himself in this manner on the title page of De laudibus legum Angliæ, but as the King did not possess the Great Seal of England during his exile it has been suggested that the title was "nominal" and "merely illusory".

In 1463 Fortescue accompanied Queen Margaret and her court in their exile on the Continent, and returned with them to England in 1471. During their exile he wrote for the instruction of the young Prince Edward his celebrated work De laudibus legum Angliæ (Commendation of the Laws of England, first published posthumously around 1543), in which he made the first expression of what would later become known as Blackstone's formulation, stating that "one would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be condemned, and suffer capitally". On the defeat of the Lancastrian party he made his submission to Edward IV, who reversed his attainder in October 1471.

Marriage and progeny

John Fortescue married Isabella Jamys, daughter and heiress of John Jamys, by whom he had the following progeny:

• Sir Martin Fortescue (died 1472) who married Elizabeth Denzil (or Densil/Densel), the daughter and heiress of Richard Denzil of Filleigh, Weare Giffard and Buckland Filleigh and other manors, all in Devon, in 1454. Filleigh later became the principal seat of the senior line of the Fortescue family, where the Palladian mansion Castle Hill was built c. 1730. Sir Martin Fortescue was the ancestor of the Earls Fortescue.
• Robert Fortescue, who married Elizabeth Trenchard.
• Maud Fortescue, who married Robert Corbet.
• Elizabeth Fortescue, who married Edward Whalesbrough.

Death and burial

The exact date of Fortescue's death is not known, but is believed to be shortly before 18 December 1479. He was buried in St. Eadburgha's Church, the parish church of Ebrington, Gloucestershire, which manor he had purchased, and after which his descendants took the name of their title Viscount Ebrington, today used as the courtesy title of the eldest son and heir of Earl Fortescue. A painted stone effigy of John Fortescue, wearing his scarlet robes of office with collar of ermine, exists within the church, against the north wall of the chancel within the communion rails. Above it was erected in 1677 by Col. Robert Fortescue (1617–1677) (eight times his descendant and the second son of Hugh Fortescue (1593–1663) of Filleigh) a mural monument with a biographical inscription in Latin. A smaller tablet is affixed below stating that the monument was repaired in 1765 by Matthew Fortescue, 2nd Baron Fortescue. A brass plate below states: "Restored by the Rt Honble. Hugh, 3rd Earl Fortescue, AD 1861".

Legacy

John Fortescue's description of England's mixed monarchy as a dominium politicum et regale (a political and regal kingdom) has been profoundly influential in the history of British constitutional thought. During the 20th century, the earlier portrayal of Fortescue as a constitutionalist has come under pressure from legal and constitutional historians. Scholars of literature have taken an interest in Fortescue's contribution to the development of English prose, and in his role as a Lancastrian writer. More recently, Fortescue's constitutional thought has been reassessed and his Lancastrian affiliation has been challenged.

To this day the John Fortescue Society is joined by students of law at Exeter College, Oxford.

Works

The title page of Fortescue's De laudibus legum Angliæ (Commendation of the Laws of England, 2nd edition, 1660)

Fortescue's most significant works were composed in Scotland and France, where the Lancastrian party had taken refuge, between 1463 and 1471. Taken together, Opusculum de natura legis naturæ et de ejus censura in successione regnorum suprema (A Small Work on the Nature of the Law of Nature, and on its Judgment on the Succession to Supreme Office in Kingdoms, c. 1463), De laudibus legum Angliæ (1468–1471), and a work written in English around 1471 which was later published as The Difference between an Absolute and Limited Monarchy (1714) and as The Governance of England (1885), provide the first discussion of the political and conceptual underpinnings of the common law, besides commenting on England’s constitutional framework. His works, in particular the masterly vindication of the laws of England De laudibus legum Angliæ, circulated in manuscript in late medieval England and were cited by the leading thinkers of the early Tudor period, among them the printer and playwright John Rastell and the lawyer Christopher St. Germain. De laudibus legum Angliae did not appear in print until about 1543 in the reign of Henry VIII as Prenobilis militis, cognomento Forescu [sic], qui temporibus Henrici sexti floruit, de politica administratione, et legibus ciuilibus florentissimi regni Anglie, commentarius (Commentary on Political Administration and on the Civil Laws of the Most Flourishing Kingdom of England, of the Very Noble Knight, surnamed Forescu [sic], who Flourished during the Reign of Henry VI). It was subsequently reprinted many times under different titles.

The Difference between an Absolute and Limited Monarchy, based on Fortescue's c. 1471 manuscript, was published in 1714 by a descendant, John Fortescue Aland. In the Cotton library there is a manuscript of this work, and its title indicates that it was addressed to Henry VI. However, many passages show plainly that it was written in favour of Edward IV. A revised edition of this work, with a historical and biographical introduction, was published in 1885 by Charles Plummer under the title The Governance of England.

Fortescue also wrote a number of mostly topical works that addressed the political conflict during the Wars of the Roses. Among the surviving works are the pamphlets De titulo Edwardi comitis Marchiæ (The Title of Edward, Earl of March), Of the Title of the House of York, Defensio juris domus Lancastriæ (Defence of the Rights of the House of Lancaster), Replication ageinste the Clayme, and Title of the Duke of Yorke for the Crownes of England and France, as well as the treatise Opusculum de natura legis naturæ et de ejus censura in successione regnorum suprema already mentioned. Two further works, Declaration upon Certayn Wrytinges Sent oute of Scotteland and Articles Sent to Warwick have been discussed by recent scholarship. All of Fortescue's minor writings appear in The Works of Sir John Fortescue, published in 1869 for private circulation by another descendant, Thomas Fortescue, 1st Baron Clermont.

A list of Fortescue's works and selected later editions follows:

The title page of the first English translation of Fortescue's De laudibus legum Angliæ, entitled A Learned Commendation of the Politique Lawes of England (1567)

• . Later editions:
  • . (According to the English Short Title Catalogue (ESTC), further editions were issued under this title in 1573 and 1599.)
  • . (According to the ESTC, further editions were issued under this title in 1660, 1672, 1737, 1741 and 1775.)
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• . (According to the ESTC, further editions were issued under this title in 1719 and 1724.) Later edition:
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References

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 This article incorporates text from a publication now in the public domain: 

Further reading

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•  – discusses Fortescue's role in the succession crisis between the Houses of Lancaster and York.
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Legal offices
Preceded by Sir John Hody	Lord Chief Justice 1442–1461	Succeeded by Sir John Markham