John Fortescue.

The works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) online

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Regaliter ...... 450

Chap. III. Hereafter be fchewyd, the Frutes of Jus Regale., and the Frutes of Jus

Pdh'uum et R.gdle . . . . .451

Chap. IV. Hereafter ys fchewyd hou the Revenuz of Fraunze be made grate . 453

Chap. V. The harmes that come of a Kyng's Povertie . . . 454

Chap. VI. Ordynaunces for the Kyng's Ordenarye Chargys . . . 455

Chap. VII. The Kyngs Exrraordynarye Chargys .... 457

Chap. VIII. Yf the Kyngs Lyvelood fuftyce nott, his Subgettys aught to yt

fufi-'ycyent ...... 458

Chap. IX. Hereafter be fchewyd the Perilles that may come to the Kyng, by over

myghty Subgetts . ..... 459



Chap. X. How that the Crown may be beft eiufowed . . . .

Chap. XI. Hereafter is fchewyd, what of the Kyngs Lyvelood gevyn away, may bell: be

takyn ageyiie ......

Chap. XH. Hereafter ys fchewyd, what Harme would come to Kngloiid, if the Common

thereof were Pore ....

Chap. XHI. Onely lacke of Harte, and Cowardife, kepyii the Frenchemen from Ryl'yng
Chap. XIV. Hereafter is fchewyd, why it nedith that ther be a Refumpcion, and a CJraun

of Goods, made to the Kyng
Chap. XV. How the Kyngs Conceil, maybe bell Chofyn and Eflablyfchyd .

Chap. XVI. How the Romaynes profperyd, whiles they iiad a grete Councele
Chap. XVII. Here followen Advertifements, for the gcvyng of the Kyngs Offices
Chap. XVIII. Advertfyements hou Corodies, and Pencions may beft be gevyn
Chap. XIX. How grete Good wyll growe, of the forme endowyng of the Crowne
Chap. XX. Advertifement for making of Patents of Gyfts

Example what good Couns.olYLE helpithe

The twenty-two Rightwisnesses belongynge to a Kynge

A Dialogue between Understanding and Faith

Of the Title of the House of York

Defensio Juris Domus Lan'castriyE

Translation of the foregoing

A Defence of the House of Lancaster

The Declaracion upon ^VRYTINGEs sent oupe of Scotteland

Legal Advice to Purchasers of Land

The Comodytes of Englond

A List of the known Works of Sir John Fortescue









Legal Opinions and Judg.ments of Sir John Fortescue

H )


. \k




. ;. ,<".)

■1 y


The Same Translated into English.

Introduction .......

The same in English .......

Chap. L Here follows the defcent of the faid Edward, by which he pretends a title to

the crown of England.

Ch.-> 1. Objedlion is raifed to this pretended title.


Ch.^p. II L This is declared by ieveral examples.


Chap. IV. A fecond example from the aits of the Englifh after the Conqueft.


Chap. V. The fame is confirmed by the law ut England in like cale.



Chap. VI. It is confirmed alfo by the like right in the kingdom of France, and ot Spain
alfo, the kings whereof, like the kings of England, were from ancient
times anointed.

Latin ......

Englifh ......

Chap. VII. Inconveniences which would follow on the oppofite fuppofition.

Latin .....

Englifh ......














V :.,,■.:)

xxii* Si(ppU?ne?it to (Jo/ite?its.

CnAl>. VIII. Argument againft the aforelaid pretcndt-d title, ili<iwing that Pliilippa was not

the daughter of Lionel,

Latin ...... 67*

Knglidi ...... b'/*

Chap. IX. Argument proving that hiple of fuch right, if he could have had any, liad been

made by legitimate prefcription.

Latin . . . .68*

Englifli . . ' J'S'

Chap. X. Confirmaticui taken from Auguftine, " De Civitate Dei," as it is quoted in

the book which is called " Compendium Alorale."

J^atin ...... 69*

Englifh . . . . .84^

Chap. XI. Argument fliowing that it cannot be truly faid thai Edward is chol .-n by the

Lord to be Iving of England by a private difpofition of the Lord.

Latin . . . .71*

Englifh . . . . . .86*

Chap. XII. Incidental argument fliowing the enormous offence of the inhabitants of
England who affiled the ufurper Edward.

Latin . ... . . . 72*

Englifh ...... 87*

Chap. XIII. Argument founded upon that principle of law that by renunciation and con-
trary adt lapfe of right is made.

Latin ...... 72*

Englifli . . . .87*

Chap. XIV. Argument proving that by abjuration he was excluded from his right, if he
could have had any.

Latin . . . . . 73*

Englifli . . . . . . I 88*



'N prcicnting to the dcfccndants of Lord Chancellor Fortefcue
this firft complete colledtion of his Works, it is right to explain
that, although I have undertaken, as a necellary part of the
tafk, to prepare for the prefs fuch of them as now appear for
the firft time in type, I am well aware that it is only by one well veried in the
legal and hill;orical antiquities of England and of the Continent in the fifteenth
century, that the operation can be properly and efficiently performed. Such an
one, however, not having come forward during the long period which has clapfed
fmce Fortefcue's time, and the manufcript copies of the unprinted works being
rare, and, in fome cales, unique, I refolved, if I could do no more, at leaft
to fave thofe that remain trom the extinftion to which they have been
expofed, by printing a few copies; fome of them to be diftributed among luch
members of the Fortefcue Family as may be ready to accept them, others to be
placed in the chief public and private libraries of the country, there to await
the annotations of fome more learned editor.

To enfure, as fiir as poffible, correftnefs in the text, collations between
different MSS. have, in every cafe that admitted of it, been made by experienced

The tranilation of the De Ndtuj-d Legis Naturce, the molt important of the
hitherto unprinted works, by my brother, Mr. Chichefler Fortefcue, will be

''■■■li /^DO

■■■'■■ ! f.r

'<:;.; jjM

xxiv Preface.

found to reprcient fuithlully, in excellent Englii],, the meaning and fpirit of the
original; while his careful editing of the Latin has cleared up many obfcurities
in the text, and in the quotations with which it abounds.

The materials for the Life of Sir John Fortefcue are, unfortunately, moft
Icanty ; the few pages devoted to it in this volume containing all the tafts which
I have been able to get together calculated to throw light upon his remarkable
and eventful career.

The extrads from the Year-Books, giving his opinions and judgments when
Chief Juftice of England, have been put into Englilh by Mr. Edward Maunde
Thompfon ; and this tranllation, as well as the original Normal -French, has
been revifed by Mr. Alfred Horwood, of the Middle Temple, a gentleman who
has, probably, more acquaintance with thefe old reports than any other living
perfon ; and to whom I wiili to exprefs my acknowledgments and thank, jor
his generolity and kindnefs in volunteering to undertake this very
talTc, and in carrying it through, even to the correcting of the flieets as they pall.-d
through the prefs.

I am indebted to many perfons for affiilance in obtaining materials, both tor
the Life and for the Colledion of Works, among whom I would efpe. iady
mention Mr. Richard Sims, of the Britilh Mufeum, the Rev. }. Orlebar Payne,
the Rev. Jofeph Stevenfon, of the Record Office ; Sir Thomas Phillipps, BArt.,
of Middhehill; the Rev. Profeffor Stubbs, of Oxford; the Rev. EL O. Coxc^, of
the Bodleian; the Rev. Canon Collyer ; and Mifs Gregor, of Trewarthennick.

Ot Sir John's two portraits in this volume, the firft is copied from Faithoie's
print, engraved in 1663 ^^'r Waterhoufe's " Fortefcutus Illuilratus ;" the prelace
to that work Itating that Faithone worked from an old portrait belonging to the
then polleiror of Salden. That likenefs, and all others in the fame altitude, are
probably copied from the original contemporary pidure at Calllehill, of Imall
fize, viz., 16 by 12 inches, painted on panel.

The fecond portrait has the appearance of a younger man than the former;

Preface, xxv

the right hand holds a book, with the hnger between its leaves ; it is now
engraved for the Inrft time from a pi(!^ture on canvals, not well executed, I'lippoled
to be of about the year 1600, belonging to Mr. Fortefcue Turville, of Bofworth
Hall, Leicelterlhire, who very obligingly lent it to me for this Work. Mr.
Turville inherited it from the Fortefcues of Salden, where it hung in the time of
Sir John Fortefcue, Queen Elizabeth's Chancellor of the Exchequer. '



February bth^ 1869.


Portrait of Chancellor Fortescue, from 1* "aithorne's Print

Ebrington Manor-House .....

Signature of the Chancellor ....

Ebrington Church .....

The Chancellor's Tomr .....

Ornamented Initials from MS. of De Natura

Facsimile of a Page of Cambridge MS. of De Laudieus

Facsimile of De Dominio in hand\\'riting of Sir Adrian P^ortescue

Facsimile of a Page of MS. of Understanding and F.mth .

Facsimile of a Page of MS. of The Declaracion

Portrait of the Chancellor from the Bosworth Piciure (Part II.)

to face






The Chancellor's Seal .......





^'^^^^^•^IR JOHN FORTESCUF., Chancellor to King Henry the Sixth, wa^ the
^.,:1;' '-.^ • " V fecond fon of Sir John l"'ortefcue of Winftone, in South Devon, who was
'\ ^t_ preleni: at the liattJe of Agincourt in 1415, and who was afterwards
/cr^-^s. j'j-V\yi??T^ appointed by Henry the 1^'iith governor uf the fortrefs of Meaux in the
^^^^^^^^i Province of La Brie in France. He was younger fon, by Fdiicabetii,
daughter of Sir John Beauchamp of Ryme in Dorfet, of William Fortelcue of Winllone,
twelfth in defcent from Sir Richard le Fort, furnamed Fort-efcu, or Strong-fhield, v/ho
came from the Cc'itentin in Lower Normandy — that cradle of Anglo-Norman families —
with William the Conqueror, and fought in the battle of Haftings. Several pedigrees have
made the Chancellor to be grandfon of Sir John the Governor of Meaux, and fon of Sir
Henry 1^'ortefcue Chief Juftice in Ireland ; but they are certainly in error, becaufe a ca-cful
compariion of the periods during which the three jicrions in queftion held their public
appointments will fhow that it is fcarcely pollible that Sir 1 lenry and the Chancellor' could
have ftood to each other in the relation of father and fon, and becaufe ilill flronger, and
what for the prefent purpofe may be called conclufive evidence is found in a contemporary
document,' vvliere it is incidentally mentioned that " Flerry Fortelcue, late JulTiicc in
Ireland," was the fon of John h'ortefcue, and that he had a brother Richard ; and this
laft being alfo brother of the Chancellor, it follows that he and Sir Henry were likewife

' Prince, Worlhius of Devon.

'' Procitilinys in Clianctry, reign ot Elizabeth, and from Richard II. to Kichard III. 3 vols, folio. iS jO.
Vol. ii. p. .xviii. See the whole deed in the Iliftory ut" the I'ortci'ciic I'amilv

^ There is beiidcs a deed of 14 Henry VI., quoted in the Hio". Britt., vol. iii. 19S6, which is a grant liy
Henry Fortelcue to John his brother, and to Ilabella, the wife of laid John, of all the melliiages, lands, and
tenements of John Fortelcue, /ii(b(-r uf Jaid He)uy,'in 0\ercombe, Kflbrd, and .\IUon, in the parilh of 1 lollioiiyhton.
in Devonfhire.

4 Life of Sir Jolm Fori ef cue.

Of the place of his birth there is no pofirivc mention. Prince' fays that it was " moll
likely Norris, near South Brent in Devonlliire." This was a feat belonging to his mother,
who was daughter and heirefs of William Norris of Norris, where h^r anceftors had been
lettled tor eight generations.'

Neither do we know the precife time of his birth, although by a pafliige in his work,
" De Laudibus Legum Anglia?," it is poilible to get within three or four years of it.

He there fays, in defcribing the degree of Sergeant-at-Law,^ " Ouare ad Statum et Gradum
talem, id eft fervlentis ad legem, nullus hucufque afTumptus eft qui non in prfcdifto'generali
legis ftudio fexdeclm annos ad minus antea complevit," and in the chapter before he fays
that the ftudents are, tor the moft part, youths. Now, Fortefcue was made a Sergeant in
Michaelmas Term, 14JO, and confequently muft have become a ftudent of the law, at
Iboneft, in the year 14I4, lo that it he was then eighteen years old, he was )orn in 1396,
if twenty, as is perhaps more likely, then 1394 was the year of his birth.

Bifhop Tanner fays that he was educated at Exeter College, Oxford, and he was called
to the Bar at Lincoln's Inn.'' Of the manner of his life and tludies we have no accoui t,
unlefs his defcription of law-ftudent life in his Treatife be taken from his own experiem c.
In that cafe P'ortefcue was one of an hundred or more young men, all " gentlemen by bli :h
and fortune, ipending, at leaft, eight and twenty pounds a year each,"^ (an allowance equ il, )y
Hallam's computation, to more than ^.'400), with a fervant to wait upon him, and joining in
the ftudies and amufements thus detailed. " Botii in the Inns of Court and Inns of Chaiicery
is an academy where the iludents learn fmging and all kinds of mufic, dancing and other
fuch accompliftiments (which are called Revels), as are fulted to their quality, and fuch as
are ufually praftifed at Court; out of term the greater part apply themfclvci to the ftu ly
of the law. Upon feftival days, at'ter the fcrvices of the church are over, they ciipl jy
themfelves with ttudy of hift:ory, ficred and profane. There everything which is good and
virtuous is to be learned; all vice is dll'couraged and baniflied, fo that knights, barons,Mnd
the greateft nobility of the kingdom often place their children in the Inns of Court, wqt fo
much to make the laws their ftudy, as to form their manners, and to keep them from vice.
Bickerings and difturbances are almoft unknown. The only punidiment is expulfion from
the Society, more dreaded than imprifonment and Irons by criminals, becaufe he who is
turned out of one Society is never received into another; thus there is conftant harmony,
and the greateft frlendllilp and freedom of converfation."

' Prince, Worthies of Devon. '' Pole, Colleftions for Devon, p. 300.

■' De L.iudibus, Ed. Amos, p. 261, clia|j. 50.

"' Campbell, i. 371. Tanner, Bib, Britt., London, 174S, p. ^93, Biog. Britt. iii. 2087.

■' Hallam, Middle Ages, chap, ix,, where he eflimates the value ol money now at lixteen tinub that in the
time ot' Henry VI.

L,ifc of Sir yoJiu Fortcjcue. 5

This pidure, although it may be fonicwhat ovcrcoloured, i.iffcril)es a manner of life and
a fociety v/ell calculated to produce the profound lawyer, and the Chriftian ftatefman, which
this young law-lludent became, and whofe charafter this education of the Inns of Ci urt mull
have helped to form.

In the year ot Henry the Sixth, 1425, he was made a Governor of Lincoln's Inn;
next year again, and a tliirtl time in 1429, 7 Henry the Sixth. In the two firit entries' in
Dugdale's " Origines Judiciales," he appears as " Fortefcue Jimior," which looks as it his
elder brother. Sir Henry, was alfo a member of that Inn.

• Of his career, until he became a fergeant, nothing is told ; how foon or how late he
got into practice, by what means, or to what extent. It is likely that he took that degree
foon after his ftanding at the bar had qualified him for it, if we may judge by the number of
years he lived afterwards, and the date of his promotion, which was in Michaelmas Tern,
1430." Of the particulars of an invefliture witli the White Silk Coif, the badge of his ne v
rank, we have his own account : " The Lord Chief JulVice lyi the Common Pleas, by and
with the advice and confent of all the Judges, is wont to pitch upon, as often as he fees
fitting, {eL\i:\\ or eight of the difcreeter perfons, iuch as have made the greateil: proficiency in
the general Itudy of the laws, and whom they judge befl: qualified. At the time and place
appointed, thofe who are fo chofcn hold a fumptuous feaft, like that at a coronation, which
is to continue for feven days together ; neither fliall any one of the new-created fergeants be
at a lefs expenfe luitable to the iolemnity of his creation, than two hundred and fixty pounds
and upwards, whereby the expenies in the whole which the eight will be at will exceed three
thouiimd two hundred marks, to make up which one article is, every one lliall make prefents
of gold rings, to the value, in the whole, of forty pounds (at the leail) Englifh money."

" I very well remember," he fays, " that when I took upon me the f1:ate and degree of a
fergeant-at-law, my bill for gold rings came to fifty pounds."

He then proceeds to tell us how this large fum, no lefs than eight hundred pounds of
our prefent money, if we are to follow Llallam, was difpofed of.

" Each fergeant at the time of his creation gives to every prince of the blood, to every
duke, and to each archbifhop who fhall be prefent at the folemnity, to the Lord High
Chancellor, and to the Treafurer of England, to each a ring of the value of twenty-fix
fiiillings and eightpence; to every earl and bifliop, to the Keeper of the Privy Seal, Ui
each Chief Jufliice, to the Chief Baron of the King's Exchequer, a ring worth twenty
(hillings; and to every other lord of Parliament, to every abbot, and to every prelate
of dilHncftion, every worfiiipful knight there and then prefent, to the MalT;cr of the l^olls.

' Dugdale, Origines, p. 249 ; De Laudibus, chap. 50.

■^ Dugdale, Chron. Series, p. 61 ; Biographia Bntannica (but Fols, Lives ol the Judy
Michaelmas, 1429, tor the fergeant's creation). The Y'ear-Book may clear up this point.

f I

:,'V; ;;r!,1


6 Life of Sir John Fortcjcue.

and to every julVice, a ring to the value of one mark; to each Baron of tlie F,Kchequcr, to the
Chamberlain, and to all the great men at Court then in \vaitii,y on the King, rings of a lefs
value in proportion to their rank and quality, fo that there will not he the meanelt clerk,
efpecially in the Comt of Comnu.m I'leas, but that he v.'ill receive a ring convenient tor
his decree. Befules, they ufually make prefents of rings received of their friends ami

" They give alfo liveries of cloth of tlie fame price and colour, which are dillributed in
great quantities, not only to their menial fervants, but to kveral others, their friends and
acquaintance, who attended at the ceremony ot their creation."

It is probable that h'ortefcue's marriage took place during this period of his lite He
certainly was a married man in the end of 1435 O'' ^'-^'''y "'' '436, as appears by the Deed ot
14 Henry VI. already referred to, when " Ifabella, wife of faid John," is menrioned; and it
is likely that he had then been fo for fome two or three years, tor his only fon, Martin, who
died in 1472, left at his death a fon and heir agetl twelve years.

Sir John's wife was liabella Jamyfs, daughter and heirefs of John Jamyfs, Elquire, of
Philip's Norton, in Somerfct, on the borders of Wiltthire, near Bath. In the " I'atMit
Rolls'" of 21 Henry VI. is " an infpeximus and confirmation of a grant by the Trior of the
Carthufian order of Hinton (Hinton-Charterhoufe) to John Forteicue and Ifabella his wre,
and Margery, mother of Ifabella, of mefliaages in Philips Norton,"' the grant being daied
the Tuefday after the feaft of St. Hilary, 19 Henry VI. (i.e. January 14th to 2 iff, 1441,
St. Hilary's Day being on the 13th January), and the infpeximus bearing date Weflminfl ;r,
the lith of I-'ebruary, 21 Hen. VI. (1443)-

The document recites that the faid Ifabella was the daughter of Margery, who wa; wife
of John Jamyfs, of Philip's Norton. The eftate thus acquired remained in the Chancellor's
fltmily until it was fold, in the year 1725, to Mr. Frip, by Hugh Fortefcue, Earl Clinfon.'^
The Fortefcue arms may ftill be fecn in flone on a houfe in the village of Nortoi St.
Philip's.' By the fame lady he acquired lands in Wilts.^ Thus " John Fortefcue, Knight,
and Ifabella his wife granted by Deed, dated Nov^ 21, ZS l^^"- ^1. (HS^), to Robert
Brigge, the reverfion of a tenement at Bradford, Wilts." '

The ftatement made by feveral authors that the Chancellor's wife was Elizabeth,
daughter of Sir Myles Stapleton, is in error, that lady being the fecond wife of Sir
John Fortefcue of Punfbourne, fo given in an Inquiiition Poff-mortem taken at Royffon,
in Hertfordfhire, in July, 1501, upon the death of the faid Sir John, who .vas nephew

I Patent Rolls, Pi Il.n. VI., W. W. No. 34. The entire document is pivon in the Appendix to thi^ woil

'^ Letter to the Author from I'.arl Fortefcue, Nov. 6, 1866.

'■'■ Information from Mr. J.iclvfon, Librarian at Longlcat, AuguO, 186b.

^ Not.tiie and I'edigrees concerning the I-amily of the Fortefcues, lirit. Mus. Add. MS. 15.629, f. 62 .

l^ije of Sir yoh?i Fortejcite. 7

to the Chancellor, and died July 28, a. d. 1500. Elizabeth Stapleton was the widow ot Sir
William Calthorpc, Knight.'

The iniie of the marriage was an only Ton, Martin, ftyled m fome documents Sir
Martin, and at lead two daughters. Martin married, in 1454,' ILIizabeth, daughter and
heirels of Richard Denzile, Efquire, of Wear-Giffard, who inherited that property as well
as the ertates of Filleigh (now Caflle Hill) and Buckland-Killeigh, near Torrington. He
died before his father. Sir John's daughter, Elizabeth, was married, about 1456,' to
Edmond, fon of Thomas Whaleflnirgh, Efquire, of the county of Cornwall.

The other daughter, Maud, married Robert Corbet, fon of Sir Robert Corbet, a very
unfortunate alliance, as appears from what Blomefield, in his " Elilfory ot Norfolk," thus
relates :' —

" Maud, daughter of Sir John Fortefcue, Eord Chict Juftice, who had the Lordfliip of
Dunham Parva in the 33rd of Henry the Sixth (a.d. 1455), married Ivobert, fon or
Sir Robert Corbet. He forfook her, and re-married Lettice, daughter ot John Shirewood
of Coventry, and left ilTue by this Eettice, Robert and Alice. His hrft witc, Maude, from
whom he was never divorced, lurviving him, — upon his death Robert Corbet, Efquire, his
brother, fecond fon of Sir Robert aforefaid, made an entry into his lands as next and legal
heir ; but Lettice aforefaid having re-married Talboys, a fervant to Thomas Rotherham,
Archbifliop of York and Chancellor of England, Roger fued him in the Spiritual Court of
Canterbury, and Talboys procuring a prohibition, Roger appealed to Rome, and a fuit was
directed by Archbifliop Rotherham to Roger of ' ne exeat regnum.' Upon this Roger
was laid up in the Court two years, but being enlarged in the lal1; year of King Edward the
Fourth (1483), died prcfently after."

" It appears that Maud, the firft wife of Robert, had a jointure of twenty marks per
annum out of this manor. She retired, and lived in the Nunnery of Helveffon, in Bedford-
fhire, and died there."

After Fortefcue's promotion to be fergeant, the Year-Books are no longer filcnt con-
cerning him, but make frequent mention of his arguments.

His pradlice was large, and his knowledge of Englifli law confpicuous. He acTred upon
fome emergencies as Judge of Aflize, in which capacity he went the Norfolk Circuit in 1 440
and 1441 (18 & 19 Hen. VI.).

In the latter year, in Eafler Term, he was appointed a King's Sergeant ;■■ and when the

' Inq roll-niortem, 16 Men. VII., No. ,5, Hilt. Miis., and Notilia' .mil IVdigncs of FortLlluc I'iimily, \\n\ .
Mus. Add. MS., irom I'ctir lu Nl-vc, (Norroy.) and Bloineliidd's Norfolk, ix. 222. cd. 8vo.

'^ The niarriagL- fcttlcment, feun by the author of Stc-mmata FortL-fcuaiia, is d.itt-d Scpteiiihcr 10, 2ii
Hen. VI. (1454). , ^ Exchequer of Pleas, 34 lien. VI.

* Bloniefield's Nortblk, vol. ix. ]). 479 (Svo. edition).

'-' Dugdale, Chron. Series, p. 63. - Johannes I'orleleu ferviens Regis ad Legem. I'afeh. 19 Ikn. VI."

8 Life of Sir yohn Fortefcue.

death of Sir John Hody made a vacancy in the Chief Juflicefliip, he, without having paffed
through the intermediate rtep of a Junior Judge, was, on the 25th of January, 1442,
(20 Men. VI.), raifed to that high place.' Here his rejnitation as p great judge was foon
and permanently eflabliflied, and here he continued for more than eighteen years to pronounce
thofe judgments and expofitions of the hiws which are ftill quoted with refpeft.

The late Lord Campbell, a great admirer of Fortefcue, fays of him that " he difcharged

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