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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Alter fume time longer he alarms the b'rench Kiivj; by telling him of Edward's late
dccljt.'ition in I'ar'i.unent, annoiuuing his refolution to invade France in perfon with a large
arn.v ; tw j'tcvcnt whicli c.tlaniit\ , Louis i. tuld how lie ma\' keep l'Al\'..;rd employed at
hon;c, by iKComir.j^ himfilf t!ic aggreHor, tur, with even a finall army, he would fo encourage
tlic 1 .;)ncjfliii:i!i. that they would fpeedily drive Fdv. ar^l away, and rertore his mailer, and
then only could 3 Iirting peace I'c made between the two kingdoms; for means might
l>c found to induce Edward to fulimit quietly to what he could not help. We
arc not told what tliefc were, but Iiis plan may Lave been that which was afterwards
ai5lually made the fubje(5t of an AcT: of ]-'arIiament ilunng 1 L'nry's renewed reign, namely,
to allow the Crown, on fiilure of Henry's heirs male, to go to the Houfe of York, felting
afide for this purpofe the daughters of the Houfe of Lancarter; for b'ortefcue had written
ap.d argued in " De Natura" againll the fucceilion of women to " fupreme govern-
ment." He afks to be allowed to lay before Louis himfelf, or before fbme one in his con-
fidence, other more fecret matters which it would not be prudent to commit to writing.



' Iloliiifhed, A. D. 1468, iii. 290.
F



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34 ^^f^ ^f '^^'' y^h^i Forte [cue.

None of thefe produftions have been preferved, but the tollowing notice of them is given
from the Imperial Library in Paris: —

A. D. 1470.

Le Chancelher Dangleterre a bailhe ung grant memoire declaratif des droiz que le roy
Edouart pretend a la couronne Dangleterre, et apres a la couronne de France ; et par le quel
en oultre il monftre que le dit roy Edouart ne peult aucune chofe rcclamer es dites couronnes
de France et Dangleterre, et quil ny a aucun droit par les moyens quil recite et declaire on
dite memoire le quel eft en forme de livre. Cell devers Monfieur le Chancelher.

Apres ung autre memoire affez longues, ou il repilogue en brief leffeft et fubftance du
dit grant memoire, en y adjouftant les moyens par les quelz il luy femble que pax perpetuelle
fe peut bien faire entre le roy et le royaume de France dune part, et le 1 jy Henry et le
royaume Dangleterre dautre; et en quoy le dit roy Edouart fe coullendra, vueille ou non, et
quil neil: poffible au dit roy Edouart de faire paix perpetuelle entre les dits deux royaulmes,
et que fe de fa part il avoit fait fi ne pourroit elle tenir; le quel memoire contient douze
grans articles.

Subfequemment bailie ung autre memoire, affez brief, on quel il declaire que on pa le-
ment dernierement tenu en Engleterre ee roy Edouart a promis a la communitc du royaulme
quil fera groffe armee pour venir en France, et quil y viendra en pcrfonne, fur quoy le dit
Chancelher efpere demonftrier moyens par les quelz le roy Dangleterre fera tellement
trouble que le dit roy Edouart nofera partir du royaulme, et quil naura argent foutii int
pour la defpence quil fauldra faire pour la dite armee.

II entend auffi monftrer les moyens par les quelz le roy legierement drsjettera le loy
Edouart du royaulme Dangleterre, et remettra fus Ic roy Henry, fans grant armee et fans
grans fraiz. ;

II dit oultre quil aurera moyens par les quelz paix perpetuelle fe pourra bien faire entre
les deux royaulmes de France et Dangleterre.

Dit avecques ce quil y a autres chofes plus fecretes jacoit-ce' quelles ne ioient pas de plus
grans poix qui neft ja befoing mettre en efcript, et quelles vallont mieulx dides de bokhe
a caufe des ennemiz et contredifteurs de la dite matiere, des quelles il revelera au roy ou a
fes commis quant le plaifir du dit feigneur fera.

Item, i! y a ung autre grant memoire contenant fix articles, dont on premier article le dit
Chancelher expofe que, concurrens enfemble le confeil du roy et de la royne D:,ngleterre, il
femble audit Chancelher, par les moyens quil ouvrira, le mariage le fera entre ^e prince de
Galles et la fille du conte Waruch. Par le moyen du quel mariage le dit conte de Waruch

' Sic m MS.



n,. - '



Zy//I' oj Si?' yo,h/i Fortefctie. 35

et fes iimys demoureront en feurte, ct aura le dit coiite ic principal gouvernement on roy-
aiilnic ; ct ijue par la favour dc luy et des amys et loyaulx fubgietz du roy 1 Icnry, la royne
ct le prince pourront avoir plus legiere entree dedans le royaulme.

Scconiiemcnt, le dit Chaiicellier efpere trouver nioyens par les quelz il declairera par
quoy le roy Edouart fe contentra et afleurera, et dont paix perpetuelle fe pourra plus feure-
nient faire entre les dits royaulnies.

Tiercenient, il efpere trouver moyens par les quelz leftaple des laines Dangleterre ie fera
eii France, foit ou a Rouen, a Caillaiz, ou ailleurs, a grant prouffit des Francoys et des
Angloys, et fans quil prejudice au roy ne au royaulme de bVance.

Quartement, le dit Chancellier fait ouverture que les Angloys auroient libertiz a Bour-
deaulx, a Bajonne, au prouffit des deux royaulnies de France et Dangleterre, comnie les
marchans de la Hance ont a Londre, les quelz ont ung aldrcment qui ell: du confe 1 de la
ville avecques les autres aldremens, et a la garde de lune des ports de la ville, la ou il peut
entier et faillir de la dite ville quant il leur plaira.

Ouindement, il dit quil croit c|ue fe le roy fait aucunes defpcnces en ces niatieres que
legierement elles pourront eftre recouvrees au moyen dung proces que Richart Henon,
Angloys pourfuit en la court de Parlement, mais que le rov lui veuille donner faveur.

Dit apres le dit Chancellier que les dits chofes defllis dits pourront fortir bon efTeft, mais
quelles ne foient point revellees, affin quelles ne veingnent en fufpecion des ennemiz du roy,
fon maiftre, et que icellui Chancellier ou autre follicite devers le roy ou fon confeil les chofes
dclTus tlits. Cur il doubte fi les chofes elTioient revellees, que les ennemiz du dit roy Henry
lie fe troiivafTent plus tors cpie lui tievers le roy, au grant dommaige du roy et de la royne
l).ii!gletcrrc, fi niaillrefTc. arr-n, a Vi^t^l'

Vxx JKiiAN l'"oKTtsci;uE, Clicvallicr, Chancellier Dangleterre.

The 8l»ovc il(X-urncnt is written by a contemporary hand upon a llngle fhcet of paper
without watermark. It appears to be of the year I470.

It would fccin that by this time Louis was thoroughly alive to the neceffity ot ilirring
up difcord among tlie KngliHi, to prevent them from interfering with his Ichemes. lie
probably never meant to do more than this, and therefore defires Clarence and Warwick,'
with their ladies, to be hofpitably entertained at their landing place, and invites them to his
Court at Angers and Amboife. Queen Margaret, upon hearing of their arrival, repairetl likrwile
to Amboife with the Prince, and we find that Fortefcue accompanied them, and took a forward
part in the negotiations with Louis. He laid a memorandimi betore the French Governn e:it,
as the foregoing State paper fliows, inviting the King to join Margaret's advilers in bringing



Lingai'd.



r' III'






:i Tj;1nj



■'■■ '-"3'



36 Lije of Si?' JoLvi Fortefcuc.

about a marriage between the Prince of Wales and the Lady Anne Neville, Warwick's
daughter, repreienting " that by means of iiich marriage the faid Earl of Warwick and
his friends would be fecured, and the faid Earl would have the chief management of the
kingdom of England, and that with his fupport, and that ot the loyal fubJeLls of King
Elenry, the Queen and Prince would have more ready entrance into their kingdom, and
thus would a peace, firm and lading, be fecured between the countries." Margaret had now
met Warwick, the chief author of all her misfortunes, and the greateft enemy oi" her caule.
Their common Intereft, however, foon reconciled them to aft together, and Louis uncouraged
the union. The match fo much defircd by 1^'ortelcue was agreed to, and " tirlT: to
begm withall," fays Holinfhed,' " for the fure foundation of their new intreatie, Edward,
Prince ot Wales, wedded Anne, fecond daughter to the Earle of Warwick, which
ladie came with her mother into l^Vance." Thus " the brother of King "idward became
brother-in-law of the Lancaftrian Prince, and the Earl ot Warwick was :qually allied to
both houfes."-

The other terms of this reconciliation were thele:' that the Duke of Clarence and the
Earl of Warwick lliould endeavour to rellore Menry to the throne ; and that the Oi cen
fhould promile', with an oath, to leave the government ot the kingdom in their hands du, ing
the King's life, or the minority of the Prince his fon, a concelfion, as we have leen, iec( m-
mended by Fortefcue.

Louis promifed to furnifli feme money and troops, and to convey Warwick to England
with his fleet.

Sir John at this time mull: have become fanguine of fuccefs, tor he lays propofals be.ore
the King of France, on matters of detail relating to trade between France and t'.rgl:. nd,
propofing that a market for Englith wool fliould be eiLibliihed at Rouen or Calais, ai d tliat
Englifh merchants at Bourdeaux and Bayonne fliould have the fame privileges that the City
of London had granted to Flemifli traders — namely, the right to appoint an aldermani, and
the keeping of one of the city gates. This alfo is referred to in the State Paper. .

The march of events now became rapid. Warwick landed in FIngland unoppoleJ by
Edward, who had gone to the North to quell a rifing there — proclaimed Henry VJ, and
had reached Nottingham unoppofed, and with an increafing force, when E.dward, alarmed by
the defeftion of a part of his army, fled from the kingdom, and crofled to Fiolland. ^Var-
wick and Clarence entered London in triumph on the bth of Odober (1470), releaied Henry
from the Tower, and replaced him on his throne.

There was great joy among the exiles when they heard of this fudden revoli tion. Louis
ordered public thankfgivings and rejoicings, and Margaret was received in Pai is as Oueeii
of England. It feems Ikange that flie and tlie Prince fliould not have at once joined the

' Hoi. iii. 295. ■■' Rapin, i. 60S.



Life of Si?' yoIi?i Fortcjcue. 37

reflored King. She did not, however, eml)ark at Harfleur until tlie a4th of March, when
Edward, with a fmall force raifed in Holland,' had already re-entered the kingdom at
Ravenfpur. The popular tide had turned, and the treacherous Clarence had gone over
to his brother with i 2,000 men.

On Eafter Sunday, the 14th of April, the armies of the two parties met at Barnet, and
the Lancaflrians, after a bloody fight, were entirely defeated, Warwick himfelf was flain,
his brother alfo, and almoft all the leaders, and the re-inllated Henry was taken prifoner,
and once more lodged in the Tower.

it was on that fame Ealter Sunday that Margaret and the Prince, after nearly three weeks
fpent in the voyage, landed at Weymouth, and Sir John l<'ortefcue with tlieni. Their difmay
on hearing the overwhelming news was great ; but they were cheered by the arrival of the
Duke of Somerfet, and Jafpar Tudor, Earl of Tembroke, who held out hopes that Ed vard
might ftill be efFeiflually oppofed, and it was decided to proceed at once to Exeter," thn )ugh
the weftern counties, where their friends were ftill confiderable in numbers.

A ::i:.v^ r.:vcr d'.i.rppo'.ntnier.t to S.r j^'lm U\.\\\ tluU v, iv.cri lie \\.;s f.iied to mrt"er ..n
landing in England can hardly be imagined. When he left the French fhorcs, the caufe
for which he liad fo long fufFered and laboured appeared to be fecured. Henry had Ijeeii
for fome months rertored to his throne, his rival was a fugitive from England, and his rival's
brother, and Warwick " the king-maker," were in arms for the Red Rofe. But when he
reached Weymouth all this was changed. Elenry was again a prifoner, Clarence with his army
had deferted to the enemy, a great battle has been fought and loft, and Warwick was killed.

His heart may well have funk within him, and it is not furprifing that his firll: impulfc
was to advile a rettnn at once to b'rance.^ It was, however, as we have feen, otlurwiie
determinci.1. The final overthrow v>as Hill to come, and the venerable Chancellor was once
more to mingle in a blooily fight. The llury may be tuld in the grajihic though quaint words
of an old chronicle, preferved by Leiand. Alter marching un(jppt)fed tl;rough Somerlet and
Glouccllcrlhire, " Prince Ed\sMrd and his holl came to 'I'ewkelbury, and pitched his field
by Severn."

" In the year of our Lord 1471, and the eleventh year of King Edward, Edward Knig
fought witli Prince Edward, Henry the Sixth's fon, at Tewkeiburv, the 4th of May, and
King Edward won the field. Edmund Duke of Somerfet and Sir Hugh Courtenay fied
from Prince Edward, and fore weakened his field, yea and utterly loft it. There was fiaui
Prince Edward, crying on the Duke of Clarence, his brother-in-law, for help. There were
fiain alfo Courtenay Earl of Devonfhire, the Lord John of Somerfet, the Lord Wenlock, Sir
Edmund Hampden, Sir Robert Whitingham, Sir William Vaux, Sir Nicholas Hervey, S:r
John Delvis, Sir William Fielding, Sir Thomas Fitzhenry, Sir John Lewknor.



Lingard, v. 2)0. '' Luland, Coll. ii, jjOj. ' Kapin.



J. 3d3

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i: *(!:;lfri






38 Life of Sir Jo/ui Foj'tcjcuc.

" Thefe were firil: pardoned by King Edward, againlt whom, entering a church with his
fword drawn in TewkeiLury, a prieft brought the Sacrament agalnlt him, and would not let
him enter until that he had granted his pardon to them that follow : — the Duke ot Somc.fet,
the Lord of St. John's, Sir numphey Audley" (and twelve more); " all thefe when they
might liave efcaped tarried in the church, trufting the King's pardon, from Saturday to
Monday in the morning, when they were taken out and beheaded.

" After the field of Tewkeflniry, Qiieen Margaret, Prince Edward's wife the fecond
daughter of the Earl of Warwick, the Countefs of DevonHiire, dame Catarine Vaus,
were taken ; and thefe men of Name were taken and not flain, Sir John Forteicue, Sir
John Saint Lowe, Sir Henry Roos, Thomas Ormond, Dodior Mackerel, Edward Fulforde,
John Parker, John Baffet, John Walleys, John Throgmorton."'

We do not know wliy Fortefcue was fpared, — perhaps the conqueror Edward
refpeded his age, or his appetite for blood may have been fatisfied by the number of
previous viftims more acftively engaged in the aftual conflid:, in which ib many ot Fortefcue's
fellow-exiles fell. His unhappy matter. King Henry, was murdered at night in the Tower
on the ;il1: of May, the day before Edward's return to London tVom Tewkefimry in
triumph, with Margaret a prifoner in his train, who remained a captive for five years,
when flie was ranfomed by King Louis of France, and died in that country in 14:: 2.

Sir John's imprilbnment was not of long continuance. According to a trac.iti(.n, ftili
current on the fpot, he was foon releafed, and ordered to remain at Ebrington. He was no
longer formidable to Edward after the deaths of Henry and the prince his fon, nc r after
thefe events was there any one but the reigning ibvereign to claim the allegiance of
Engliflimen, who had univerfally fubmitted to the new dynall:y. It is not tlurefore
furprifmg either that Edward fhould be willing to pardon him, or that Fortefcue fhould
feel that he might without any impropriety or incontiftency become his " true liijgeman."
It was not long before he was received into favour, his pardon being granted under the
Broad Seal of Edward, the Fourth, dated at Weil:minfter the 13th of OcTiober, a.'). 147 i.
This document, which contains a declaration that it is by authority of Parliament,
was extant not many years ago, Mr. Incledon, the compiler of " Stemmata FortJfcuana,"
an MS. vol. belonging to Lord Fortefcue, written in 1795, there Itating that he liad
feen it.

Fortefcue was upon this forthwith re-appointed a Privy Councillor, this fad being
mentioned in his 'trac^ called "A Declaration on Writings from Scotland.'" lidward
had fet him free, pardoned, and retlored him to the Council, withciir any unufual
conditions. But before he gives him -back his lands and manors, he requires the old
lawyer to argue ' for ' his hereditary right to the crown, as he had before done againtl it,

.' Leland's' Colk-iflanea, by Ilearne, vol. ii. p. J05. '^ See pos(.



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Life of Sir fohji Fortcfcue. 39

and in behalf of that of King Henry. Lord Campbell, in his " Lives of the Chief
Juftices," thus accounts for the impofition of thefe diftateful terms: —

" One good deed Chief Juftice Billing did which fhould be recorded of him, in advifiiig
Edward the Fourth to grant a pardon to an old Lancallrian, Sir John Fortefcue. But for the
purpofe of reducing this llluftrious judge to the reproach of inconfiftency, which he knew
made his own name a bye-word, he impofed a condition that Fortefcue fhould publifh
a new treatife to retute that v\'hich he had before compofed proving the right of the Iloufe
of Lancafter to the throne." '

In his " Latine Booke," which he was now to anfwcr, the " De Natura Legis Natura;,"
he had defcanted upon the reafons why a woman fliould not reign as a fupreme ruler,
drawing largely, as was the cuftom ot his time, upon Holy Scripture to prove what they
had in fa6l never touched upon or confidcred, and what the author of " De Laudibus ' muil
have well known to be a queftion of expediency only, and not oi" abftraft right or
wrong.

He had got together paffages from the Bible, and the Fathers, to fliow that the man
was ordained to be above the woman, and that therefore no woman ought to reign over
man; but in tlie "Declaration" he ingenioufly dilcovers his error, and fees that fuch
paffages as that in Genefis, " Thou fhalt be under the power of man, and he fhall be
thy lord," ought to be differently explained — " which words," he fays, " fpoken to that
woman, was, as I thoo wrote, fpoken to all kind of woman, as the words then fpoken by
God to the firft man was faid to all mankind. This matter ye now defire that I will
fo declare as the King our Sovereign Lord be not harmed in them in his titles of
Lnglaiul or of I'Vancc — fo, as to tlie firit point, I hope to find not difficult, for our Lcrd laid
not in his forefaid judgment that a woman fliould be under the jiower and lordlhiji ot all
men, or ot many men ; but he faid indifferently or indeterminably that flic iliould be under
the power and lordfhip of man, whicli is true if flie be under the power and lordfliip of any
man J and that every woma!i is under the power and lordlhip of lome one man (which is all
that Ihe is cited unto by the forefaid judgment in Genelis) may not be denied, for every
woman is under the power and lordfhip of the Pope, which is a man, and the Vicar of
Chrifl, God and man. Wherefore the forefaid text of Genefis, or anything by me deduced
thereof, may not prove that a woman may not reign in a kingdom of which the king hath
no fovereignty or temporality, fithen fhe abideth always fubjecl to the Pope ; and by the
fame reafon it may not hurte the King in his titles to his forefiid two realms."

He thus fhortly and eafily difpofes of, without ae'tually contradifting, his own former
long and laboured treatife " on the other fide," and accepts the claim of Edward as defcen led,
though in the female line, from Lionel, Duke of Clarence, Edward the Third's fecond
fon, as better than that of the Plantagenet Kings, who defcended in the male line from
John of Ghent his third fon.



v.;.,:!



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There remained to be got rid of a queftion of f:iCl. Fortefcue, in his " J^efence of the
Houfe of Lancafter," had allerted that Philippa, daughter to Lionel, Duke of Clarenee,'
through wliom the claim of the Houfe of York arofe, had never been acknowledged by her
lather, he now explains that he made that Itatement in ignorance of certain records which,
on his return to England, had been for the firll time (howed him ; " by which records it
clearly appeareth that the forefiid Phillipe was daughter, and lieir to the forefaid Duke of
Clarence, and to Elizabeth his Wife, becaufe that flie and the Earl of March, her hulLand,
had livery in the Chancery of all the lands of the Duke."

It may well be doubted whether I'^ortefcue really had any ll:rong opinion on the queftion
of tile right ot females to reign. lie had argued well and ingenioufly, according to the
notions of his time, againft that right, as a lawyer for his client, becaufe he did all that he
could to fupport Henry on the throne, he being, as he frys, "no Judge, but i partial man
to him, tor whofe favour he made the arguments," that is, one fmcerely defiring to fupport
Henry's rule ; and afterwards, when he was writing as a fiill more " partial man " on th-;
oppofite fide, that is to lay, fulfilling the condition of his refloration to his ef-fates, he
efcapes from his former arguments by a device which he mull have laughed at in fecrct
as childifli and almoft comical.

No one who has read his outipokeu language in " De Laudibus," when he repeats again and
again the maxim that Kings of England mull not make the laws, but muil govern according
to them, and that laws to be binding on the people mull; have the people's confent, can doubt
that he was ready to accept heartily, I'o far as right went, either Henry, or Edward, or an/
fovereign, when once the conlent of the nation had been deliberately and decidedl /
exprefletl in his favour.

He fays, " The King is appointed to protect his fubjeds in their lives, properties, and
lav^s, for this very end and purpufe he has the delegation of power from the people, and the
has no jull: claim to any power but this."

Again, " It is plain that if Kingly power did not originally proceed from the people, the
King could liave no fuch power rightfully at all."

Nor did Fortefcue change his opinion or his language refpeellng the kind of kiiiit;ly
government which was the beft for a people to live under. He writes as fVongly upon it
under Edward the Fourth as he had done in the time of his predecelTor. For example, he
fays in his lateft work, that " the Dominium Politicium et Regale began by the Defire and
Inftitution of the people of tiie Prince," and adds, " Blelfed be God, this l.ai d is ruled
under a better law, and therefore the people thereof be not in penury, nor then Ijv hurt in
their perfons, but they be wealthy, and have all things necefTary to the lullenanct, of Nature.
Lo, this is the fruit of Jus Politicum et Regale under which we live.'"



Lingaitl, V. 217. - Dc Dornijiio, pp. 14 - 4-



Liife of Sir Johfi Forte/cue. 4t

However fuperficial may have been his anfwer to liis old arguments, it was a complete
retractation of them, and fatlsfied the King's advifers, fo that he had now only to prefent his
petition tor the reverfal of his attainder, which was as follows: ' —

To THK Kyng dure Sovkrayn Lord: In the mooit humble wyfc (heweth Liiito yourc noble
grace, your humble fubget and true Liegeman John Fortefcue Knyght, which is, and ever (lial be
duryng liis lyf, youre true and teithful Subget and Liegeman, Soverayn Lord by the grace of God ;
howe be it the fame John is not of power, nc havoir to do youre Higaes fo good fervice as his hert
and wille wold do, lorlomoche as in youre Parlcment holden at Weitminiler the fourth day of
November the firit yere of youre rnoolf noble reigne, it ordeyncd, denied, and declared, bv auctorite
of the fame Parlement, that the faid John by the name of John Fortelcue Knyght, amonge other perfons
fliuld ftond and be convitted, and attaynted of high treafon, and forfeit to you Soverayn Lord and
youre heires, all the Caftelles, Maners, Lordfnippeb, Londes, Tenementes, Rentes, Services, 'ees,
Advoufons, Hereditaments, and Pod'e/Tions, with their appurtenances, which he had of aitaie of
enheritaunce, or any other to his ufe had, the thirtieth day of December next afore the firil: yere of
youre mooft noble reign, or into which he, or eny other pcrfone or perfones, feofleez to the ule or
bchofe of the fame John had the fame thirtieth daie lawfull caufe of entre within Eiiglond, Irelond,
Wales, or Caleis, or the Marches therof ; as more at large is conteyned within the lame Ailte
or Aiites.

Fleale it youre Highnes, forafmuch as youre faid Suppliaunt is as repentaunt, and forrowfuU as
eny creature may be of aJl that which he hath doon or committed to the dilplcafuje of youre flighnes
contrarie to his duetie, and liegeaunce, and is, and perfeverantly iFal be to you Soverayn Lord, true,
feithfull, and humble fubget and Liegeman, in wille, word, and dede ; of youre moolf habundaunt
grace by th' advis, and aflent of the Lordes Spirituell and Femporell, and the Comens, in thii youre



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