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Sir John Fortescue and the French Polemical Treatises of the Hundred Years War Author(s): Craig Taylor

Source: The English Historical Review, Vol. 114, No. 455 (Feb., 1999), pp. 112-129 Published by: Oxford University Press

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EnglishHistoricalReview

NOTESAND DOCUMENTS

SirJohn Fortescueand the FrenchPolemicalTreatises

of the Hundred YearsWar

BYthe Act of Accord of October I460, RichardDuke of Yorkwas named heir to the Englishthrone in placeof HenryVI's young son Edward.Thus parliamentimplicitlyacknowledgedthe superiorityof the Yorkistclaim to the throne;only the reluctanceto removean anointed king, and so to call into question the legality of the actions of the monarchs since the usurpationof 1399, prevented more radicalaction from being taken. Yet the subsequentbreachof this agreementby the Lancastrians,leadingto the deathof the Duke of Yorkat the battleof Wakefieldon 30 December I460,

justifiedthe seizureof the throneby his son Edwardin June1461 asrightful heir to the Crown.1 Sir John Fortescue took up the defence of the Lancastriansduring his exile with Henry VI in Scotland between April 1461and July I463. The famous lawyerproduced a number of polemical pamphletschallengingEdwardIV's title to the throne, of which just four survive:De titulo Edwardi comitisMarchiae; Of the Title of the House of

York;Defensio juris domus Lancastriaei;and ReplicacionAgeinste the

Then, either during his stay in Scotland or his subsequent sojourn in France,he wrote a lengthy treatisecalled the Opusculumde natura legis

referenceto the situation in either England or France.2

The Yorkistcase was based upon the premise that no 'ooth of feaute, homage or ligeaunce' and no 'Actes and Ordenaunces' might stand against the Yorkists'superior hereditary right to the throne 'grounded upon evident trouth and justice'.3 In I399 Richard II had had no children and so his closest male relativewas Edmund Mortimer, Earl of

2. With the failure of the Lancastrian cause in 1471, Fortescue joined the Yorkists and produced

a retraction of his earlierwritings against Edward IV, the Declaracion Upon Certayn WrytingesSent Oute ofScotteland. These tracts are printed in The Worksof SirJohn Fortescue,ed. Lord Clermont (London, I869) [henceforward Fortescue, Works];note also variant passages in Sir John Fortescue, The Governance of England, ed. C. Plummer (London, 1885), pp. 353-6, and The Politics of

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I999 THE FRENCH POLEMICAL TREATISES II3

Edmundwasamerechildandroyalwardandsoposedno obstacleto the

to kyng Herrythe third'.This was almostcertainlya referenceto the

the succession'propterfatuitatem';if this storyweretrue,then Henry

deedthe heirto the throne,in directline fromHenryIII.Yet,asHenry was advisedin 1399,therewas no evidenceto supportthe tale. The Lancastrianstriedto maskthe weaknessof Henry'stitle by offeringa careful blend of a vague hereditaryright, election and conquest, reinforcedby anointmentwith the holy oil supposedlygiven by the VirginMaryto Becket;afterthe eventtheymaintaineda tactfulsilence on the matter. It is surprisingthat accordingto an apocryphalseventeenth-centurystoryHenryIV confessed:'Withwhat rightI got [theCrown]God only knows'.1

HenryVI. To this end he assertedthatthe Lancastriansnow hada just

was 'forcludedand barredby all lawesused amonge Kinges... and namelywithin the realmeof Englande,and alsoby naturallreason,to

claymethe Kingdomeof Englande'becausethe Yorkisttitle depended upon descentthroughwomen, RichardDuke of York'smotherAnne, and Philippa,daughterof LionelDuke of Clarence;and a title to the

thronecouldnot betransmitted awoman.HenryVIwasheirin through

directmale line from Henry III, as required'et jure et consuetudine Angliae', and so was the true king 'omni jure naturalidivino et humano'.3In addition,Fortescuealsoenlargeduponthe observationof

the Lordsin I460 thattheYorkistshadneverbeforepubliclyclaimedto be Lionel'sheirsandthatRichardof Yorkhimselfhadonlytakenup the

I. H. Nenner, TheRightto beKing:TheSuccessionto theCrown,1603-I714 (Basingstoke,1995), p. i. The Lancastrianclaimto the throneis discussedin detailin G. Lapsley,'The Parliamentary

Title of Henry IV', ante, xlix (1934), 423-50, 577-606; Fortescue, Works,pp. 64*, 524-5. Lancastrian diplomats claimed that their king's titles to the English and French thrones were too high a matter for them to discuss, an argument also used by the judges in Parliament in 1460: J. G. Dickinson, The CongressofArras, 1435: A Study in Medieval Diplomacy (Oxford, 1955), pp. I31-2,

143; RP, v.376a.

2.Fortescue, Works,pp. 68*-74*, 500-2, 509. He effectively countered his own argument based on prescription, when he argued in the Opusculum de natura legis naturae that lapse of time could not confirm anything which was not valid or right at its origin: Works,pp. I83-4.

3.Ibid., pp. 63*-64*, 73*, 505, 5II; Fortescue, The Governance ofEngland, p. 356.

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II4 SIR JOHN FORTESCUE AND February

of the Lancastrians,was the fact that Philippa was not the true child of Lionel.1

The claim that Philippa was illegitimate was an outright lie, but Fortescue's claims regarding the exclusion of cognates from the royal succession areharderto assess.As Fortescuelaterconfessed, in 'the lawes

of this londe . .. [one will] . . . lerne full lytell of the right of succession of kingdomes'. Yet a great deal of circumstantial evidence suggests a presumption that women and cognates could succeed to the throne, at least in default of direct male heirs. The common law certainly allowed both women and cognates to inherit fees simple, and the concern of the English nobility to prevent lands from passing out of their family

through the marriageof an only daughterwas partly responsible for the development of a new legal device, the entail.2 EdwardIII tried to settle the succession upon the direct male line by a charter issued in 1376, perhapsinspired by CharlesV's ordinance of August I374 on the French royal succession which the French historian Raymond Cazelles has described as the 'premiere loi constitutionnelle de la monarchie

frangaise'.Yet the English charter made so little impact upon public debate in the late Middle Ages that historians had no knowledge of its existence until its recent rediscovery.Certainly there is no evidence that Edward sought the approval of the community of the realm for this charter,unlike Henry IV when he entailed the royalsuccession upon his sons and their male heirs in June 1406; the new charterwas sealed with the GreatSeal, the seals of all the Lordsand of the Speakerof the House of Commons. Six months later this was repealedby Parliamentbecause the exclusion of any potential granddaughters was an unintended limitation upon them. By implication, females and hence cognates were regardedas capable of inheriting the English throne, whereas in France the events of I316, I322 and 1328 had set a secure precedent for direct male

succession only.3

Thus the burden of proof fell upon Fortescue if he wished to argue that a title to the throne could not be passed through a woman. He met this challenge with style: the Opusculum de natura legis naturae is arguablythe most complex and intellectually demanding discussion of royalsuccession written by any English or Frenchwriter during the late

I. Fortescue, Works,pp. 499, 67*-68*, 517-8; Fortescue, The Governance of England, p. 354.

2. Fortescue, Works,p. 532. For the entail, see J. H. Baker, Introduction to English Legal History (3rd edn., London, I990), pp. 303-7; K. B. McFarlane, The Nobility of Later Medieval England

(Oxford, 1973), p. 270.

3. For the French ordinance of I374, see Raymond Cazelles, Socite' Politique, Noblesse et Couronne sousJean le Bon et Charles V (Paris/Geneva, I982), pp. 579-8I; Jacques Krynen, ' "Le Mort Saisit le Vif". Genese Medievale du Principe d'Instantan6ite de la Succession Royale Fransaise, Journal des Savants (I984), 187-22I; Francoise Autrand, 'La Succession a la Couronne de France et les Ordonnances de I374', in Representation,Pouvoir etRoyaute'a lafin du MoyenAge, ed. Joel Blanchard (Paris, I995), pp. 25-32. Michael Bennett discusses the 1376 charter of Edward III in

'Edward III's Entail and the succession to the Crown, I376-1471', ante, cxiii (1998), 580-609. For

the Lancastrian attempts to entail the Crown, see RP, iii.525, 574-6, 580-3. I intend to discuss the question of female and cognate succession to the English Crown in a forthcoming article.

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Middle Ages. The scale of his achievement is remarkable,especiallygiven the short space of time during which he composed both his pamphlets and the largertreatise,and the intense political pressuresunderwhich he was working. Inevitably Fortescue drew much of his material from existing works such as Vincent de Beauvais's De morali institucione principis, which inspired his discussion of the origins of kingdoms. Yet none of these texts contained detailed discussions of the royalsuccession,

so it would seem that Fortescue derived his material from a previously unidentified source.1Throughout the Hundred YearsWar, some of the greatest French writers had discussed this question as part of their defence of the Valois monarchy against the English. During the fourteenth century, French writers addressed it both as parts of larger works of political thought, such as translations of Augustine's Civitatis dei and Aristotle's Politics, and in the remarkablelegal encyclopedia the Somnium viridarii, written by Evrart de Tremaugon.2 Then in the fifteenth century a series of polemical writers, most notably Jean de Montreuil and Jean Juvenal des Ursins, directly addressed the English claims in France.They drew upon the earliertexts but added, crucially, the famous Salic Law as a defence against the notion that women or cognates might succeed to the French throne.3 Historians have long recognized connections between the pamphlets of Sir John Fortescue and the lastgreatFrenchpolemical treatise,Pourcequeplusieurs,written in I464. Veikko Litzen suggested that either Pour ce que plusieurs was

I. For the sourcesused by SirJohn Fortescue,see the De LaudibusLegumAnglie,ed. S. B.

Presented to Edmund Fryde, ed. C. Richmond and I. Harvey (Aberystwyth, 1996), pp. 203-28.

3. I discuss the Salic Law in my forthcomingarticle '"La vraye loy des Francois":The Developmentof the SalicLawDuringthe HundredYearsWar',butalsoseeP. Viollet,'Comment

les femmesont ete exclues,en France,de la successiona la couronne',Memoiresde IlAcademiedes

C. Beaune, The Birth of an Ideology:Mythsand Symbolsof Nation in Late MedievalFrance

(Berkeley,I991), ch. 9 and A andB;K. andR. E. 'Noel de Friboiset laloi appendices Daly Giesey,

salique', Bibliotheque de I'Ecoledes Chartes, cli (I993), 5-36.

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II6 AND February

based upon Fortescue's writings or that the two writers had used a common source. Indeed both writers were almost certainly drawing upon the French polemical treatise Trescrestien,treshault, trespuissant roy written in 1446 by Jean Juvenal des Ursins, perhaps the most important French political theorist of the fifteenth century.'

At first glance the French treatises appear to say little of immediate relevanceto the English succession. At no point did Jean de Montreuil, Jean Juvenal or any of the other writers explore the specific rules governing the English royal succession in any way that might be useful for Fortescue; their arguments rested principally upon the notion that the Salic law should govern the French succession, irrespectiveof other countries.2 Fortunately for Fortescue, these French writers also used a number of theoretical arguments with universal relevance, which had been employed extensively before Jean de Montreuil adopted the Salic Law between 1409 and 14I3, and which continued to be used thereafter as an additional support for this problematic authority.As JeanJuvenal declared in Trescrestien, tres hault, trespuissant roy: 'Mais supposons qu'il n'y eust eu oncques constitution, coustume, usage, ordonnance ou Loy sallicque en ceste maniere ... regardonsse ce est chose raisonnable que une femme succedast et feust heitiere d'un tel royaulme'.3Within this section, Jean Juvenal offered the basic elements of a case against female and cognate succession that Fortescue first expounded in his pamphlets and laterdeveloped in the Opusculumde naturalegisnaturae.

The crux of the issue was to demonstrate that women were incapable of succeeding to the throne, and then to extend this prohibition to males claiming solely through females. In 1446 Jean Juvenal employed an argument against female succession which had not been used by any of the previous defenders of the Valois monarchy. He declaredthat reason and custom prohibited women from holding public office, 'carse seroit contre le droit natural qui ordonne que femme soit soubzjecte et non

I. P. S. Lewis, 'War, Propaganda and Historiography in Fifteenth-Century France and England', Transactions of the Royal Historical Soc., 5th ser., xv (1965), I9n, and Litzen, A War of Rosesand

Lilies, pp. 60-5. For Trescrestien, treshault, trespuissant roy, see Jean Juvenal des Ursins, Les dcrits

politiques de Jean Juvenal des Ursins, ed. P. S. Lewis (3 vols., Paris, 1978-93), ii.i-I77. The most accessible edition of Pour ce que plusieurs, which has enjoyed a number of different titles in

manuscript and published form, remains Pretensions des Anglois a la couronne de France, ed. R. Anstruther (Roxburghe Club, I847), pp. I-II7. References will be given to the Anstruther edition

and to Bibliotheque Nationale MS francais 5058, which is the base manuscript for my forthcoming edition.

2. Jean Juvenal argued that 'les manieres d'Angleterre et aultres royaulmes ne peuent lyer le royaulme de France', in Les ecritspolitiques, ii.45. See also Jean de Montreuil, Opera. II: L'oeuvre historique etpolemique, ed. N. Grevy-Pons, E. Ornato and G. Ouy (Turin, I975), pp. I66, 272-3.

3. Jean Juvenal, Les dcritspolitiques, ii.41-2.

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II8 SIR JOHN FORTESCUE AND February

and did rule because a queen did not have to carry out her tasks in person:she could delegate her powers to agents, just as a minor or an old man would have to. Yet like the French writers, Fortescue emphasized that women could hold public office only under the supervision of a man, which of course could not be the case for a kingdom without a superior,like Franceor England.1Thus Fortescuewas using arguments which had appearedin almost every late medieval French discussion of royalsuccession. Yetcertain phrasesdid especiallyecho the work of Jean Juvenal. For example, the Englishman declared that high offices like those of Constable or Marshal could not be administered by women,

mirroring Jean Juvenal's declaration that females could not hold the offices of 'bailly ou prevost'. Moreover, like Jean Juvenal, Fortescue justified this by citing the civil law maxim: 'Feminae ab omnibus civilibus vel publicis remotae sunt' (Digest, 50, I7, 2).2

In his pamphlets Fortescue highlighted another specifically male aspect of monarchy, the quasi-sacerdotalstatus of the king. This was demonstrated most clearlyby the coronation ceremony.The queen was anointed on a lower partof the head than a king, in token of the fact that she had a superior,and on the arms, because she was not to exercisethe power of her own will or bear the sword as the king did. But she could also not be anointed on her hands and so would be unable to cure

scrofula or bless the coins and rings that cured other illnesses such as

epilepsy. Moreover, women were incapable of exercising the regalian rights of a king because a woman could never exercisethe functions of a bishop.3 Such arguments had been a commonplace of fourteenth- century French discussions but were abandoned in the I370s by the Somnium viridarii, no doubt because the quasi-sacerdotalstatus of the king could be used to justify papal supremacy over the French Crown. Yetthe special religiousstatus of the king held enormous power for a less educated audience - as demonstrated by the importance ofJeanne d'Arc and the coronation of CharlesVII at Rheims in I429 - and the argument was invoked in the fifteenth century by a number of unofficial writers

remarkable observation that the English Crown was subject to the papacy, so that a woman might succeed to the throne because she would still be under male supervision: Fortescue, Works,

PP.533-5.

2.Fortescue, Works, pp. II6-8, 123. The story of Salphaad was also used by English writers in

support of Edward III's title in France: for example, John of Bridlington, in Political Poems and Songs Relating to English History ComposedFrom the Accession of Edward III to that of Richard II,

ed. T. Wright (2 vols., Rolls Ser., 1859-6I), i.I45-6.

3. Fortescue, Works,pp. 498, o58, 86*. Fortescue abandoned these arguments in the more erudite Opusculum de natura legis naturae, which after all sought universal rules ratherthan ones applicable only to Christian monarchies.

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Montreuil himself coined: a woman could not act as a 'pont et planche'.' In presentingthe same argument, Fortescuedid not cite the phrase'pont et planche', but reliedon a simple civil law maxim not used by any of the French writers: 'Nemo potest plus juris transferrein alium quam sibi competere dinoscatur'.2

Jean Juvenal demonstrated that this principle applied in France by arguing that French apanages were granted to the male line only, and that in default of direct male heirsthey would revertto the Crown. In the Opusculumde natura legis naturae, Fortescue cited not just this French practicebut also demonstrated that the principle of'pont et planche' was enshrined in English law, in the entail to the male line.3 As Lyttleton argued in his discussion of tail male in the Tenures,if the heir to lands held in tail male dies with only a daughter,'[il] est mort sauns issue male en la ley, entaunt quelissue de la fille ne puit conveyer a luy mesme le discent per heiremale, &c'. But of course the problem was that the entail was an imposed practicereplacingthe situation in a fee simple: was there any evidence that the English Crown had been entailed to the male line? In one of his pamphlets Fortescue did report that Edward III had explicitly restrictedthe succession to the male line. This may have been a referenceto the recently discovered charterof 1376, though this is far from certain, given that Fortescue noted Edward's restriction in the

context of an entirely fictitious parliamentarysession at which it was declared that Lionel Duke of Clarence had died without issue and

during which Edward'sdaughterspublicly renounced their claim to the throne. Certainly Fortescuedid not mention the efforts of Henry IV to entail the Crown on the direct male line in I4O6.4

Either way, Fortescue claimed that the exclusion of cognates was universallyrecognizedand even cited the fact that neither the Frenchnor Spanish crowns could be inherited through women, thus abandoning the Plantagenet claim to the kingdom of France.5 He repeated the

i.i6I; ii.i6, 23, 26-7, 50.

2. Digest, 50, I7 rule 54, cited in Fortescue, Works,pp. 66*, 506. In the Opusculum de natura legis naturae, he cited this rule, together with two other maxims from the same title, De diversis regulis

juris antiqui, Digest, 50, 17 rules 2 and I20, in Works, pp. I23, I25, I48. These maxims were widely known by English lawyers in the late Middle Ages: P. G. Stein, Regulae Iuris: FromJuristic Rules to

Legal Maxims (Edinburgh, 1966), pp. 147-8.

3. Fortescue, Works,pp. I24-5, 506, and Jean Juvenal, Les ecritspolitiques, ii.26. See P. Saenger, 'Burgundy and the Inalienability of Apanages in the Reign of Louis XI', French Historical Studies,

x(1977),I-26.

4.Thomas Lyttleton, Lyttleton, his treatise of tenures, ed. T. E. Tomlins (London, I841), i, ch.II, section 24; Fortescue, Works, pp. 517-8, and The Governance of England, pp. 353-4. Fortescue

certainly wished to imply that the royal succession was entailed in the male line when he noted that 'In cronicis ideo minime refertur, spreta nobili successione heredum masculorum linealiter per

sexum masculinum descendentium, successionem regnasse foeminarum'. See Works,pp. 74*, and for similar remarks regarding France, Jean Juvenal, Les ecritspolitiques, ii.44.

5. See infra, p. I24, n.2.

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