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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attended to than it is at prefent, and the Lms of Court, with their dependent focieties, were much more
like a univerfity than they are now. Li the 15th and i6th centuries the Luis of Chancery wicit in the
nature of fchools for the preparation of fludents for the Lms of Court, and a courle of probation in the
former was required before admiflion to the latter. Coke was a ftudent at Clift'ord's Lm before adimf-
fion to the Inner Temple. The Lms of Court direfted the courfe of lludy at thefe preparatory inns,
and appointed " readers," who delivered regular coinfes of lectures. " For the help of young Students
in every ot the Lines of Chancery," lays Stow,' *■' they do chule out of every Lm of Court a Reader,
being no Bencher, but an utter barrefter there of ten or twelve yeers continuance, and of good ;)roht
in ftudie." Theic readings were followed by " mootings,'' or debates on doubtful points of law, at the
conclufion of which the Reader fummed up the arguments, and gave his opinion. Thele readings were
fometimes publiflied, and among them were Callis's reading on the Statute of Sewers, and liacon s o.i



' Stuw'b London, book i.



I ■■' lOi



-!■:)



366* De NatU7\i Legis Naturcc. [part ii.

the Statute of Ufes. It would fecui that in thofe days ftudetits for the bar went tlirough a real
education, inftead of the eating of terms with which we ha\'e recently been content. It is fiir to fay
that the fyftem of legal education has been lately taken up by the Inns oi Court, who have already
done fomething, and have appointed a joint committee to deal with the fubjeiSt, from whom more may
be expe(51ed. There is an intereiting delcription ol the education given in the Inns of Chancery and
the Inns of Court to be found in the De Laudlbui Li-^uin Anglicc (c. xlvii., xlviii., xlix.), where the
"Chancellor" anfwers the queftion of the " Prince," why Civil and Canon Law orily, and not the
Laws of England, were taught in the Univerlities. " In majoribus Hofpitiis," he fays, " nequaquam
poteft fludens aliquis fuftcntari minoribus expends in anno quam oiitoginta fcutorum, et fi fervientem
libi ipfe ibidem habuerit, ut eorum habet pluralitas, tant(j tunc majures ipfe fuiUncbit cxpcnfas." Hut
many of thefe were young men of family and fortune, not intendeii for the legal profeffion.

Chap. XLIII. Nonne liina^ (5cc. and Num Juut a j-Je lima, t^'c] Compare the following pafTage
from Dante's very curious treatile De Monarchia : " lili vero, ad quos erit tota dif| utatio fet|uens,
aflerentes au£Ioritatem Imperii ab auctoritate Ecclefujj dependere .... [)luribus et dive.fis argumentis
moventur, qu:e quidcm de Sacra Scriptura eliciunt . . .. Dicunt enim jnimo, . fecundum fcriptiii.im
Geneleos, quod Deus fecit duo magn.i luminaria, luminare majus et luminare minus, ut alterum pn.elli t
diei et alterum nofti ; qu;E allegorice diiita elle intclligebant, ilLi duo regimina Ipiritualc et temporalf.
Deinde quod quem admodum luna, qu^ eft luminare minus, nnn habet lucem, nifi prout reei|Mt \
fole, fic nec rcgnum tcmporale auihloritatem habet iiili prout recipit a fpirituali reginnne." (Lib. ui. [ .
I jS, ed. Florence, 1839 ; alfo pp. 144, 146, 156.)



PART n.

Chap. III. Refponfw Nepoth.^ The arguments by which the king's grandlim m.iinjains his c'aini
to the crown, to the e.xclufion of his mother, are illu ft rated by the letter written by Edward III. to the
Pope and Cardinals, in which he claims the kingdom ut France in right of Jiis mother, Ifabella. " Ad
hoc etiam per jus memoratum a regno tragilitas muliebris excluditur, ut regno lalubrius confulatur,' et
proximior mafculus admittendus alias admittatur potillime ad jus illud, quod primordialiter a matre jfic

exclufd non oritur, fed in nepotem propagatum ab avo originaliter dirivatur juris ejufdem judicio,

quo mater a fuccefTione expellitur, filio gradum matris ingrello lucceflio tunc diffeitur, fmiilitudine filii
qui gradum parentis deficientis ingreditur, . . . . ut fic [nerito trillis mater, praefato rigore regia hereditate
nudata, fubllitutione taliter fibi faita, de filio gaudeat conlolata, nec affli(R:ioni afflii^tionem accumule;,"
&c. The V hole letter is given in Rymer's Fcedera. — Lhtcric qiiui Rex Anglue ml Papiiin et Ctirdhuiles
mifit jus fuutn in regno Francia dcclarantcs^ a.d. 1339, An. 13 Edw. III. ed. 1821, vol. ii. pa t ii.

Chap. IV. 'Jujlam rem poftulunt fAui- Scdphtudl.^ It is evident that this cafe of the d lughtcrs o(
Zelophahad was not forgotten by the advocates of female government in the next century, w hen queens
were in the afcendant ; for John Knox thinks it necellliry to refute the argument drawn fi( m it, in his
FirJ} Blaji to tnvake JFomen degenenite, written againll Mary of England. I give a few extrai^ts from
that fiery pamphlet, -".vhich fupply a curious cjmparilbn with feveral pafTages of this treatile. "To
promote a AV^oman to bear Rule, Superioiity, Doininion, or Empire above any Realm, Nation, or City,



PART II.] Notes and IliuJ}ratio?is. -6j*

is repugnant to Nature, contumely to Ciod, a thing inofl: contrarious to His revealed Will and approved
Ordinance, and finally the fubverfion of Ciood Order, of all Equity and Jullice." .... " Ariilotle and
others, illuminated only by the Light of Nature, did fee and pronounce Caul'es fuflici. nt why Women
ought not to bear Rule or Authority. I am fure if they were li\'ing this Day, to fee a Woman luting
in Judgement, or riding from Parliament in the midlt of Men, having the Royal Crown upon her head,
the Sword and Sceptre borne before her, in Sign that Adminiftration of JulUce was in her Power, they
would be fo aftoniflicd with fuch a fight, that they would judge the world to be transformed into
Amazons," ^kc. He quotes the Civil Law, St. Paul, Ariilotle, 'J^rtullian, and Auguftine's definition
of "-ordo;" he refers to the order of creation, and to the analogy of the natural body with its head ;
and upon Deuteronomy, xvli. 14, 15, he fays: "when Males of the Kingly Flock failed, it never
entered into the People's Hearts to chufe and promote to Honour any of the King's Daughters, had he
never fo many." He alludes (like Fortefcue) to the precedent of Deborah, and fays: "God by His
fingular Privilege, Favour, and Grace, exeinpttd Deborah from the common Maledidlion givei in that
behalf to Women, and againll Nature He made her prudent in Counfel, ftrong in Courag ■," &c.
Then, upon Numbers .xxvii., he comments thus ; " '("he Portion of Zelophahad's Daughters was not
to reign over any one Tribe, nor yet over any one Man within Ilrael, but only that they might have a
Portion of Ground among the A-Ien of their Tribe, leit that the Name of their Father fhould be

abolilhed And what maketh this, I pray you, for the eftablifliing of this monftrous Empire of

Women .' Although Women may fucceed to the PolTefllon, Subitance, Patrimony, or Inheritance of
their Fathers, yet they may not fucceed in their Father's Offices," c\'c. Shakfpeare alfo introduces into
King Henry the Fifth a reference to this Old Tcftament precedent. The king afks (acit i. (c. 2),
"May I with right and confcience make this claim ?" the claim to the kingdom of France; and the
Archbifliop of Canterbury anfwers :

"The fin upon my litnul, drcail fovcrciijii !

For ill tlie Book ot'Nunibeis it i; writ,

Wlicn the Ion dies, let the inheiitanoc ,•

Dckend unto the daughter."

Ch.\P. VL Sic Dominus nojier . . . . vivi-nte iiiatrc.'] Compare the fame argument in Edward IH.'s
Letter to the Pope. " Aliter etiam fi pro eo quod inater ex jure non admitteretur ad regnum, repelli
jure filius intelligeretur a regno, Judaiorum regnum contra fidei fimdamentum non pervenillet Icgittime
ad Jefum, qui tamen natus Dei minillerio, non virili conlortio, ex tccmm.i regali prole Davidica, Maria
Virgine, ad regnum hujus non admifia, nee etiam admittenda, per certam ridei veritatem, Rex verus et
legitimus extitit Judaiorum." Ryz/UT, as above.

Chap. VIH. " ALu occafioiiatus."'\ This is one of the Jui^oritates Jri//iJtelis, s.nd is a verfion of
his words in the De Generatione Animalium, ii. 3. to yjif (ih^.u aawi^ iariy appiv TnTr-zipu/xivov. As to occa-
fionatui, it is given in Ducange with an iUuftration, which happens to be this very aphorifni — " Fi mina
c[\ mas occafioau^tis, id eft, imperfectus ;" but it is properly "taxed," " mulcted," occafio being di. fined
by Ducange as " Trihutum quod propter cccafioms bellorum i^'c. imponitur." .Aquinas in the De Reg.
Prin. quotes the faying thus: — " Tradit Philolijphus de geilis animalium, quod mulier elt ma.julus
occafionatus," iv. 5.

Chap. IX. ff. De Regid'n Juris I. Femincs."^ Gibbon complains of this mode of quotation. "• The
Civilians of the darker ages have eflablifhed an abfurd and incomprehenfible mode of quotation, which
I. U u * If



368* De Naturd Legis Naturce. [part 11.

is fupported by authority and cuftom. In their rntercnccs to the Code, the Pandects, and the Inrtitutes,
they mention the number, not of the Book, but only ot" the Law, and content themfclves with reciting
the firft words ot the T'ltlt: to which it belongs; and of thefe Titles there are more than a thoufand."
Here the particular Law is quoted by its iirli: word. (Cha|). xliv. Note.)

Chap. X. Si terrain.^ See Coke upon Littleton, lib. i. c. 2, le6t. 24. " Alfo, if lands be i^iven to a man
and to the heires males of his body, ar.d he hath ifTue a daughter, who hath ilTue a foiuie and dieth ; and
after the donee die ; in this cale, the (on of the daughter IhuU not inherit by force of the entaile ; becaufe
whofoever Ihall inherit by torce of a gift in taile made to the heires males, ought to convey his delcent
whole by the heires males. Alfo, in this cale the donor may enter, tor that the donee is dead without
iflue male in the law, inl'omuch as the ilTue of the daughter cannot convey to hunfelfe the defcent by an
heire male."

Chap. X. Donum talUatuin, ,5cc.] A "gift in tail." See Coke upon Littleton, lib. i. c. 2. lecl. 13.
" If lands had beene given to a man and to his heires males of his bodie, and he had iflue two fonnes,
and the eldefl: had ilTue a daughter, the daugluer was not inheritable to the fee-fimple, but thi' younger fon
per fonnaiii do>iiy

Chap. X. The Genealj^y of Our Lord.'] Fortel'cue curioufly argues that as our Lord inherited from
David through his mother, he could have no hereditary title to David's throne in the lifetime of Joieph,
who, he contends, was the dire6f lucceflor in the male line. He makes a very lame attempt to lolve the
well-known diiTiculty that St. Matthew, profefling to give "the generation of Jefus Chrilf, the fon )f
David," gives the genealogy of Jofeph. He alfo notices that Mary is not faid by Matthew to have bet n
of the line of Solomon, and conjeftures from Luke iii. 31 that flie was defcended from Nathan, anoth'^r
of David's fons. The facf, however, is, that " the two genealogies are both the line of Jofeph, and not
of Mary," and that Mary's defcent from David is "nowhere expreffed in the gofpels." See Alford on
Luke i. 27, and iii. 23.

Ch.ap. XVIII. LLiigo de SanSlo FicTor,.] A learned ecclefiaftical writer of the twelfth ciiitury, who
filled the chair of theology in the Abbey of St. Victor at Paris, and died in 1140. Among his numeroi s
works the molt confiderable was a Summa Sentent'uirum, the firlt complete courle of theology compofed
after the falhion followed by the more celebrated Peter Lombard and others, and a treatile, De Sacra-\
mentis., quoted by Fortefcue. (Biog. Univ.)

Chap. XVIII. Fincentius in Speculo Hi/hriali.] " Mulicr quoque. licet prx-dita fit ratione ficut vir,'
dicitur tamen efle gloiia viii, non tamen imago Dei ; eadem ratione t|ua nee angclus ; et etiam majori,
quia, fcilicct, viro fubdita e(l, iion domina ; et quia non cil origo omnmm ficut ille j et quia non elt a|
Deo faiSta immediate, fcilicet, formata de viri latere; et quia non habuit ab initio rationem ita limpidam
ficut vir, unde a diabolo feduifta elf, non vir; item propter duplex myfterium, fcil. Chrifti et Ecclefis,
fuperioris et infcrioris partis rationis," uVc. Lib. i. c. 41. " De Dignitatc Hominis et Crcatione
Mulieris."

Ch.ap. XIX. Forma.] The word is ufed by Columella, De conhcicntlo cafco, vii. 8, " Liquor in
fifcellos, aut in calathos ve\ formas transferendus eil," and '•'■formis buxeis cafeuni exprimer -." See
Scheller's Lexicon.

Chap. XXIII. AuP.or de caufu.] The name of the " AuiStor de Caufis"' is Alfarabius. He is edited
by /Egidius Romanus, and is printed in a volume bearing tlie title" FundatilTimi .iTgidii Romani, Archi-
epifcopi Bituricenfis, Do£torum prxcipui, ordinis Eremitarum S.uicli Augultini, (.)pus lujier Auctorem



PART II.] Notes a7id Illiiftratwns. 369*

de Ciiifis, Air.ir.ibium," \'ciiicc, 1550. The propofitiuns of the " A uiftor " are given nt leiimh, and
/Kiji.iuii coninicnts on them. The pnfl'.ige referred to by Furtefcue is this ; — " (^loniam onniem
opcr.uioneni c)uain cfRcit caufa fecunda, efticit et caiiTa prima, verinii tamen caulii jirima effieit earn per
n)i)diiiii .dliorein c( fuliliiniorem," ed. 1 550, fol. 410. There is a comment on the " Ain^tor " amon"
the works of Aquinas, whence Fortelcue may have derived his knowled[/e of it. I am indebted for this
note to Frofcfl'or Stubbs and the Rev. H. O. Coxe, Librarian of the Bodleian.

Chap. XXV. Sub viri potejliite cris ,•( ipjc ilomhiabitur tiii] Compare the Declaracion made by
John Koitcfcuc Knyglit upon certayn writings lent oute of Scotteland ayenft the Kingcs title, c*cc. This
pall'.igc, according to the " Lerned Alan," is the "cone niatier which nedith right gret and clere dechira-
tion," and is got over by our author in this talliion : — "That every woman is under the power and
lorlhippe of fume one man, which is all that flie is alked unto by the forfaid jugjement in Genefis, may
not be denied ; for every woman is under the power and lordfliippe of the Poi)e, whiche is a iran," ^^c-
ChaI'. XXXII. Ad ojituin Eccltj'ici-.'] This is dower c.v ajjhiju piitris, which is a fpecies of duwev cid
ojlium ecclefut. See Coke upon Littletoji, lib. 1. c. 5, fecits. 39, 40. " Dowmcnt by ailent of the father
is, where the father is feifed of tenements in lee, and his fonne and heire apparent, when he is married,
endoweth his wife at the monaflery or church door of parcel of his fatlier's lands or tenements with the
afTent of his father, and affigns the quantity and parcels." And Bradon (quoted in feft. 39) lays, " Ha^c
conftitutio fieri debet in facie ecclefias, et ad oflium ecclefise ; non enim valet faila in leiitt) mortali (or,
maritali), vel in camera, vel alibi ubi clandefUna fuere conjugia." By the 27 Hen. VIII. c. 10 (the
Statute of Ufcs) the evils and inconveniences of dower, operating to reflrain the fde of lands and in other
troublefome ways, were mitigated by providing jointure in lieu of dower; fo that wo widow who had a
jointure could claim dower; and they were removed by the ihu. 3 and 4 W'ill. IV. c. 105, which fub-
ftantially lubjefts the wife's right of dower entirely to the will of her hulLand.

Ch.'VP. XXXIII. Onliiuirios.] In civil law " Ordinary " means any judge who takes cognizance of
caufes in his own right, and not by deputation ; but by the common law it ib taken for him u'ho has
ord'nuiry or exempt, or immediate jurisdief ion in caufes ecclelialfical. Coke, Litt. J44. It is applied
not only to archbifliops and bifhops, but to every commillary and official of the bilhop who has judicial
power ; and to the ecclefiaffical officers who adminilk-r the ertates ot intetlates, in which knic it is uled
in the te.\t. By the ftat. Weft. 2(13 Edw. I. c. ig), it is enacled, " Cum polf mortem alicujus decedentis
inteftati et obligati aliquibus in debito bona deveniant ad ordinarios dilponenda obhgetur de cetcro
ordinarius ad refpondendum de debitis quateiius bona dehmcti lulHciunt, eodem modo quo executores
huiulmodi refpondere tenerentur fi teftamentum fecillet." The ftatute does not prefcribe v\'hat the
ordinary is to do with the remainder after paying the debts, and Fortelcue feems to imply that he ou':;ht
to diftribute it among the widow and children according to the culloni of the locality. But it is well
known that the ecclefiaftics, even before F'ortefcue's time, were in the habit of neglefling this duty, and
appropriating the goods of intellates to a great degree in " pios ufus," to remedy which abufe, md to
elfablilli a uniform fyftein of dilf ribution, the Statute of Dilhibutiuns (22 and 23, c. 2, c. 10), was
pafl'ed, which is ItiU in force, quoad the diflnbution of effecfts, but the power of granting let cis of
adminiftration has been transferred trom the " ordinary" to the Court ot Probate.

Chap. XXXV. Leonardus ArethiuiP^ Leonardo Bruno of Are/'/o (13O9 — 1444. One of the
reftorers ofclaffical learning in Italy in the 15th century. He learnt Greek from Fmanuel Chrylijloras
whofe arrival at Florence as a public teacher of that language in 1395 was, lays Hallam, "the true



370* De Natia'd 'Legis Naturcc. [part ii.

epoch of the revival of Greek hter.itLire in Italy." He was fecretary to Pope Innocent VII., and fu?-
ceeding popes, and afterwards fecretary to the Republic of Florence, where he palled the latter part of
his life. "In the conftellation of fcholars who enjoyed the funfliine of favour in the palace of Cofmw
de Medici, Leonard Arctin was one of the oldefi: and mofl: prominent. He died at an advanced age in
1444, and is one of the fix iUullrious dead who repofe in the church of Sta. Croce." Hallam adds the
anecdote that Madame de Stacl, in her Curiiiiie, unfortunately confounded this refpeftable fcholar with
Pietro Aretino. Among his numerous wurks are the " De IScllo (jothico " (from Procopius), " De
Temporibus Suis," " De llello Punieo," 'Pranllations of Plutarch, of the Politics and l'",ronomics of
Ariftotle, &c., and a commentary on the Ethics, under the name of In Libros Aloralcs Arijlotelis
Ifagoglaiin, which was printed by John of ^Veft:phalia in 1483, and is here quoted by Fortefcue a few years
before that time, and fome twenty years after tlie death of the writer. Hallam, Lit. ot Europe, part i.
ii. 6. Biog. Univerfelle. Bayle. He alfo made a traiifl.ition of the Ethics, printed .it Oxford b)
Corfellis in 1479, and the fecond bouk produced from the Oxford prefs, winch is wi jiigly delcribed in
Watt's Bibliotheca as a commentary.

Chap. XXXVI. Alacroihu.'] Macrobius, the grammarian. Nothing can be ailerted with confi-
dence with regard to his life, except that he flourillied about the beginning of the 5th century, ii the
age of Honorius and Theodolius, and that he w.is probably a Cjreek. His wurks are Dt; D'ljjcrcnt'li ct
Soiietdtibiis Graci Latiniqui' Fcrbi (grammatical), Sutunudioruni Cinvivionini Libri TIL^ a l';rie . ot
curious and valuable difTertations upon criticifm and antiquities, and C'^inmeiitarlus in Somiiium S itn ii'is^
greatly admired and ftudied during the middle ages (Dift. of O. and R. Biograph.).

Chap. XLII. Dominus quafi dans ?ninas.'\ I find this notion in a newfpaper article of tl is /ear
(i868), I believe in the Pull JilaUGaz.ette — "the idea of command in the proper fenl'e of the term,
whichis organized threatening."

Chap. XLVI. Cjllateralis et fotia.] Compare the following from the G;//-'5//fo;; of Januenfi , at

the article yI//;//Vr. " Mulier a mol/is, quafi /iiol/ier" {^.) "Hie potefl: queri quare mi.lier

tacfla eft de cofta viri. Ad hoc eft dicendum quud fie dicitur in Libro Senteiitiarum lecundo : - ' J deo
de latere viri fafta fuit mulier ut oftenderetur quod in confortium creabatur dileetionis; ne torte, ft
fuiiret de capite fafta, viro ad dominatricein videretur prefereiula, aut, fi de pedibus, ad lerviulndum
fubjicienda. Oui ergo viro nee domina, nee ancilla par.ibatur fed (ijcia, nee de capite, nec de pidibus
fuerat producenda.'"

Chap. XL VIII. CsIIatione ;V.] A reference to the " Authentici-," or " Authenticum." Jutbenticce
was the name given to the ancient, and barbaroull)' literal, Latin verfion ot the NouelLe Conjlitiiyonei,
or Novels of Julb'nian, "quoniain ex ipfo gra;co originali ad liter.im traduCta eft.'" (Ducange.) This
verfion was rediftributed by an unknown interpreter in the reign of the emperor Frederic I. (about a.d.
1 140) into nine CoUationes, in which no order either of time or fubject leems to have been obferved.
Gravina fays — "Ha; Novella primo gr.x-ce prudierunt, ileinde verfa; fuerunt Latine .il Anonymo, et

evulgata?, imperante Juftino II Prodierunt et .ili;e verfiones, nempe Haloandn iic, quibus,

ut elegantia maj^r accefi'erit, legis tamen defuit aufloritas, qune tributa tantum tuit Ano lyino illi qui,
prsceptum Juftiniani fecutus, eos vcrtit nxja tioIx;, hoc eft, verbum verbo, eodem ordine fervato,

reddidit; proptereaque vocatum hoc volumen fuit Authenticum Burguntio vero, five iiiterpres

alius, negletflo proifus vcterum novellarum numero, ex antiqii.i ferie jam pertiirbata A. c. I 140 novam
pertexuit in novem Collationes tiibutam, in quas, fupprell'o priori ordine, luperftites Novellas digclfit.



PART II.] Notes LDid Illi/J}ratio?is. 371*

Di(ilx' luiu autLMTi Coll.uiones, qimfi cullats ad alias, atque oppufitae, ad declaraiidas vcl abroL^indas
fupcriDics leges Codicis, cc prdptL-rca L-xticmo codici adjcilit. Oiiud vulinnL'u in uiu pofitiini, Iprctis
aliis ciliUDiiibus Authcinicum tuit appellatuin." (Origines Juris ('ivilis, lib. i. cap. iJ5-) l^niriniius,
however (l)c V'crborurii c|u.f ad Jus Civile pertinent lignihc;itioiie), gives a more natural expl.uiatiun
of the term Collatio. " Colliitiones etiam parum Latine vocantur partes collectionis Novellaruni
Judiiiiani, quafi au>^oyal, vel Colleiiioiies, cruf/.f:o^niJi.aTa..^' The words quoted in the text will not be
found under the title " De legitima. tuteld," which is tit. xxx. of book v. of the Codex (they are added
there in Heck's ed. Lipfiae, 1829), but under Collatio ix-. tit. i. of the Authentica;, De Hreredihns ah
intclLito vcnientibus, t'vc, alfo as Nov. Conlt. cxviii. cap. 5, or Coiift. cxiv. cap. 5.

Ch.ap. L. Gudex in cr'uninibui verltatcm txtorqiu-t torturis.] Fortefcue muft not be taken as
affirming that torture was in accordance with the law of England, but only that it was praitiled. He
has indeed put upon record in the De Laudibui Li-giim AngUa: (cap. 22) an indignant proteft againft its
ufe, calling the praftice of it "11011 lex, fed potius femita ipla ad gehennam " It was unquel ionably
part of the Civil Law, but was never faiiftioned in this country by Common Law, or by ftatute, u.ilefs the
recital in the 27th Hen. VOL c. 4, that offenders of a particular clafs would confefs " without pains or
torture," can be confidered as a (latutory recognition. It was prohibited by Magna Charta, asconftrued
by Lord Cope, " nuUus liber homo aliquo modo deftruatur," <?cc. In Felton's cafe (1628) the king put
it to the Judges, " whether by Law he might not be racked ?" to which they all anfwered, " He ought
not by the Law to be tortured by the rack, for no I'uch punilhment is known or allowed by our law."
It is clear, neverthelefs, that torture was frequently practiled by warrant from the Crown, and for
centuries fuch an exercile of the prerogative does not appear to have been difputed. The lalf ufe of
torture in England was in 1640. In Scotland, it was legal until abolillied by the 7th Anne, c. 21.

Chap. LIIL In Authcn. de Confulibus, § Si vera. Coll. iv.] I find this reference (Coll. IV.) in an
" Index Conftitutionum quae Authentici funt ex vulgari Collationuni Divilione defcriptaruni," contained
in an edition of the Novels publilhed at Leipfic, 1851 (Heinbach). Hut De Confulibus will jenerally
be found as Collatio IV. 3, or Novella ("ex corpore CLXVTII. Novellarum") CV. 2, or Conlt.
XXXIV. 2. See Note on chap, xlviii.

Chap. LVII. '■'• Aloralis Cato7ii!."] Much has been conjectured, but nothing is known concerning
the origin of the fmall volume, which commonly bears the title of Dianyfii Catoiiis Dijlicha dc Aloribin
ad Filium, and which in the earlier printed editions was frequently called Cuto Moralijatus, Cato Aloral-
ijjimus^ &c. It has been afcribed to Seneca, Hoethius and others, and probably belongs to the Silver
Age of Latin literature. It confiits of a feiies of moral precepts in hexameters, many of which were
familiarly known in the fourth century, and throughout the Middle Ages. Chaucer often quotes it,
and its popularity in Fortefcue's day is indicated by the ficl that a tranflation of it is one of the oldeif
fpecimens of Englilh printing, Caxton's Booke callyd Cathon having appeared in the year 1483 (See
Smith's Diet, of Greek and Roman Hiography.)



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