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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Mofes here in this edic'f of his, mentions the efl^e'J:t of the law firif, viz., The fear of Ged, md
then exhorts to the keeping the conunands of God, which are tlie ciuife of that fear ; for the
efi'ecl is always prior to the caufe in the intention of the perion who exhorts. But whatjkind
of fear is that winch the laws propofe to the keepers thereof.? Sure, it cannot be that fear,
of which it is written (i John iv. 18) that perfei^t love cafteth out fear. Yet that 'fear,
though it feems a fervile fear, often ftirs up kings to read the laws. But this is not the etfetl
of the law ; the fear which Mofes \\^xt intends, and which the laws produce, is that defc -ioed
by the prophet, " The fear of the Lord is clean, enduring for ever " (Pfalm xix. y). This
fear is filial and quite excludes that fervile dread and horror, v/hich that hath which is caft
out by love. This proceeds fVom the laws, which teach to do the will of God, in the doing
whereof we fltall efcape all punifliment. " The glory of the Lord," fiys the Scriptures, '■ is
upon them that fear him, v/hoin alio he glorifieth:" in a word, tliis fear is the fan e v. hich Job
fpeaks of, when, after he had turned his thoughts many ways in fearch after wifdom, he gives
us this as the refult of his inquiry : " Behold the fear of the Lord, that is wifdom, and to
depart from evil is underftanding " (Job xxviii. a8). To depart from evil, the laws teach and
caution; whereby they alio produce that fear of God, wliich is the true wifdom.



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0)1 t/ic Lmvs of Riighuul, 387



Chai-. II.

The Prince's Anfvoer.

HEN the Prince heard this, looking very intently :it the old knio;ht, he replied,
ya»w% ^ know, good Chancellor, that the hook of Deuteronomy is a part of the Holy
fe:*^^'^ Scriptures, that the laws and ceremonies contained therein are of divine inllitution '
and promulgated by IVloles ; upon which account the reading of them is matter for a pious
and devout contemplation ; but the law, to the (ludy and underftanding whereof you now
invite me, is merely human, derived from human authority, and refpefts this world: wlicre-
tore, though Mofes obliged the kings of Ifrael to the reading of the Deuteronomical I w, it
does not thence reafonably follow, that by the fame rule he mvites all other kings to d ) the
like as to the laws of their refpertive dominions : the reafon of the ftudy of the one, and of
the other, is not llrie'tly the fame.

Chap. III.
The Chancelloy enforce th his Exhortiition.

S^l5 HANCELLOR. I obferve, mofl: excellent Prince, tVom your reply, with what
'fXrQl care and attention you weigh the nature ot my advice, whicJi encourages me \'ery

t^^'k'i much, not only to explain more clearly, but to enter fomewhat deeper into the
matters I have begun and propofed to you ; be pleafed to know then, that not only the
Deuteronomical, but alfo all human laws are facrcd ; the definition of a law being thus, " It
is an holy fanftion, commanding whatever is honell:, and torbiddmg the contrary." Aiiii
that mull needs be holy, which is fo in its definition. The law or light is alfo defined "to
be that, which is the art of what is good and equal ;" or, the law confidered as a fcience or
profeflion, may aptly be defined in the fame manner. Whence we, who are the miniilerial
officers, who fit and prefide in the Courts of Juftice, are therefore not improperly called,
Sacerdotes (Priefts). The import of the Latin word {facerdos) being one who gives or
teaches holy things; and all laws which are folemnly enabled by men have their authority
from God : feeing the Apoltle fays (Rom. xiii. i), that all power is from God. Laws whi h
are made by men (who for this very end and purjiofe receive their power from Gotl), m.iv
alfo be affirmed to be made by God, as faith the author of a book, going under the name )('
Alitor Caiijiirum, " Whatfoever the fecond caufe doth, that doth the firfl caufe, but in a
more excellent manner," Wherefore king Jehofliaphat lays to his judges (2 Chi'oii. xix. 6),
" Take heed what you do, for you juilge not for man, but for the Lord, wlio is with you in
the judgment;" whereby you are inftrucfled, that to ftudy the laws, though of human



3!



0?i the Laws oj Rngla7ui.



iiiftitution, is in effcft to ftudy the laws of" (jod ; which therefore cannot but afford a piou;,
and devout entertainment. But neither was it out of devotion only, as you rightly judge,
that Mofes commanded the kings of Ifrael to read the hook of Deuteronomy rather than any
other part of the Pentateuch, fince all of tlieni abound in matter for a devout and holy con-
templation ; to meditate on which is the part of every good man : the true reafon ot this
command is that in the book of Deuteronomy, the laws, whereby the kings ot Ifrael were
obliged to govern their fubjefts, are more exprefsly, more explicitly particularized than in
any other of the books of the Old Teltament, as the circumltances of the command do
plamlv evince. Wherefore, my Prince, the lame caufe does no lefs exhort you than the
kings of Ifrael, that you ought to be a iludious enquirer into thofe laws, whereby you may
be hereafter qualified to govern your fubje6i:s. For, what is fliid to the kingn of Ilrael mufl
be figuratively intended to be ipoken to every king wjio bears rule over a pei pie, who know
and worfhip the true God. Upon the whole, could anything be more fitly or n.ore uictully
offered to your confideration, than tliis command enjoined to the kings of Ifrael, to read and
ftudy their law ? Since, not only the example, but the typical authority thereof mftrufts
and obliges you to behave conformably to the laws of that kingdom, to the crown wh;re )f,
with the permilfion of Divine Providence, you are in due courfe of time apparendy to
inherit.




Chap. IV. , '

He proves that a Prince by the Laws may he made happy.

[HE Laws, mv dear Prince, do not only, with the Prophet, fiying, " Come, ye
children, hearken unto me, I will teach you the fear of the Lord" (Ps. xxxiv. 1 1),
call on you to fear Ciod, whereby you may become wile; but the iame laws alfo
invite you to be exercifed in them, that you may attain to felicity and happinefs, as fa|- as
they are attainable in this life. For all the philofophers, who have argued fo differently
about happinefs, have agreed in this, that happinefs is the end of all human defires, ifor
which reafon they call it the /ituiDium hontim, the greatelt or chief good: the Peripatetics
placed it in virtue ; the Stoics in what is honeft ; and the F^picureans in plealure ; but,
inafmuch as the Stoics defined that to be honeft which is done well and laudably, according
to the rules of virtue ; and the Epicureans afierted that nothing is or can be pleal mt without
virtue; all thofe lefts, according to Lconardus Aretinus, in his Introduc'lion to Moral
Philolbphy, have concurred in this, that it is virtue alone which procures and effeifls
happinefs, wherefore Arillotle (Lib. 7. Polit. ), defining happinefs, fays, " That it is the
perfeft exercife of all the virtues." This being granted, I dciire you to conlider what will
follow from tliefe premilTes. Human laws are no other than rules whereby the perfeft



0)1 the Laws of R}igla7ui. 389

notion of juftice can be determined : but that juftice, which thofe hiws difcover, is not of
the commutative or dilkibutive kind, or any one particuhtr dillind: virtue, I ut it is virtue
abfolute and pcrfedl:, and diftinguifhed by the name of Legal Juftice, which the fame
L. Aretinus affirms to be therefore perfcd, becaufe it utterly rejefts and difcountenances
whatever is vicious, and teaches an univerfal virtue, for which it is defervedly called, fimply,
by the name of virtue in the general ; concerning which thus Homer and Arirtotle, " It is the
moft excellent of all the virtues, and that nor morning nor evening ftar is fo bright or lovely'
as this." This juftice is the fubjeft of the royal care, without which a king cannot aft in his
judicial capacity as he ought to do, and without which he cannot jnilly engage in any war:
but this being once attained and ftriftly adhered to, the whole regal office will, in all refpefts,
be adequately and completely difcharged ; fo that, to fum up what we have faid, hap linefs
confifts in the perfed; exercife of all the virtues; and fmce that juftice which is taugh. and
acquired by the law, is univerfal virtue, it follows that he who has attained this juftice is
made happy by the laws, confequently has attained t\\e, Jummiim bonum or beatitude, fince
that and happinefs in this fleeting life mean the fame thing. Not that the law itfelf can do
this exclufive ot divine grace : nor will you be able to learn either what is law or virtue
without it, not fo much ns in the inclination to it. For, as Parifienfis fays, " The internal
appetitive virtue of man is fo vitiated by original iin, that vicious pratflices relifti pleafmtly,
and the works o[ virtue feem harfti and difficult." Wherefore, that fome give themfelves
up to admire and follow virtue, is owing to the grace of God, and not their own natural
ftrength or uprightnels of difpofition. May I not now a(k the queftion. Whether the laws,
which through the divine concurrence work iuch good effefts, as I have laid before yoa, are
not to be ftudied with the utmoft application ? fmce he, who hath a juft notion of them, is
in the way to arrive at that felicity, which, according to the philofophers, is the end and
completion of all human defires, and the chief good of this life. Though what I have
hitherto offered is of general confideration only, and therefore may not feem to concern you,
as you are heir apparent to a crown ; yet the words of the Prophet lay an obligation on
you, even in that capacity, to apply yourfelf to the ftudy ot the law, when he fays, " Be
inftrufted, ye judges of the earth" f Ps. ii. lo). The Prophet does not here perfuade to the
learning of any mechanical art or trade, nor yet of any fcience in theory, how proper
or beneficial foever to mankind ; for he does not fay in general, Be inftruCled, ye inhabitants
of the earth, but addreffes himfelf in a particular manner to the kings or rulers of : his
world, and exhorts them to the ftudy of the law, according to which they ought to
adminifter juftice and judgment to their people: "Be inftruifled, ye judges of the eartli."
It follows, " left at any time the Lord be angry, and ye periffi from the right way."
Neither, great Sir, do the Scriptures only oblige you to be inftrudied in the laws, by which
juftice is to be learned and attained, but in another place gives it you in charge to love
juftice herfelf, faying, " Love righteoufnefs, ye that be judges of the earth " ( Wildom i. i).
I. -3 E-



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•.'■'.1 f.i



39°



0)1 the Laivs of E?igIa?uL




Chap. V.

Ignorance of tJie Laws caufcs a contempt thereof.

I^Ul', Sir, how will you love righteoufnefs, or juftice, uiilefs you firlT: acquire a
r^ competent knowledge of the laws, by which juftice is to be learned and known ;
ts^^x-T^^toB for, as the Philofopher fiiys, " Nothing is admired or loved unlefs it be known,"
which made the orator I>'abius fay, " That it would be well with the arts and fciences,
if artiils were only to make a judgment of them." What is not known is fo hn- from being
loved, that it is ufually defpifed, as faith a certain poet,

TIk- ludic what !iL- knows not alwiys llii.'litb.

Nor is this the way of the clown only, but of men of learning and fkill in the hheral rrts'
and fciences. Suppofe, for inllance, a natural philofopher, who had never ftudied either
the mathematics, or metaphyfics, fhould be told by a metaphyfician that his fcience confid.-rs
things abftraifted from all matter and motion, both as to their eflence or reality, and as to
our conception ot them : the mathematician alfcrts that his fcience confiders things in real ty
conjoined to matter and motion, but feparated from them in our conception : it is certain
that our naturalift, who was never acquainted with anything feparated from matter and
motion, either in reality or conception, would not forbear laughing at both of them, and
would be apt to delpife their refpeuTiive iciences, though of a fublimer nature than his own ;
and that tor no other reafon, but becaufe he is perfectly unacquainted with tlieia. So, i ly
Prince, would you in like manner be furprifed at a lawyer who fliould afl'ert that one
brother fhall not fucceed in the father's inheritance to another brother, who is not born ij^
the fame mother, but that the inheritance lliall rather defcend to the fifter of the whol^
blood, or it lliall come to the lord of the fee by way ot efcheat : you would be furprifed, i
fay, at this, as not knowing the reafon of the law in this particular call-. Wliereas the
feeming difficulty of this cafe gives no perplexity at all to hich as are fl-.illed in the conunon
law of England, which confirms the vulgar laying, " The arts and fciences have no enenr;
but the unlearned.

But far be it, my Prince, that you fhould prove averfe, or an enemy to the laws of that
country to which you will in time inherit by right of luccelTion, when the above-cited text
of Scripture inftrufls you to love righteoufnefs. Wherefore, moll; noble Prince, pi rnvt me
again and again to importune and befeech you to inform yourfelf thoroughly in the laws of
your father's kingdom, not only that you may avoid the inconveniences I have mentioned,
but becaufe the mind of man, which has a natural propenlity to wlut is good, and can
defire nothing but as it has the appearance of good, as loon as by inllriKftion it comes to a



Oh tJie Laws of E?!^Ia7id. 391

perfecfl knowledge of that good, it rejoices, takes pleafure therein, and as it improves
by reflec'-tioiis, the pleafure grows more and more; from whence yun may infer th.it when
you come to be inftrue'led in thofe laws to which you are ar prefent a ftranger, you will
moll certainly affeY't and love them, becaufe they are excellent in their natinx- and reafon ;
and the more you know ot them, the more will you be entertained and pleafed. For what
is once loved does by ufe transform the perfon into its very nature: according to the Philo-
ioplier, " Life becomes a fecond nature." So the fcion of a pear-tree grafted on an apple-
iiocV, after it has taken, draws the apple fo much into its nature, that both become a
pear-tree, and are called fo tron: the truit which they produce. So, virtue put in pracfice
grows into a habit, and imjiarts its very name to thofe who praftife it: as we fay of one who
is indued with modefly, continence, or wifdom, that he is modell:, continent, wife. So you,
my Prince, when you fliall have praftifcLl jiiltice with delight and pleafure, and hav , as it
were, tranfcnbed the law, with the rule ot jullice, into your ver)- habit and difpofition, will
defervedly obtain the charafter of a juft prince; and, as fuch, be faluted with thofe agree-
able words ot the Plalmill:, " Thou loveli righteoufnefs, and hateft wickednefs, therefore
God, thy God, lliall anoint thee with tlie oil of gladnefs above thy fellows" (Ps. xlv. 7).



Chap. VI.

.^ repetition of his exiiortation.

^^%o))ND now, mofl: aracious Prince, are not thefe argimients, which I have c:lTered,
^/^^N^W, abundantly fufficient to induce you to the iludy of the law .? Since thereby you
^^£r=^^ will acquire a habit of jurtice, be honoured with the name and charafter of a juir
prince ; not to fay, that you will thereby alfo avoid the imputation and dilgiMCe which
attends ignorance ; and moreover you will thereby attain to that, which all men covet after,
happinefs, as far as it is attainable in this life ; and through that fear of God which is the
trueft wifdom, and that charity or love of God which, in the peace and fatisfaftion of it,
paffes all underflanding, being, as it were, umted to the beft and grcateft Being, the fountain
of all happinefs and perfection, you will become, to ufe the Apoltle's exprellion, one fpirit
with him.

But, becaufe thefe things, as I faid, cannot be wrought in you merely by the law, \ ith-
out the fpecial alliltance of divine grace, it is neceflary that you implore for that abovj all
things ; as alfo that you fearch diligently into the knowledge of the divine law, as contained
in the Holy Scriptures. For Holy writ laith, " Vain are all men by nature who are
ignorant of God" (Wifdom xiii. i). I advile you, theretbre, my Prince, that whilfi:
you are young, and your foul is, as it were, a virgin-table, a blank fpace — you write it full



I'- ;•,. V I



I . , , 'i



392 0)1 the Laws of E?igla?id.

with fuch things as I have above hinted at, left afterwards it be more pleafantly, though
delufively, filled with charafters of httle or no importance, according to the faying of a
certain author :

THl' VL-irtl its fii-ft tincture long- retains.

What mechanic is there fo inattentive to the advantage of his child, as not to inftrud
him in his trade while he is young, whereby he may afterwards gain a comfortable fub-
fiftence ? So the carpenter teaches his Ton to handle the axe : the fmith brings up his' at the
anvil ; a perfon defigned for the facred office of the miniftry is bred in a liberal way, at
fchool : fo it becomes a king to have his fon, who is to Uicceed him, infl:ru(5ted in the laws
of his country whilft he is yet young. Which rule, if kings would but obferve, the world
would be governed with a greater equality of juftice than now it is. And, if y )u pleafe to
follow the advice I give, you will ftiow an example of no fmall confequence toother princes,
perfons of the fame high rank and diftincftion with yourfelf.



Chap. VII.

The Prince yields his attention but propqfes his doubts.

Tj^HE Chancellor having ended, the Prince began as follows : You have overcome
me, good Chancellor, with your agreeable difcourfe ; and have kindled within my
breaft a more than ordinary thirft after the knowledge of the law. There are
two things, neverthelefs, which make me flu(5tuate, fo that, like a fliip in a ftorm, I knov./
not which way to diretft my courfe. One is, when I recoiled; how many years ftudents of
the law are taken up, before they arrive at any competent knowledge of it ; which dil-i
courages me, left I employ all my younger years in like manner : another thing is, whether
to apply myfelf to the ftudy of the laws of England, or of the Civil Laws, which are fc'
famous throughout the univerfe : for a kingdom ought to be governed by the beft of laws,
according to the Philofopher, " Nature always covets what is beft." Wherefore I would
willingly attend what you advife in this matter. To whom the Chancellor: Sir ! there ii
no fuch myftery in thefe things, as to require abundance of deliberation ; and therefore i
fliall give you my thoughts upon the matter without keeping you in lufpenie.




0)1 the Laws of E?igla?icL 393



Chap. VIII.

IFhat k)wiv!ed2;e of the Law is necejjary for a Prince.

ft^ p^HE Philofopher, in the firft of his Phydcs, fays, " 'Tis fuppofed that we then
S know everything, when we apprehend the caufes and principles thereof as high
gJ. up as the firft elements :" upon which the Commentator obferves, that by prin-
ciples, Ariltotle meant the efficient caufes, that by caufes, the final caules are intended, and
by elements the matter and forni : now in the laws there are not, properly fpeaking, matter
and form, thefe being what go to the compofition of natural things ; but fomething
analogous to them, however, viz., certain elements, out of which they arife, as Ciill:oms,
Statutes, or Acfls of Parliament, and the Law ot Nature : whereof the laws of pa/ticular
kingdoms confift, as natural things do, of matter and form ; what we read or write confifts of
letters, which are called the elements of reading and writing. As for the Principia, which
the Commentator calls the efficient caufes, thefe are no other than certain Univerialia, which
the learned in the law, as well as mathematicians, call Maxims, in rhetoric they are called
Paradoxes, the civilians call them Rules of Law. They are not difcoverable by ftrefs of
arguments or logical demonftrations, but as is faid (Secundo Pofteriorum) by induction, by
the affillance of the fenles and the memory : wherefore, in the firll of his I^hyfics, Ariftotle
has it, that " Principles are not made up of other things, nor one of another. But other
things proceed from them ;" wherefore, according to the fame author in tlie firif ot his Topics,
it is, that " every principle carries its own evidence with it, fo that there is no difputing with
thofe who deny firft principles : " becaufe, as the fame Philofopher writes in the firft of his
Ethics, " Principles do not admit of proof by reafon and argument." Whofocver therefore
defires to get a competent uuderftanding in any faculty of fcience, mull by all means be well
inftru(fted in the principles thereof. For, by reafoning from thefe principles, which are
univerially acknowledged and uncontell:ed, we arrive at length at the final cauies of things.
So that, whoever is ignorant of thefe three, the principles, caufes, and elements of any fcience
muft needs be totally ignorant of the fcience itfelf ; on the other hand, when thefe are
known, the fcience Itfelf is known too, at leait in general and in the main ; though not
diftindlly and completely.

So we judge that we know the law of God, in knowing what is faith, hope, charity the
facraments and God's commandments : leaving other myfteries in Divinity to thofe vho
prefide in the Church. Wherefore our blefled Saviour fays to his difciples, " Unto you it is
given to know the myfteries of the kingdom of God, but to others in parables, that leeing
they might not fee, and hearing they might not underftand." And the Apoftle cautions,
" Not to think of one's felf more highly than we ought to think " (Rom. xii. 3 and 16).



■"'■1'



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394 '0^^ the Laivs of Rn<rla7id.

And, in another place, " Not to niind higli things, not to be wife in our own conceits." So
my Prince, there will be no occalion for you to fearch into the arcana of our laws with fuch
tedious application and fludy ; it will be fufficient, as you have made fome progrefs in
grammar, to ufe the fiuiie method and proportion in the fiudy of the laws. As to gram-
matical learning, which confills of l-'.tymology, Orthography, I'rofodia, and Syntax, as fo
many fprings or fountains naming together to complete it ; you are not fo perfeft a mafter,
it is true, as to be acquainted with all the particular rules and exceptions comprehended
under each of thele ; but yet that general knowledge of nrammar, which you have acquired,
is fufficient tor your purpofe, from whence you may be juftly ftyled a grammarian. In like
iTianner you may be deemed a lawyer in fome competent degree, when, as a learner, you fliall
become acquainted with the principles, caufes, and elements of the law. It will not be con-
venient, by fevere ftudy, or at the expenfe of the beft of your time, to pry into i ice points
of law ; fuch like matters may be left to your judges and couniel, who in England are called
Serjeants at Law, and others well {killed in it, whom in common fpeech we call Apprentices
of the law: you will better pronounce ju.igments in your courts by others than in perfon :
it being not cuftomary for the kings of England to fit in court, or pronounce judgmen:
themfelves ; and yet they are called the king's judgments, though pronounced and givei.
by others: as Jehoihaphat aflerted, that " they judged not for man, but for the Lord, whi.
was with him in the judgment " (II Chron. xix. 6.) Wherefore, moft gracious Prince, yoi.
will foon, with a moderate application, be fufficiently inftrufted in the Laws of England, it lo
be you give your mind to it. Seneca, in an epiflle to Lucillus, fays, " There is nothing but
what great pains and diligent care will get the better of." I know very well the quicknefs
of your apprehenfion and the forwardnefs of your parts; and I dare (ay, that in thof;
ftudies, though a knowledge and pradice of twenty years is but barely futficient to qualify
for a judge, you will acquire a knowledge fufficient for one of your high quality, within the |
compafs of one year ; and in the meanwhile attend to, and inure yourfelf to martial exerciles,
to which your natural inclination prompts you on io much, and llill make it your diverfion, '
as fliall beft pleafe you, at your leilure.



Chap. IX.

.,•/ liiu'^ vohoje guvernment is political cannot cliaiige tlw Laws.

HE next thing, my Prince, at which you feem to hefitate, fhall, with the
"W^ ;^^ fame cafe, be removed and anfwered, that is, whether you ought to apply your-



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