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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S^.!<^% felf to the ftudy of the Laws of England, or to that of the Civil Laws, for that
the opinion is with them everywhere, in preference to all other human laws: let not this






b J.



or






Oh the Laws of Rnglaiul. 395

difficulty, Sir ! give you any concern. A king of England cannot, at his pleafure, make any
alterations in the laws of the land, for the nature of his government is not only rc^al, but
political. Had it been merely regal, he would have a power to make what innovations and
alterations he pleafed in the laws of the kingdom, inipofe tallages and other hardlliips upon
the people, whether they would or no, without their confent, which fort of government the
Civil Laws point out, when they declare " (^od principi placuit legis habet vigoreni :" but it
is much otherwife with a king whofe government is political, becaufe he can neither make
any alteration or change in the laws of the realm without the confent of the fubjecl:, lior
burthen them againft their wills, with ftrange impofitions, fo that a people governed by
fuch laws as are made by their own confent and approbation, enjoy their pro[>erties fccurely,
and witliout the hazard of being deprived of them, either by the king or any other ; the
fame things may be efl-ecfled under an abfolute prince, pro'/ided he do not degem rate into
the tyrant. Of fuch a prince, Ariftotle, in the third of his Politics, fays, "It is be;ter for a
city to be governed by a good man than bv good laws." But becaufe it does not always
happen that the perfon prefiding over a people is lo qualified, St. Thomas, in the book
which he wrote to the king ot Cvprus (De Kegimine Principum), wiflies that a kingdom
could be fo inftituted, as that the king might not be at liberty to tyrannize over his people ;
which only comes to pafs in the prefent cafe ; that is, vVhen the fovereign power is retrained
by political laws. Rejoice, therefore, my good Prince, that fuch is the law of that Jsin'Tclom
to which you are to inherit, becaufe it will afford, both to yourfelf and fubjecfts, the greateft
fecurity and fatisfaiftion. With fuch a law, faith the fame St. Thomas, all mankind would
have been governed, if, in the Paradile, they had not tranfgrelTed the conmiand of God.
With the lame was the whole nation ot the Jews governed, imder the theocracy, wiien God
was their king, who adopted them for his peculiar people : till, at length, upon their own
requeft, having obtained another lort of king, they loon fourid reafon to repent them of
their foolifh and rafh choice, and were fufficiently humbled under a defpotic governnient :
but, when they had good kings, as fome there were, the people profpered and lived at eafe ;
but when they were otherwife, their condition was both wretched and without redrefs. Of
this you may fee a particular account in the Book of the Kings. This fubjecft being
fufficiently difculTed in a fmall piece I formerly drew up on purpofe tor your ufe, concerning
the Law of Nature, I fliall forbear at prelent to enlarge.






J r



396



0;z the Laws of K7igla}id,



Chap. X.



The Prince propofes a qiieftion.

'RINCE. How comes it to pafs, my Chancellor, that one king may govern his
fubjecls in fuch an abfolute maimer, and a power in the fame extent is vmla\/ful
for another king : feeing kings are equal in dignity, I am furprifed that they are
not likewife equal in the extent and exercife of their power.




Chap. XI.



The Chancellor's anfwer.

HANCELLOR. I have, Sir I in the fmall piece referred to, fufficiently made
appear, that the king who governs by political rules has no lefs power than him
who governs his fubjeds at his mere will and pleafure ; yet, that the authority

which each has over their fubjefts is vaflly different, I never difputed. The realbn of

which I fhall, in the befl: manner I can, endeavour to explain.




Chap. XII.




How kingdoms ruled by regal government fir fi began.

I^ORMERLY, men who excelled in power, being ambitious of honour and
renown, fubdued the nations which were round about them by force of arms ;
1^ they obliged them to a ftate of fervitude, abfolutely to obey their commands,
which they eftablifiied into laws, as the rules of their government. By long continuance
and fufFering whereof, the people, though under fuch fubjeftion, finding themfelves pro-
tedted by their governors from the violence and infults of others, lubmitted quietly to them,
thinking it better to be under the proteftion of fome government, than to be conti.iually
expofed to the ravages of every one who fhould take it in their heads to opprefs them.
From this original, and reafon, fome kingdoms date their commencement, and the perfons
invefted with the power, during fuch their government, from ruling, (^regendo), alfumed
and ufurped to themfelves the name of ruler, or king {rex), and their power obtained the
name of regal. By thefe methods it was that Nimrod firll acquired to himfelf a kingdom,



-t;4^^



m



On the Laws of Rnglaiui. 397

though he is not called a king in the Scripture, but a mighty hunter before the Lord. For
as an hunter behaves towards beails, which are naturally wild and free, fo did he oblige
nnankind to be in fervitude and to obey him. By the fame methods Belui reduced the
Affyriaiis ; fo did Ninus by the greatelb part of Afia : thus the Romans arrived at univerfal
empire : in like manner kingdoms began m other parts of the world. Wherefore, when the
children ot Ifrael dcfired to have a king, as all the nations round about them then had, the
thing dilpleafed God, and he commanded Samuel to fliow them the manner of the king who
fhould reign over them, and the nature of his government ; that is, mere arbitrary will and'
pleafure, as is fet forth at large, and very pathetically, in the firll; Book of Samuel. And thus,
if I miftake not, molT: excellent Prince, you have had a true account how thofe kingdoms firlt
began, where the government is merely regal. I fhall now endeavour to trace the original
ot thofe kingdoms, where the form of government is political, that lb, the hrlT: ri e and
beginning of both being known, \uu may more eafily difcern the reafon of that wide dif-
ference which occaiioncLl your quelllon.



Ch.^p. XIII.
Hoiv Kingdoms ruled by Political Government firjl hegdu.

\V . AUGUSTINE, in his book DeCivitare Dei, has it, " That a people is a body
O^^ of men joined together in fociety by a confent of right, by an union ot interefts,
^^^<ii/'^ and for promoting the conmion good;" not tliat a people fo met together in
fociety can properly be called a body as long as they continue without a head ; for, as in
the body natural, the head being cut off, we no longer call it a body, but a trunk ; lo a
community without a liead to govern it, cannot in propriety of fpeech be called a body
politic. Wherefore the Philofopher, in the firlf of his politics, fays, " VVhenfoever a
multitude is formed into one body or ficiety, one part muft govern, and the rel1: be
governed." Wherefore it is abfolutely necelliiry, where a company of men combine and
form themfelves into a body politic, that fome one fhould prefide as the governing principal,
who in kingdoms goes idlially under the name of king (rt-.v, a regendo). In this onier, as out
of an embryo, is formed an human body, with one head to govern and control it ; io from a
confufed multitude is formed a regular kingdom, which is a fort of a myftical body, with one
perfon as the head, to guide and govern. And as in the natural body, according to the
Philofopher, the heart is the firfl thing which lives, having in it the blood which it tranl nif,
to all the other members, thereby imparting life, and growth, and vigour; fo in the body
politic the firft thing which lives and moves is the intention of the people, having in it the
blood, that is, the prudential care and provifion for the public good, which it tranlmits and
J. .3 F.



,.;,,,.-n



398 On the Laws of E?ig!cuid.

communicates to the head, as the principal part, and to all the reft of the members of the
faid body politic, whereby it fubfiits and is invigorated. The law under which the peopk
is incorporated may be compared to the nerves or finews of the body natural ; for, as by theft
the whole frame is fitly joined together ami compared, fo is the law that ligament, to go back
to the truert derivation of the word lex, a ligaiido, by which the body politic and all its
feveral members are bound together and united in one entire body. And as the bone-, aid
all the other members of the body preferve their huiLtions, and difcliarge their feveral
offices by the nerves, fo do the members of the community by the law. And as the head
of the body natural cannot change its nerves or fmews, cannot deny to the feveral parts
their proper energy, their due proportion and aliment of blood, neither can a king, who is
the head of the body politic, change the laws thereof, nor take from the people wliat is
theirs by right, againft their contents. Thus you have. Sir, the formal inftirution of every
political kingdom, trom whence you may guefs at the power which a king may exercift with
refpedl to the laws and the fubjeft. For he is appointed to protedl his fubjecls in their Jiv es,
properties, and laws; for this very end and purpofe he has the delegation of power from
the people ; and he has no jull claim to any other power but this. Wherefore, to giv;- a
brief anfwer to that queition of yours concerning the different powers which kings chrm
over their fubjefts, I am firmly of opinion that it arifes folely from the different natui es of
their original inftitution, as you may eafily colledt from what has been faid. So the kingdc m
of England had its original from Brute, and the Trojans who attended him from Italy and
Greece, and became a mixed kind of government, compounded of the regal and politic d.
So Scotland, which was formerly in iubjec5lion to England in the nature of a duchy, becai le
a government partly regal, partly political. Many other kingdoms, from the fame ori .dn d,
have acquired the fame form of government ; whence Diouorus Siculus, in his fecond book
of Ancient Hiftory, concerning the Egyptians, fays thus : " 'Ihe kings of I'^gypt origintilly
did not live in fuch a licentious manner as other kings, whofe will was their law ; but were
fubjeft to the fame law, in common with the fubjeft, and elleemed themfelves happy in iMch
a conformity to the laws." For it was their opinion that many things were done by thofe
who gave a ioofe to their own will, which expoled them to frequent and great dangers and
difadvantages. The fame author in his fourth book writes thus : " He who is chofeu king of
Ethiopia leads a life conformable to the laws, and behaves in every refpeft according to the
cuftoms of his country, neither rewarding nor puniftiing any one, but according to the laws
handed down from his predecefTors." In like manner he writes concerning the Ki ig of Saba,
in Arabia P'elix : in the fame manner concerning other kings in ancient hiftory who, pur-
fuing the fame methods of government, reigned prolperoufly and with reputation.



Oil the Laws of Rugland.



399



Chap. XIV.
^TJie Prince abridges the tivo foregoing Chapters.

SX0 RINCE. You have, my good Chancellor, with the perfpicuity of your difcourfe,
difpellcd that darknefs with which my underftanding was obfcurcd, and I now
^M perceive plainly that no nation ever formed themfelves into a kingdom by their
own compad and confent, with any other view than this, that they might hereby enjoy what
they had againll all dangers and violence, in a fecurer manner than before ; and confequently
they would find themfelves difappointed of their intention, if afterwards the king they had
fo fet over them fliould defpoil tlieni of their properties, which was not lawful for any of
the community to do before fuch appointment made. And the people would be in yet a
more difmal ftate in cafe they were to be governed by ftrange and foreign laws, fuch as they
had not been ufed to, fuch as they could not approve of: more efpecially if thofe laws fhould
affeft them in their properties, tor the prefervation whereof, as well as of their perfons, they
. freely fubmitted to kingly government ; it is plain that fuch a power as this could never
originally proceed from the people ; and if not from them, the king could have no fuch
power rightfully at all. On the other hand, I conceive it to be quite otherwile with that
kingdom which becomes fo by the fole authority and abfolute power of the king. In this
cafe the people become fubjert to him upon no other terms but to obey and be governed by
his laws, that is, his mere will and pleafure. Neither, Sir, has it flipt my memory, what
you have elfewhere, with folid reafons, demonftrated in your treatife, concerning the Law of
Nature, that the power of both kings is in cfle6t equal ; feeing a poflibility ot doing amifs,
which is the only privilege the one enjoys above the other, cannot be called an addition oi
power, any more than a polTibility to decay or die, which, as it is only a pollibility oi being
deprived of fomething valuable, fuch as life or health, is for this reafon rather to be called a
ftate of impotency, a real weaknefs. " For power," as Boetius oblerves, " is always for fome
good end or purpol'e ; and therefore to be able to do mifchief, which is the iole prerogative
an abfolute prince enjoys above the other, is fo far from increafing his power, that it rather
leffens and expofes it. The blell'ed fpirits above, which are already fixed in their feats cf
happinefs, and put beyond a poflibility of finning, are in that rcfped: fuperior to us in power,
who are always liable to do amifs, and to work iniquity with greedinefs. It only now
remains to inquire whether the law of England, to the tl:udy whereof you invite me, 1-e as
well adapted and efTedual for the government of that kingdom as the Civil Law, by w hic'i
the holy Roman Empire is regulated, is generally thought to be, for the government or the
refl: of the world. Satisfy me but in this point by fome clear and convincing proof, and I
will immediately apply myfelf to the fl:udy you propofe, without troubling you with any
more of my fcruples.



r".;_




400 Oji the Laws of K?igla?i(l.



Chap. XV.

All laws are the Lazv of Nature, Ciijloms, or Statutes.

HANCELLOR. I obferve, Sir, that you have given attention, and remember
7K\K^'\^i well what I have hitherto been difcourfing upon, therefore you have the better
'TS'k^^^W title to receive an anfwer to your queftiun. Know, then, that all human laws
are either the Law of Nature, Cultoms, or Statutes, which are alio called Conftitutions ; but
the two former, when they are reduced into writing, and made public by a futHcient authority
ot the Prince, and commanded to be obferved, they then pafs into the natui : of, and are
accepted as conftitutions or flatutes, and, in virtue o\ fiieh promulgation ai:d command,
oblige the fubje^t to the obfervance ot them under a greater penalty than otherwife they
could do. Such are a confiderable part of the civil laws which are digelled in great volumes
by the Roman Emperors, and by their authority commanded to be obferved : whence the '
obtain the name of the Civil Law, in like manner as all other imperial e^liL:i:s or rtatitei.
If, therefore, under thefe three diftindions of the Law of Nature, Cuftoms, and Statitet,
the fountains and originals of all laws, 1 fliall prove the law of England eminently to excel,
then I fhall have evinced it to be good and effectual for the government of that kingdom.
Again, if I clearly make out that it is as well accommodated for the good of that State a :
the Civil Lavs s are for that of the empire, then I fliall have made appear that the law O'"
England is not only an excellent law, but that, in its kind, it is as well chofen as the Civi
Law. In proof of this, I proceed.



Chap. XVL I

T'/u' Law of Nature hi all countries is the fame. ' |

W^ fl^ HE Laws of England, as far as they agree with, and are deduced from, the LaA'
¥>ifi "^ °^ Nature, are neither better nor worfe in their decifions than the laws of all
^^;2Jl?C:fe^ other ftates or kingdoms in fimilar cafes. Lor, as the Philofopher fa /s, in the
fifth of his Ethics, " The Law of Nature is the fame, and has the fame force all the world
over." Wherefore I lee no occafion to enforce this point any farther; fo now th_: inquiry
refts, what the cuifoms and ftatutes of England are ; and, in the tirll place, we will conlider
and look into the nature of thofe cuftoms.



071 the Laws of E}iglaHil.



401



Chap. XVII.



The CujioDis cf EngUmd are of great antiquity.

^HE realm of England was firft inhabited by the Britons ; afterwards it was ruled
?^-^ and civilized under the government or the Romans ; then tlie Britons prevailed
c^ir^ss:^ again ; next, it was polTefied by the Saxons, who changed the name of Britain
into Eno;land. After the Saxons, the Danes lorded it over us, and then the Saxons prevailed
a fecond time ; at lall: the Normans came in, whofe defceivdants retain the kingdom at this
day ; and during all that time, wherein thofe feveral nations and their kings [)revailed,
England has neverthelefs been conftantly governed by the lame cuitoms as it is at pi ;fent ;
which, it they were not above all exception good, no doubt but lome or other of" tliolc i-cuigs,
from a principle of juftice, in point ot reafon, or nioved by inclination, would have made
fome alteration, or quite aboliflied them, elpecially the Romans, who governed all the relt
of the world in a manner by their own laws. Agr.iii, lome ut the aforelaid kings, who only
got and kept poflefiion of the realm b) the fword, were enabled by the furie means to have
dertroyed the laws and introduced their own. Neither the laws uf tlie Romans, which are
cried up beyond all others for their antiquity ; nor yet the laws of the V^enetians, however
famous in this refpec^, their ifland being not irihabited lo early as I^rit.iin ; neitlier was
Rome itfelf at that time built ; nor, in fliort, are the laws or any other kingdom in the
world fo venerable for their antiquity. So that there is no pretence to lay or infmuate to the
contrary ; but that the laws and cuftoms of England are not only good, but the very heft.



Chap. XVIII.

Ha-iv Statutes are made in England.

^T only remains to be iiuiuired whether the Statute Law of England be good or
not. And as to that, it does not flow folely from the mere will of one ma 1, as
the laws do in thofe countries which are governed in a delpotic manner; wiiere
fometimes the nature of the conftitution fo much regards the lingle convenience ot ih-
legiflator, whereby there accrues a great difadvantage and difparagement to the lubjed:.
Sometimes, alfo, through the inadvertency of the prince, his inadivity and love ot ea(e, fuch
laws are unadvifedly made as may better deferve to be called corruptions than laws. But




)!■(



4° 2 0)1 the Laws of Rfiglnjul.

the ftatutes of England are produced in quite another manner : not enafted by the foie will
of the prince, but witli the concurrent confcnt of the whole kingdom, by their reprefentatives
in Parliament. So that it is morally impolfible but that rliey are and mull be calculated for
the good of the people : and they mull: needs be full of williom and prudence, fmce they
are the refult, not of one man's wifdom only, or an hundred, but fuch an alfembly as the
Roman Senate was of old, more than three hundred feledl perfons, as thofe who are con-
verfant in the forms and method of fummoning them to Parliament can more diftindlly
inform you. And if any bills paffed into a law, enaded with fo much folemnity .md fore-
fight, fhould happen not to anfwer the intention of the legiflators, they can immediately be
amended and repealed, in the whole, or in part, that is, with the fame confent and in the
fame manner as they were at firlf enafted into a law. I have thus laid before you, my
Prince, every fpecies of the laws of England; you will of yourfelf eafily a:)preliend their
nature, whether they be good or not, by comparing them with other laws; a id, when you
will find none to ftand in competition with them, you mult acknowledge them to be not only
good laws, but fuch in all refpedts as you yourfelf could not wifh them to be better.



Chap. XIX.

'The difference between the Civil Laws and the Laws of England.

NE thing only remains to be explained, concerning which you have raifed fome
fcruples, that is, whether the laws of England are to be looked upon fo ufjful,
fo well accommodated to the particular Conftitution of England, as the civd
imperial Laws are for that of the empire. I remember a laying of yours, my Prince, that
comparifons are odious ; and therefore I am not very fond of making them. You will 'fee
better reafons whereby to form your judgment, and which of the two laws may deferve l]he
preference, by confidering wherein they difter, than by taking my opinion in the matter upon
truft. Where they agree, they are equally praifeworthy ; but in cafes where they differ, tliat
law which is the moft excellent in its kind, alter mature confideration, will eminently appear
fo to be : wherefore I lliall produce fome fuch cafes, that you may weigh them in an equal
balance, and thereby know for certain, which law is the more juft and rational in its decifions :
and firft, I Ihall propofe fome inilances of cafes which appear to me the moft confiderable.





On the Laivs of Rn gland, 403

Chap. XX.

The fir ft cafe wherein the Civil Laws and the Laws of England differ.

,,^ HERE any have a controverfy depending before a Judge, and they come to a
'' ■'^ trial upon the matter of faft, which thofe who are fkilled in the laws of England
^ term the iffue of the plea in queftion, the ifliie of fuch plea, by the rules of the
Civil Law, is to be proved by the depofitions of witnefles, and two witnefTes are held
fufficient : but, by the laws of England, the truth of the matter cannot appear to the Judge
but upon the oath of twelve men of the neighbourhood where the fa6t is fuppofed to be done.
Now, the queftion is, which of thofe two ways of proceeding, fo different, is to be elte med
the more rational and effeiftual for the difcovery of the truth. That law which takes th : bell
and moft certain way of finding out the truth is, in that refpeft, preferable to the other,
which is ot lefs force and efficacy : in the examination hereof, I proceed thus.

Chap. XXI.
The inconveniences of Trials by U''it)ieffes only.
Wf% Y the courfe of Civil Law, the party who, upon the trial, holds the affirmative



c3 fide of the queftion, is to produce his witnefles, whom he is at liberty to name at
E,^ his pleafure. On the other hand, a negative is incapable of being proved ; 1
mean direiflly, though indiredly it is otherwife. Now, he may well be thought a perion of
an inconfiderable interefl:, and of lefs application, who, from the grofs of mankind and all
his acquaintance, cannot find out two fo devoid of confcience and all faith who, throui^h
fear, inclination, affection, or for a bribe, will not be ready to gainfay the truth. So that the
party, to make good his caute, is at his liberty to produce two of fuch a flamp ; and if the
other party had ever fo much mind to objcd againll them, or their evidence, it will not
always happen that they are or can be known by the party defendant in the caufe, in order
to call in queftion their life and converfation, that as perfons of a profligate charader they
might be crols-examined ; upon which account their evidence might be fet afide : and,
feeing their evidence is in the affirmative, it is not fo capable of being overthrown by
circumftances, or any other indireift proofs. Who, then, can live fecurely with refpe(:'t
to his life or eftate under fuch a law, which is fo much in favour of any one who has a m \\>!\
to do mifchief ? And what two wicked wretches have uf\ially lb little caution as not to
form to themfelves beforehand a perfeft ftory of the fadt about which they know they are to
be examined, with every minute circumllance attending it, as if they had been true and



i3;?> A



... !.,:;.



■^1



404 0?i the Laws of Rnglajid.

real? " For the children of this world (as our Saviour fays) arc in their generation wifer
than the children of light." So wicked Jezebel produced in judL'ment two witnefles, fons
of Belial, to impeach Naboth, whereby he loft his life, and Ahab took poffefTion of his
vineyard (i Kings xxi. i 1-16). Again, by the teftimony of two elders, vvlio were judges,
Sufanna, the virtuous wife of Joacim, liad been put to death as an adulterefs, had not God



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