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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fuch a courfe and method of proceeding a guilty perlbn can efcape tlie punifhment due t )
his crimes; llich a man's life and coiifervation would be reftraint and terror iufficient t >
thofe who fhould have any inclination to acquit him. In a profecution carried on in thi ;
manner there is nothing cruel, nothing inhunian ; an innocent perfon cannot iufter in lif;
or limb: he has no reafon to dread the prejudices or calumny of his enemies, he will not,
cannot, be put to the rack, to gratify their will and pleafure. In fuch a conltitution, unde •
fuch laws, every man may live fafely and fecurely. Judge then, good Sir! which law i;
rather to be chofen, putting yourfelf in the private capacity ot a fubjed.



Chap. XXVIII.

The Prince owns his conviflion. I

*0 whom the Prince I fee no difficulty at all in the cale, my good Chan-
cellor, to make me hefitate, or waver as to the choice I am to make ; particularly

^ in the manner you require and propofe. For, who would not rather live under

a law which renders life fecure and happy, than where the law is found infutficient for
proteftion, and leaves a man defencelefs, under a feries of infults and barbarities from one's
enemies? That man cannot in any wife be fafe, either in his lite or property, whom his
adverfary, in many cafes which may happen, will have it in his power to convict out of the
mouth of two witneffes, l\ich as are unknown, produced \i\ court, a'ld pitched upon by the
profecutor. And, though in confcqucnce of their evidence he be not punifiied with death,




0)1 the Laws of E?2gland. 4 1 3

yet an acquittal will not leave him in a much better condition after the queftion has been
put, which cannot but afFe6t the party with a contraftion of his linews aiul limbs, attended
with conlknt diforders and want of health. A man who lives under fuch a government as
you defcribe, lives expofed to frequent hazards of this fort: enemies are deflo;nino- and
defperately wicked. Witneffes cannot well bring about fuch a wicked device, when, what
evidence they give in muft be in open Court, in the prefence and hearing of a jury of twelve
men, perfons of good charadter, neighbours where the facft was committed, apprifed of the
circumftances in queflion, and well acquainted with the lives and conveifitions of the
witnelTes, efpecially as they be near neighbours, and cannot but know whether they be worthy
of credit, or not; it cannot be a fecret to every one of the jury what is done by or amongll
their neighbours. I know of myfelf more certainly what is a doino; at this time in Ba'Tois,
where 1 refide, than what is doing in England: neither do 1 think it polfible that fuch
things can well efcape the obfervation and knowledge of an honeft man, as happen fo near
to his habitation, even though tranlaited with fome kind ot lecrecy. But, fince thefe things
are fo, I admire very much that the law of England, which in this refped is fo commodious
and defirable, fhould not obtain all the world over.



Chap. XXIX.

IVhy there are not Inquejls of t-xvelve men in other countries.



^i^^HANCELLOR. At the time your highnefs was obliged to quit England, you
V^^ were very young, confequently the natural difpofition and qualities of your native
r^(^ country could not be known to you ; had the cale been otherwife, upon a com-
parifon of the advantages and properties of other countries viith thofe of your own, you
would not be furprifed at thofe things which now agitate and difturb you. England is a
country fo fertile, that, comparing it acre tor acre, it gives place to no one other country : it
almoft produces things fpontaneoufly, without man's labour or toil. I'he fields, the plains,
groves, woodlands, all forts of lands, fpring and profper there fo quick, they are io luxLiriant,
that even uncultivated fpots of land often bring in more profit to the occupant than thofe
which are manured and tilled ; though thofe too are very fruitful in plentiful crops of corn.
The feeding lands are likewife encloicd with hedge-rows and ditches, planted with tre;s,
which fence the herds and flocks from bleak winds and fultry heats, and are for the moft
part fo well watered, that they do not want the attendance of the hind either day or nignt.
There are neither wolves, bears, nor lions in England ; the fheep lie out a nights without
their fhepherds, penned up in folds, and the lands are improving at the fime time : whence
it comes to pafs that the inhabitants are feldom fatigued with hard labour, they lead a life
I. -3 H-






..-, ; it 111".'.'






414 0)1 the Laws of RnglajuL

more fpiritual and refined : fo did the patriarchs of old, who chofe rather to keep flocks
and herds, than to diftiirb their peace of mind with the more laborious employments of
tillage and the like : from hence it is that the common people of England are better
inclined and qualified to difcern into fuch caufes which require a nice examination than thofe
who dwell upon their tarms, and are conftantly employed in husbandry affairs, whereby
they contra(5l a rufticity of underlfanding. England is fo thick-fpread and filled with rich
and landed men, that there is fcarce a fmall village in which you may not find a knight, an
efquire, or fome fubllantial houfeholder, commonly called a Frankleyne, all men of con-
fiderable eftates : there are others who are called Freeholders, and many Yeomen of eftates
fufficient to make a fubllantial jury, within the delcription before obferved. There are
feveral of thofe Yeomen in England who are able to difpend by the year a hundred pounds
and more. Juries are very often made up of fuch, and, in caufes of cc ifequence, they
confifl: of knights, efquires, and others, whofe particular eftates in the whole amount to
upwards ot three hundred poimds a year. Wherefore it is not to be imagined that perfms
in fuch wealthy circumftances can be fuborned or prevailed on to perjure themfelves ; they
are fuppofed to be reftrained, not only through a religious principle, but alfo as they /eg trd
their honour and reputation, as they would avoid the very great fcandal and detriment whxh
muft accrue by fuch behaviour; and further, left the infamy ftiould extend to and afljdt
their heirs. Other countries, my Prince, are not in fuch a happy fituation, are not i j v ell
ftored with inhabitants. Though there be in other parts of the world perfons of rank and
diftincflion, men of great eftates and poffeftions, yet they are not fo frequent, and fo n.'ar
fituated one to another, as in England; there is nowhere eli'e fo great a number of land-
owners: in a wliole town in any other country you can fcarce find a man of fuffi ;iei cy
enough to be put upon a jury ; for, except in large cities and walled towns, there are very
few, befides the nobility, who are poft'eftbrs of eftates or immoveable goods to any icon-
fiderable value. The nobility do not keep in their hands any great fcope of feeding-la ids ;
it does not comport with their rank and quality to cultivate vineyards, or put their hands to
the plough ; and yet the main of their polTeflions confifts in vineyards and arable lands,
except fome meadow grounds which lie along the great rivers, and the woodlands,' fhe
pafture of which is in common to their tenants and neighbours. How can it then be that
in fuch countries a jury can be UKule up of twelve lioneft men of the neighbourhood near
where any faft in queftion is brought on to trial, feeing they cannot be well called of the
neighbourhood who live at any remote diftances r It will be very difficult to make up a
jury of twelve men, though remote from the place where the faft in quef'lion lits,: after that
the party accufed fhall have challenged his thirty-five peremptorily, who lived neareft to
the place. Wherefore in thoic countries they nuifl: make up a jur)', either of perfons living
at great diftances fVom the place where the fii6t was committed ; perfons wholly unacquainted
with the parties and their circumftances ; or the jury muft confift of people of interior



071 the Laivs of RngUuid. 41 5

rank, who have no proper notion either of fhame or infamy, who have no eflates or
charafters to lofe ; fo prejudiced and incapable in point of education, as to be able clearly
to difcern on which fide the truth lies. Thefe things confulered, you may ceafc, my Prince,
your furprife why that law, by means of which in England the truth is inquired into, is not
in common to other countries, becaufe other parts of the world cannot furnifh juries of fo
great fufficiency, or equally qualified.



Chap. XXX.

The Prince comme>ids the way of proceeding by Juries.
w4RINCE. Though we have already agreed in it, that " comparifons be xhous,"




yet the Civil Law, as you have made out the comparifon, and fet f )rth the
reafons, is delivered trom all imputation of blame or dcfeil : for although you
have preferred the Laws of England to it, yet the defeft is not in the law itfelf; neither the
Civil Law nor the firft legiflators iland impeached ; you have only demonftrated that the
country where it prevails is the occafion ot it ; by means ot" which it does not fo effeftually
get at the truth, in dubious cafes, as the Laws ot England do ; that the Law of England, in
the cafe juft now difcuffed by you, is better accommodated for England than the Civil Law,
is out of difpute ; and we cannot have tlie leall: inclmation to introduce the Civil Law
inftead of it. But this fuperior excellence of the Law of England does not happen through
any blameable defect: in the other law, but, as you fiy, the wealth and populoufnefs of the
country are the cauie. • .



Chap. XXXL

Whether the proceeding by Jury be repugnant to the Laiv of God.

\'i^Wi) ^^> "^y good Chancellor, though the methgd whereby the Laws of England fift
out the truth, in matters which are at iifue, highly pleafes me ; yet there rells

cr^^^i) one doubt with me, whether it be not repugnant to Scripture. Our blelfed
Saviour fays to the Pharifees (St. John viii. 17), " It is written in your law that the tefti-
mony of two men is true." And, in confirmation, he lubjoins, in the very next verfe, '■ I am
one that bear witnefs of niyfelf, and the Lather that fent me beareth witnefs ot me." The
Pharifees were Jews ; wherefore It is the fame thing to lay, " It is written in your law,' as to
fay, " It is written in the Law of Mofes," which was no other than the Law ot God, given
by Mofes to the children of Ifrael ; wherefore to contradiiit this Law of Moles, is, in ctiect,
the fime as to contradid the Law of God ; from whence it follows, that the Law ot England



.; ,;^ , r -,- I .. .



I' >:r .ion ni

.•..r!;,};.,-v.^



4 ' "^ On the Laws of England.

deviates from this law of God, which it does not fee.n hiwful in any wife to impiirrn. It is
written ahb (Matt, xviii. i6) that our Saviour, fpeaking of offences, and forgiving c ne
another, amongft other things, deHvers himfelf thus, " If thy brother will not hear thee, then
take with thee one or two more, that, in the mouth of two or three witnelTes, every word
may be eftabliOied." Now, if in the mouth of two or three witnefles God will eilablifh ever"
word ; why do we look for the truth, in dubious cafes, from the evidence of more than two
or three witnefles ? No one can lay better or other foundation than our Lord hath laid.
This is what, m fome meafure, makes me hefitate concerning the proceedings according to
the Laws of England, in matters of proof, wherefore I defire your anfwer to this objecTiion.



Chap. XXXII.
The Clmncellor s Anjwcr. '

<^M HANCELLOR. The Laws of England, Sir ! do not contradi(5l thefe paFages
■>-5^ of Scripture for which you feem to be fo concerned; though they purlue a
\^A method fomewhat different in coming at, and difcovering the truth: how does
that law of a general council prejudice or condemn the teflimony of two witnefles, N-hu-eby
it is provided, that the Cardinals fliall not be convifted of any crime, unlefs upon the depofi-
tion of twelve witnefles ? If the teftimony of two be true, li fortiori, the teftimony of twelve
ought rather to be prefumed to be fo. The rule of law fays, " The more always contai.is in
it that which is lefs." So, the repayment of whatfoever the hoft fpent more than the vvo-
pence, towards the taking care of the man who fell amongft thieves, was promifcd to je ■)aid
punctually to him by the good Samaritan, when he came again. Shall not an impeached
perfon, who endeavours to prove himfelf to have been in another place at the time (j\ the
taift alleged and committed, be obliged to produce more than two or three witnefles, when
the profecutor has proved, or is ready to prove, the charge by as many .? So that perfoii who
takes upon him to convift any number <>f witnefles of perjurv, mulT: of neceflity produce a
greater number of witnefles againft them ; lb that the teflimony of only two or three' wit-
nefles fliall not, in all cafes, be prefumed to be true. But the meaning of the law is this,
that a lefs number than two witnelTcs fliall not be admitted as fuflicient to decide the truth in
doubtful cafes. And this appears from Bernard, (Extra, de Tefti. Cap. Licet in Glufla ordi-
naria) where he puts many cales, in which, by the laws, more than three witnelTes are required ;
in fome cales, Ave, in others, ieven. And, that the truth in fome cafes may )C proved by
two witnefl^es only, when there is no other way of difcovering it, is what the laws of England
likewife aflirm. As, where fads are committed upon the high fea, without the body of any
county, which may be afterwards brought to trial before the Admiralty-Court; farts of tliis



.. ,t r;[.'.:



On the Laivs of Rjighuul. 417

kind, by the conftitution of England, are to be proved by witnelfcs, without a jury. In like
manner are proceedings before the Lord Conftabie and b'.arl Marlhal, upon a firt committed
in another kingdom, fo as the cognizance of it belong to the jurifdiLtion ol the Court of
Chivalry. So, in the courts of certain liberties in England, where they ]iroceed by the Law
of Merchants, touching contracfts between merchant and merchant, beyond the feas, the proof
is by witneiTes only ; becaufe, in fuch like cafes, there is not of the neighbourhood a number
fufficient to make up a jury ot twelve men : as in contracts and other cafes arifmg within the
kingdom is ufually done. In like manner if a deed, in which witneiTes are named, be
brought into the courts of law, proccfs Ihall go out againft fuch witnelfes, who, together with
a jury, fhall inquire upon their oaths whether it be tlie deed of that party whofc it is fup-
pofed to be. Wherefore, the law of England does not call in queilion any other law which
finds out the truth of witnefles, efpecially when the neceOity of the cafe fo requires The
Laws of England obferve a like method, not only in the cafes already put, but i i f )me
others which it is not material now to enlarge upon : but it never decides a caufc only by
witneiTes, when it can be decided by a jury of twelve men, the bell: and moll effecflual
method for the trial of the truth ; and, in which refpecfh, no other laws can compare with it.
This proceeding is lefs liable to the hazard of bribery, fubornation, or other linitler
methods; neither can this method of proceeding in any cale mifcarry for want of evidence :
what the witnefles give in upon oath cannot but have its due effedl ; neither can a jury be
perjured, but that for fuch their crime they mulf expeft a very fevere punilhment, and the
party thereby aggrieved is, and will be entitled to his remedy. Thele things are not tranf-
acfted at the will and pleafure of Grangers, or parties wholly imknown, but upon the oaths
of honell:, confiderable and creditable men, who value their charaCfer, who are neighbours to
the parties concerned, to whom there can be no caufe ot challenge or dilfrull: as touching the
verditl they fliall give in. Oh ! what detelfable villanies often happen from the method of
proceedings by witnefles only. If a man contrail matrimony in a clandcltine manner, and
afterwards before witnefles betroth himfelf to another woman : in this cale the Contentious
Court will oblige him to confummate with this laft woman; and the Penitential Court will
adjudge him to cohabit with the firlf, if he be dujy required thereto; and he will be obliged
to do penance every time he fliall be informed againfl for cohabiting with the other woman,
to whom he was fo betrothed; nay, though in both courts one and the fame man be the
judge. May one not fay in the cafe before us, as it is written concerning the Behemoth
(Job xl. 17), that indeed it is very intricate and perplexed? The perlon contracfing iliall
never afterwards cohabit with either of the women, or with any other woman, without Leing
profecuted for fo doing. A mifchief of this kind cannot polTibly happen in any cafe, accord-
ing to the proceedings of the Law of England, though a IJehemoth himfelf were lolicitor in
the caufe. Are you not now convinced, moll excellent Prince, tiiat the more objeitions you
raife againft the Laws of England, the more amiable and refplendent they appear r



;fhr



■■ I;.) Oft



4i8



On the Lcnvs of England.



Chap. XXXIII.



IVhy Jome of our Kings have taken difgnft at the Laws of England.

RINCE. I am convinced that the Laws of England eminently excel, beyond
the laws of all other countries, in the cafe you have been now endeavouring to
explain ; and yet I have heard that fome of my ancellors, kings of England, have
been fo far from being pleafed with thofe laws, that they have been indiillrious to introduce,
and make the Civil Laws a part of the Conftitution, in prejudice of the Common Law; this
makes me wonder what they could intend by fuch behaviour.




Chap. XXXIV.




"The Chancellor's AnfiJcer.

SJ^ HANCELLOR. You would ceafe to wonder, my Prince, if you would pli afe
ferioufly to confider the nature and occafion of the attempt. I have already
given you to underftand that there is a very noted fentence, a favourite maxim or
rule in the Civil Law, that "that which pleafcs the Prince has the eft-e^-l of a law." The
Laws of England admit of no fuch maxim, or anything like it. A king of Englanc does
not bear fuch a fway over his fubjefts, as a king merely, but in a mixed political capacity :
he is obliged by his Coronation Oath to the obfervanceof the laws, which fome of our kino-s
have not been well able to digeft, becaufe thereby they are deprived of that free exercile of
dominion over their fubjedts, in that full extenfive manner as thofe kings have who pr' fide
and govern by an abfolute regal power ; who, in purfuance of the laws of their refpeiitive
kingdoms, in particular, the Civil Law, and of the aforelaid maxim, govern their fubjeds,
change laws, enaft new ones, inflidl: puntfliments, and impofe taxes, at their mere will and
pleafure, and determine fuits at law in iuch manner, when, and as they think fit. For which
reafon, your anceftors endeavoured to fViake off this political frame of government, in order to
exercife the fame abfolute regal dominion too over their lubjeds, or rather to be at their full
fwing to ad; as they lift : not confidering that the power of both kings is really, :.nd in etFecT:
equal, as is fet forth in my aforefaid treatife, De Natura Legis Natunu, viz., tlr.t it is not a
reftraint, but rather a liberty to govern a people by the juft regularity of a political govern-
ment, or rather right reafon ; that it is thegreateft lecurity both to king and people, and takes
off no inconfiderable part of his royal care. That tliis may the better appear, you will pleafe



071 the Laws of Ejigland. 419

to confult the experiences yoii have had of both kinds of government ; to begin with the
regal, fuch as the King of France exercifcs at prefent over his fubjeds ; and, in the next place,
you will pleafe to confider the eftcCt of that regal political government which kings of ling-
land exercife over their fubjecfts.



Chap. XXXV.

"The ii!co}ive)iie)ii:es in Fra)!ce by means of the regal Government.
lOU may remember, moft worthy Prince, in what a condition you obferved the




villages and towns of France to be, during the time you fojourned there.

Though they were well fupplied with all the truits of the earth, yet they > ere fo
much opprefled by the king's troops, and their horfes, that you could fcarce be accommodated
in your travels, not even in the great towns ; where, as you were informed by the in-
habitants, the foldiers, though quartered in the fame village a month or two, yet neither
did nor would pay anything for themfelves or horfes ; and, what is lT:ill worfe, the inhabitants
of the villages and towns where they came were torced to provide tor them, gratis, wines,
flefli, and whatever elfe they had occafion for ; and if they did not like what they found, the
inhabitants were obliged to fupply them with better from the neighbouring villages ; upon
any non-compliance the Ibldiers treated them at fuch a barbarous rate, that they were
quickly neceilitated to gratify them. When provifions, fuel, and horfe-meat fell fnort in
one village they marched away full fpeed to the next, wailing it in like manner. They
ufurp and claim the fame privilege and cuftom not to pay a penny tor necellaries, either for
themfelves or women, whom they always carry with them in great numbers, fuch as flioes,
ftockings, and other wearing apparel, even to the fmalleft trifle ot a lace, or point; all the
inhabitants, wherever the foldiers quarter, are liable to this cruel opprellive treatment : it is
the fame throughout all the villaties and towns in the kinmlom, which are not svalled.
There is not any the leall: village, hut what is expoted to the calamity, and once or twice in
the year is fure to be plundered in this vexatious manner. Inu'ther, the kmg of I'Vance
does not permit any one to ufe fait, but what is bought of himfelf, at his own arbitrary price,
and if any poor perfon would rather choole to eat his meat without fait, than to buy it at
fuch an exorbitant dear rate, he is notwithltanding compellable to provide himfelf with lalt,
upon the terms aforefaid, proportionably to what lliall be adjudged fufficient to fubiili the
number of perfons he has in family : befides all this, the inhabitants of b'rance give e 'ery
year to their king the fourth part of all their wines, the growth of that year, every vintner
gives the fourth penny of what he makes of his wines by iale. And all the towns and
boroughs pay to the king yearly great funis of money, which are aflelltd upon them tor the



42 o 0)1 t/ie Laws of Englafid.

expenfes of his men-at-arms. So that the king's troops, which are always confiderable, are
fubfifted and paid yearly by thole common people, who live in the villages, boroughs, and'
cities. Another grievance is, every village conftantly finds and maintains two crofs-bowmen
at the ieafl: ; fome find more, well arrayed in all their accoutrements, to ferve the king in liis
wars, as often as he pleafeth to call them out, which is frequently done. Without any con-
fideration had ot thele things, other very heavy taxes are alfelTed yearly upon every village
within the kingdom for the king's fervice; neither is there ever any intermilTion or abate-
ment of taxes. Expoled to thefe and other calamities, the peafants live in great hardfhip
and mifery. Their conrtant drink is water, neither do they talte, throughout the year, any
other liquor ; unlefs upon fome extraordinary times, or feftival days. Their clothing con-
fifts ot frocks, or little ihort jerkins made ot canvais no better than common fickcloth ; they
do not wear any woollens, except of the coarfefl fort, and that only in the garment under
their frocks ; nor do they wear any trowfe, but from the knees upward ; their legs being
expofed and naked. The womeii go barefoot, except on holidays : they do not e.it tiefli,
unlets it be the fat of bacon, and that in very fmall quantities, with which they ni.u.^ a ioup ;
of other forts, either boiled or roafted, they do not fo much as tatle, unlefs it be of t le
inwards and offals of fheep and bullocks, and the like, which are killed for the ufe o;' t.ie
better fort of people, and the merchants: for whom alfo quails, partridges, hares, anc the
like, are referved, upon pain of the gallies: as for their poultry, the foldiers conl'unie tiei i,
fo that fcarce the eggs, flight as they are, are indulged them by way of a dainty. And if it
happen that a man is obferved to thrive in the world, and become rich, he is prefent y
affefled to the king's tax, proportionably more than his poorer neighbours, whereby he s
loon reduced to a level with the reft. This, or I am very much miftaken, is the pr^ifei t



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