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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itate and condition of the peafantry of France. The nobility and gentry are not fo much
burthened with taxes. But if any one ot them be impeached for a flate crime, tliough(by
his known enemy, it is not ufual to convene him before the ordinary judge, but he is very
often examined in the king's own apartment or fome luch private place ; fometimes onlylby
the king's purfuivants and meffengers : as foon as the king, upon fuch information, fhali
adjudge him to be guilty, he is never more heard of; but immediately, without any otl'ier
formal procefs, the perfon fo accufed and adjudged guilty is put into a fack, and Ly night
thrown into the river by the officers of the provoft-marfhal, and there drowned : in which
fummary way you have heard of more put to death than by any legal procefs. But Ifill,
according to the Civil Law, " what pleafes the prince has the effect of a law." O, her things
of a like irregular nature, or even worfe, are well known to you, during youi abode in
France, and the adjacent countries ; atfted in the moft deteftable barbarous manner, under no
colour or pretext of law than what I have already declared. To be particular would draw
out our difcourfe into too great a length. Now it remains to confidcr what effed that
political mixed government, which prevails in England, has, which fome of your progenitors

On the Laws of Englmul.


have endeavoured to abrogate, and initcad thereof to introduce the Civil Law ; that, from
the confideration of both, you may certainly determine with yourfelf which is the more
ehgible, fince, as is above-mentioned, the Philofopher fays, " that oppofites laid one by the
other, do more certainly appear;" or, as more to our prcfent argument, '■ hapiMnclTes by their
contraries are bell illuftratcd."

Chap. XXXVI.

The advantages in England^ wl'.ere the Govemment is of a mixed nature.

JTiJ^iT^N England no one takes up his abode in another man's houfe, without le; ve of
J 'nYcy '^h'^ owner firll: had, unleis it be in public inns; and there he is oblii ed to
__^feS^ difcharge his reckoning, and make full fatisfacT:ion, for what accommodations lie
has had, ere he be permitted to depart. Neither is it lawful to take away anotlier man's
goods without the conient oi tlie proprietor, or being liable to be called to an account for it.
No man is concluded, but that he may provide himlelf with fait, and other necelTaries for
his family, when, how, and where he pleafes. Indeed, tlie king, by his purveyors, may
take for his owir ufe necelTaries for his lioufchold, at a reafonable price, to he alTcHed at the
difcretion of the conftables of the place, whether the owners will or not: but the king is
obliged by the laws to make juefent payment, or at a day to be fixed by the great officers
of the king's houfchold. The king cannot defpoil the fubjcet, without making ample fatif-
faflion for the fame. He cannot, by himfelf or his nnniltiy, lay taxes, lublidies, o- any
impoiition, ol wliat kind fuever, upon the fubjecfl ; he cannot alter the laws, or make new
ones, without the exprefs confent of the whole kingdom in Parliament aflembled : every
inhabitant is at his liberty fully to ufe and enjoy whatever his farm produceth, the truits of
the earth, the increafe of his flock, and the like : all the improvements he makes, wliether
by his own proper indufli-y, or of thofe he letains in his lervice, are his own to ufe and
enjoy, without the let, interruption, or denial of any : it he be in any wile injured, ur
oppreffed, he ihall have his amends and fatibfaLT:ion againll the party oflending : hence it is,
that the inhabitants are rich in gold, filver, and in all the necelhnies and conveniences of
life. They drink no water, unlefs at certain times, ujiou a reli^Mous Icore, and by way of
doing penance. They are fed, in great abundance, with all lorts of flelli and hfli, of which
they have plenty everywhere; they are clothed throughout in good woollens; their beddi ig
and other fuiniture in their houfes are of wool, and that in great ftore ; they are alfo w .'h"
provided with all other forts of houfehold goods and necelfary implements for hulhandry :
everyone, according to his rank, hath all things which conduce to make lite ealy and happy.
They are not fucd at law but before the ordinary judge, where they are treated with mercy
and jullice, according to the laws of the land ; neither are they impleaded in point of
I. ..; I.

4^2 On the La-ivs of England.

property, or arraigned for any capital crime, how heinous loever, but before the king's
judges, and according to the laws of the land. Thefe are the advantages confequent from
that political mixed government which obtains in I'.ngland : from huice it is plain, what the
effefls ot that law are in prac'-fice, which fome of your anceftors, kings of England, have
endeavoured to abrogate : the eftecls of that other law are no lefs apparent, which they fo
zealoufly endeavoured to introduce among us; fo that you may eafily diflinguifli them by
their comparative advantages; what, then, could induce thofe kings to endeavour fuch an
alteration, but only ambition, luxury, and impotent palliun, which they preferred to the
good of the ftate ? You will pleafe to confider, in the next place, my good Prince, fome
other matters which will follow to be treated of.


Concerning tJie Regal and the Political Government. ,

W(Mf^M^T THOMAS, in the book which he addrelTes to the King of Cvnruj ( ')t
S^^^A I^egini'iit; Principum), fiys, " That a king is given for the fake of the kinsdoai,
fj^J^r^'Q i^nd not a kingdom for the fake of the king." Confequentlv, all kingly ;)0\ 'er
ought to be applied for, and to centre in the good of the kingdom or llate ; which, in effecft,
confifts in the defence of the fubjeft from the incurfions of other nations, and in the p o-
tecftion of their lives and properties from injuries and violence as to one anorher. A king
who cannot come up to this chara(5ter is to be looked upon as weak; but^ if throuidi lis
own palFions, poverty, or want of economy, he be in fo diftreiled a condition that he cannot
keep his ha'.ids off troni feizing on his fubjeft's property, by means whereof he fo inipo-
veriflies them, that their eftates are not lufficient to maintain both, in how much a ifiore
impotent delpicable condition may we julll)' reckon inch a prince to be, than if he were
barely unable to defend them againft the injuries ot others ? Such a prince, indeed, is
not only to be called weak, but weaknefs itielt ; and is tar from being a proper head pf a
free people, whillt he labours under fuch prellures and obligations. On the other hand,
he may well be efteemed a free and powerful prince, who can protect his fubjeds againft a
foreign force as againft one another : their properties are fafe with refpeifl to their neigh-
bours and fellow-citizens, not liable to the oppredion or depredation of any ot e, not even
though the prince himfelf ftiould liave palhoriS and occafions ot his own to gratif ' ; tor wlio
can be more powerful or free than that prince who cannot only bring otliers within due
bounds, but can alfo get the better of his own pallions ^ which that prince can, and ahvays
does, who governs his people in the political vvay. So that experience fufficientlv iliows
you, my Prince, that thofe anceftors of yoiu-s, v.'ho were lo much let upon abolilhing the

0;/ the Laws of E^ivlaucL


political form of government, had they been able to have compafied it, would not only
have been difappointed of their aim and wifli of enlarging their powei' tin reby, but would,
by this means, have expofed both themfelves and the whole kingdom to far greater mifchief
and more imminent danger. Neverthelefs, what we liave fliown from the experience of the
ill effefts of a deipotic government, which may feem to check, and lefTen the power of an
abfokite prince, do in reality rather proceed from a want of due care, and from mif-
behaviour, than from any defeft in that law by which he governs. And therefore the
regal power or dignity itfclf is not hereby lefiened : fmce the [lower, whether of an abfokite
prince, or of one limited by laws, as 1 have evidently iliown in the aforefaid treatife of the
Law of Nature, is equal. But that the power of an abfokite prince is attended with much
more difficulty in the exercife ot it, and with lels fecurity both to king and p -ople, the
foregoing obiervations do, I think, fufficiently demonftrate. So that a wife prin e would
not wifli to change the political form ot government for an ablolutc. iVnd for the fune'
reafon it is that St. Thomas is fuppofed to wilk that all tlie kingdoms and nations of the
world were governed in the political way.


"■The Prince defires tlie ChoJicellor to proceed.

ji^RINCE. You will, I hope, excufe it, my Chancellor, that while I Lave been
^X, propofing my doubts and queries, I have obliged you to digrefs fo tar from the
[^^-^p^ main point. What you have explained by the way has been very inffruftive,
though it may have a little taken you off from your principal defign. I now earneftly
defire you forthwith to proceed ; and, as you at firll fet out, and promifed me that you
would pleafe to declare fome other cafes, in the decifion whereof the Laws of England and
the Civil Law of Nations obferve a different method of procedure.

Ch.-vp. XXXIX.

Of t lie legitimation of ch.ildren born before matrimony. -.

^^^j^^^MANCELLOR. Sir! In obedience to your requeft, I will endeavour to lay
Ivi^tt^^ before you fome other call-s, in which the laws aforefaid obferve a diflerent
^^%St| determination : which is preferable, I will not take upon me to fay, but Ikall
leave it to your own judgment. The Civil Law legitimates children born before matri-

424 071 the Licnvs of Efi gland.

mony, as well as after, and qualifies them to fuccecd in the inheritance of the parents.
The Law of England does not admit children born before matrimony to take by heirfliip.
It calls fuch an offspring natural, but not legitimate. In the cafe before us the Civilians
extol their law, becaule tliey lay that it is an encouragement to marriage, by which the fin
is done away, and lo the fouls of both parties are preferved from damnation. They allege,
further, that the prefumption is, that fuch was the intention of the parties, as it were, by
way of contrad:, at the time of committing the at't ; the fubfequent marriage demonflrates
as much. Moreover, the Church admits and alluws them for legitimate. I'hcfe, I think,
are tlie chief arguments by which they juility and defend the Civil Law. To this the
learned in our law reply, that the fin of concubinage, in the cafe propofed, is not purged by
the fubfequent marriage, though in fome meafure the punilfhment of the parties offending
may be mitigated. 1 hey urge further, that the guilty in this cafe are the lefs penitent for
their offence, in proportion as they find the laws more favourable to it ; upon vviiich con-
fideration they likewife become more apt to repeated ad-Is of this kind, and fo ai^t in con-
tradiftion both to tlic commands of God and the ordinances of the Church. So that 'his
law not only fliares in the guilt ot the offender by abetting fuch a practice, but is quite be ide
the nature and definition ot a good law, which, as has lieen already obferved, " is a 1 holy
landlion commanding things which are honefl:, and forbidding the contrary." Now the Civil
Law, in the cafe before us, rather prompts on the party to do things which are diflionjft.
Nor is it a fufficient defence of this law, to fay that the Church admits fuch iffue as legiti-
mate. Since our holy mother the Church difpenfes with many things which llie does .lot
allow of to be done; fo the Apofl-le diffolved the reftraint upon virgins, by way of difpni-
fation, when at the fame time he adviied the contrary, and would rather that all mei w ;re
even as himfelf And tar be it that fo good a mother iliould deny her compalhon to her
fons, whofe cale is lo much the more deplorable, becauie they often tall into tliis tin, tjeing
betrayed by that encouragement which the Civil Law allows it : and the fubfequent marriage
is a good argument to the Church of their being truly penitent for what is paft, and of ;heir
refolution to contain for the future. The Law of England has a quite contrary elfecT- ; it
does not give any encouragement to fuch a criminal artion ; neither does it fcrecn the
offenders, but lays a refl:raint upon them, threatens and inflifts a punifiiment, that ihey may
not offend. The inclination is predominant enough m itlelf", without any other incitements;
it rather wants a curb. The propenfions to lull are very importunate and conftant ; and
mankind, feeing they cannot be continued of and by themlelves, naturally (.,elire to be
perpetuated in their fpecies, which, without that, muff be foon extinguiflied. Lveiy living
creature has an inclination to be affmrilated to the firfl caufe, which is of a perpetual eternal
duration: the feniation of contact, by which generation is etFcfted, is a greater gi'atification
than the fenfe of tafte, which only preferves the individual. Wherefore Noah, by way of
puiufliment to his fon, who had difcovered his fiither's nakednefs, curfed Canaan his

li !-l M 1 "■

On the Laws of E?i gland. 425

grandfon, and thereby aggravated his Ton Ham's punifhment more than if he himfelf had
been accurfcd. Wherefore that law which punifhes fuch an offspring, affefts the fin with a
feverer penalty than that which immediately aff"ed:s the of!endcr in his own perf >n. Now
I muff leave it to you to judge, how truly and zealoufly the Law of England profecutes a
criminal amour. Jt is not content only to condemn the offspring to be illegitimate, but
debars it from fucceeding to the patrimony of the parents. Is not this a chafte law, a law
of order, does it not more effecftually difcourage this fm than the Civil Law, which remits
the fm of fornication without exafting any punifhment at all ?

Chap. XL. '

IVhy baje-born children are not in England by the Jiibjequent marriage legitimated.

^ ESIDES, the Civil Law fays that a natural fon is the ion of the people ; concerning
'"" which a certain poet,

Cui pater eft populus, pater eft fibi nullus et omiiis,
Cui pater eft populus, non habet ipfe patrem.

" Lie who has the people for his father feems to h ive no father at all, or rather every one :
he who has the people for his father has in reality no proper father." Since fuch an ofFsprin^,
when born, had no father, how by any fubfequent a6t he can have one is not known in nature,
A woman has by two feveral men two fons ; one of the faid men intermarries with her;
which of the two fons is legitimated by fuch marriage ? Opinion may prevail, but reafon
cannot decide ; there was a time when both of them passed in eftimation for children of the
people or community, when neither knew nor had any other father : wherefore it would feem
inconfiifent and unreafonable that a fon born afterwards of the fame mother in lawful wedlock,
whofe original is confeffedly known, fliould be debarred of his inheritance, and that either of
the other two fons born out of marriage fhould take as heir; efpecially in England, where
the eldelt: fon, lawfully begotten, inherits to the lands: any indifferent perfon would judge it
no lels unrealonable it a bale-born child flioukl have an equal fhare in the inheiatance with
one who is lawfully begotten. And by the Civil Law the inheritance is divided amongft the
male ilTue. St. Augulfine, in his book (De Civitate Dei), has it that Abraham "gave all that
he had unto Ifiac, but unto the ions of the concubines which Abraham had Abraham ^av.-
gifts." Mis obfervation is, that thereby it ieems to be intimated that the inheritance of right
does not belong to a Ipurious ilfue, but only a competent living. Thus St. Augulfine ; an i
under the term fpurious he includes all fuch children as are illegitimate, or born out of wed-
lock ; as the Holy Scriptures do likewife, which never give to any fuch the appellation of
baifard. You lee St. Augulfine, nay, and Abraham too, makes no ilnall difference as to the

U: [r,\ :>•/)

4^6 On the Laws of JLho-IcdkI.

fucceirion ot a ipurious or legitimate offspring. I<\irther, another Scripture fets a mark of
infamy upon all illegitimate children in the following metaphorical exjireffion :— " The mulii-
plying brood of the ungodly iliall not thrive nor take deep rooting from bafl:ard flips, nor 1: y
any fail foundation" (Wifd. iv. 3). The Church alio docs the fame by not admitting them into
Holy Orders ; or, if it difpenfes with them thus far, yet they are never permitted to enjoy
any dignity or pre-eminence in the Church. Jt is but fit and reafonable, therefore, that
human laws fliuuld deprive fuch perfons of the privilege of fuccellion : the Scriptures alfo, in
point ot birth, judge inch interior to thole who are begotten in lawt'ul marriage. Gideon,
that mighty man of valour, is laid to have had threefcore and ten fons of his body begotten,
for he had many wives, and but one ion by his concubine ; and yet this one fon flew all his
brethren, except Jotham, the youngeft, who hid himfelf. More wickedneft is found to have
been in that one baftard-llip than in threefcore and nine hiwfully begotte 1. It is an o!d
faying. If a baftard be good, it is moftly by accident, or fpecial grace ; if wicked, ir is but
his nature. An unlawful brood is thought to derive a corruption and ilain from tie tranf-
grellion of the parent, without any concurrent fault of his own. So all of us have contr i6ted
a very great corruption from the fin ot our firll parents, though not of fo oppro )riuus a
nature : the blemifli with which baftards are atFeded is v/idely different tVom that )f legi-
tunate children. The mutual culpable lull: of the parents aftedts their offspring, v\hich does
not give itfelf fuch a loofe in the lawful chafte embraces of the matrimonial lite. Tl e fin of
fornicators is mutual and in common ; and as it bears a near relemblance, therefore, with
the firft ^\\\, it leaves a worfe impreffion on the ilTue than that of any other fin which men
commit in private without any accomplice. So that a child fo born may rather be callec the
offspring of fin itfelf than of the guilty perfons. Wherefore the wiidom of Solomon dklin-
guifliing between a fpurious and a legitimate offspring, ot the latter fays, " How beautiful is
the offspring of the chafte and nuptial bed ! Tlie memory ot it is immortal, being acknow-
ledged both by God and man." Whereas the other is not fo much as acknowledged amongfl
men; for which reafon they are called the children ot the people or community: and of
thefe the fame I'ook of Wifdom fays, " Children begotten ot unlawtul beds arc witnefles of
wickednefs againil: their parents in their trial." For, being afked about their parents, they
reveal their imperfecftions, as the wicked fon of Noah did his father's nakednels. It is there-
fore thought that the man who was born blipid, concerning whom the Pharifce fiiii, "Thou
wail: altogether born in fin," that he was a baftard, and fo, in that ienle, borr in fin : and
when they add immediately, " and doit thou teach us ?" they feem to intimate as if a ballard
were not qualified by natin-e, like the ifliie of a lawful bed, either for knowledge or tor
teaching others. Therefore that law does not rightly determine which eciuals ballards with
children lawfully begotten in the iuccefiion to the inheritance ot their parents, when the
Church judges them not duly qualified for orders, or fit to prefide in God's inheritance. The
Scriptures likewiie put a wide diiVunftion between them, as we have above obferved ; and

O/i tJic Laws of England. 427

nature itfelf makes a difference in her gifts by fetting, as it were, a natural mark or blemifh
on the natural children, though fecretly iniprefied upon the nnnd. Which now of thofe two
laws, in the cafe before you, do you hold with and give the preference to?

Chap. XLI.
"The Prince s approbatiun.

RINCE. Indeed I give the preference to that law wliich does nioft efU'dually
&^ call out fin and eftablilh virtue. I am alfo of opinion that fuch are leall entitled
p^ to the benefit of human laws, whom the law of God judges unworthy, ard whom
the Church excludes from her orders and dignities, as being by nature more prone to

Chancellor. I tliink you judge in the cafe very rightly. I will now recolledl: fome
other cafes wherein the Civil and our Laws difatrree.

Chap. XLII.

On the rule of tl:e Civil Imiv, " Partus Jeqititiir ventre))!."

Ip HE Civil Laws decree that the iflue ahvays follows the venter, that is, the condition
_^ ^ of the mother: for example, if a bond-woman be married to a free-man, the
^>(f^— 2^^ children fhall be bond. Again, if a bond-man marrieth a free-woman, the
children fhall be free : by the laws of England " the iflue does not follow the condition of
the mother, but always that of the father;" fo that a free-man begetteth free children
whether he be married to a bond or free woman. So a bond-man, who is married can be^et
none but bond-children. Which law, think you, is more equal in its dccifion ? Is not that
a cruel law which, without any fault of the party, adjudges the iflue of the free man to be
bond ^ neither is that law deemed by fome lefs cruel, which adjudges the iflue of a free
woman to be bond : the civilians fay that their laws give the befl determination in the cafe ;
for they fay, " A good tree cannot bring forth bad fruit, neither can a corrupt tree brin^
forth good fruit." And it has the confent of all laws that every plant belongs to tl e foil
where it is planted: the child alio has a more certain knowledge of the mother who bore him
than of the father who begot him. To this the fages in our laws reply that a child lawfully
begotten hath no more certam knowledge of the one parent than of the other; for both laws.

428 On the Laws of Rjigland.

however wide in other refpe^ls, agree in this, that he is the father whom the marriage declares
lo to be. Is it not more rcafunable that the illue lliould follow the condition of the fathi r
than that of the mother, fince Adam, fpeaking of fuch as are joined in wedlock, fays, "And
they two fliall be one flefli ;" which our Saviour, in the Gofpcl, thus explains : — " They are
no more twain, but one flefh." And forafmuch as the male comprehends the female, the
whole flefli, fo made one, ought rather to regard and to be referred to the male, as the more
worthy. " Male and female created he them, and called their name Adam." The Civil
Laws themfelves allow that the woman always fliines by reflexion from her liufband, ;
whence (C. ])e Incolis, Lib. x. Ti. ft.) the text has it, " We advance women by giving
them the titles and honours of their hufl)ands : we honour them with the firnames of
our families. We proceed and decree for and againft them in the cour s of law in th ;
name of the hufliand. We change their habitations; but in cafe they af erwards marry a
man ot interior rank, they are deprived of their former honours, and follow the condiaon, as
well as habitation of the latter hufliand." And fince all tlie children, efpecially the, lear
the name of the father, and not of the mother, whence can it be that the fon, in refpec' ■: of
his mother, fhould lofe liis rank and follow her condition, when, at the fame time 1 ; is
known in law by the name of his father, who begot him : nay, the woman is diftinsaiidied
according to the rank and quality of her hufband, neither of which can fuffer diminulior, or
be fullied by any crime or bafe condition of the wife. TJiat law outrht to be accounted cruel
and unjuft which, without any the lealf pretence or reafon, leaves the fon in a bafe condition.
Again, as to the inheritance which the father, a free man, lying under no imputation, crime,
or difability in law, whereby forfeitures accrue, has, with great care and in luilry, acqu red.
for himfelf and family, that in the cafe before us the inheritance fliould pafs into the poJef-
fion ot a ftranger who took no pains in the acquifition thereof, feems very unjiill. h'urther,
the bafe condition of the child affefts the father's name with the fame blemiili. Again! that
muft needs be judged to be a hard and unjuft law which tends to increafc the fcrvituda and
to lefTen the liberty of mankind. Vox " human nature is evermore an advocate for hl^crty."
God Almighty has declared himfelf the God of Liberty : this being the gift of God
m his creation, the other is introduced into the world by means of his own fin and folly;

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