John Fortescue.

The works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) online

. (page 60 of 87)
Online LibraryJohn FortescueThe works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) → online text (page 60 of 87)
Font size
QR-code for this ebook


whence it is that everything in nature is fo defirous of liberty, as being a fort of rdbtution to
its primitive ftate. So that to go about to lelTen this is elteemed both wicked and cruel : it
is upon fuch confiderations as thcfe that the Laws of England, in all cafes, decL re in favour
of liberty. True it is, where the father is a bond-man, though married to a trei- woman, the
child is, by our laws, in the fame ifate of bondage with the father ; nor is this anreafonable
or unjuft, for a woman who has undervalued herfelf by marrying a bond-man is tlvjreby
made one flefh with him. In confequence of the laws above recited, (he follows the condition
of her huftiand, and by her own voluntary ad; hath put herfelf ur.der fubjedion to him, havino-
been before under no conftraint of the law fo to do. Tliofe who by ad: of lav, enter them-



On the Laws of E)iglaiid. 42-;

felves bond-men in the King's Courts, or fell themfelvcs into bondage without any conipulfion,
are in the lame cafe. I low, then, can the hiws make that ion tVee, whom the mother, in the
prefent inftance, has fo brought forth in her itate of fubjeftion ; for no hulband can ever be
fo much in fubjeClion to his wife, let her be of never \o high a rank orquahty, as this woman
hath made herfelf fubjedl: to her hufband, whom, though a bond-man, flie hath advanced to
be her lord, according to the fentence of God himfelf, pronounced in Holy Scripture, " That
every wite fliall be in iubjeftion to her hufljand, and he ibiall rule over her." What the
Civilians iay concerning the trifit ot a good or corrupt tree is more to our purpofe than to
theirs, fince every wife is either bond or tree, according to tlie condition of her hulband. And
in whofe foil, pray, does the hufliand plant, if not his own, when the wife is made one fleih
with him ? What if he hath grafted a ilip of good kind upon a crab-dock, fince tin- tree is
his property, is not the fruit ifdl his fruit, though it fivour of the (lock ? So the diildren
begotten of a woman are the huiband's, whether the mother be bond or tVee. Neverthelefs,
by the laws ot England, the lord of a bond-woman who is married to a freeman, without his
conlent firil had and obtained, I fay, in this cafe, though the lord cannot get her divorced
a vinculo matrimonii, it being expreisly faid in the Gofpel, " Whom God hath joined together
let no man put aiunder;" yet he fl-iali recover againll the free man all his damages which he
hath fuftained by reafon ot the lofs of his bond-woman, and of the fervice which fhe owed
him. This, I conceive, is the ium, fublfance, and manner of proceeding according to the
laws of England in the cafe now declared. And now, my Prince, what is your opinion of
the matter, and which of the two laws do you judge to be the moll: eligible ?



Cfiap. XLIII.
The Prince yields his ajje>it.

JRINCE. There is no pretence in reafon to doubt but that in this cafe the Laws
of England excel the Roman Imperial Laws ; and, for my own part, 1 always
^ff-'^^XjX think tiiat law moft eligible which fliows more favour than ieverity to the parties
concerned in it, and who are to be judged by it. b'or I remember an excellent rule which
fays, "that matters of hardiliip are odious, and ought as much as poilible to be reftraine I, but
favours are to be amplified, and extended to their full extent."

Chancellor. With good reafon. 1 wdl propound one cafe more, wherein tlii' two
laws differ, and then conclude, led: I prove tedious, whilll: I expatiate upon the variety of
more cafes, and the difference each law oblerves in its ilecifion, and fo my difcourfe would be
drawn out into fuch a length as, inftead of entertaining, to difgull you.

1. .3 K.



43 3 On the Laws of EiigUiud.



Chat. XLIV.

Concerning l/:e '■Tuition of Orp/unis.

^1 P^^^^' *^'^'' ^'^^^'^ i^oinmit the guardianOiip of orphans to the next in blood, whether
^(k W^'$ ^^^ relation be by the father's or mother's fide, that is, to every one as he itands
^2ij^33£^i;\ next in degree and order, to take by inheritance in cafe the orphan die. I'he .
reaion of this law is, " no one is prefumed to take more care of, or to have a greater regard
for the orphan, than he who is next in blood." The La-.vs of England determine quite
contrary in the cate. If an inheritance wliich is held in focage defcend to an orphan from
any relation by the father's fide, fiich orphan fliall not be in guardianfliip to any of his
father's relations; but he fhall be taken care of by the relations of his mother's fide. Attain,
if an inheritance defcend to him from any relation by the mother's fide, the orphan and fuch
his eftate fhall be under the care and direftion of tlie next akin by the fatlier's fide, and not
otherwife, until he come ot age. The law lays, " to commit tJie care of a minor to h'm vho
is the next heir-at-law is the fame as delivering up a lamb to the care of a wolf, that i;, t ) be
made a prey of." But if the inheritance be held by knight's-fervice, and not in focao-i-, t len,
by the laws of the land, the minor and his eftate iliall not be under the mana^rement ol his
relations of either fide ; but both fliall be under the care and direction of the lord of the fee,
until he arrive to his complete age of one-and-twenty. Who can be fuppofed better qjal.fied
to inftrud: him in deeds of arms, which, in virtue of his tenure, he is obliged to perfc^rn. for
the lord of the fee, than the lord himlelf, to whom fuch fervice is due from his niin ir, and
who is fuppofed to have a fuperior intereil to advance his ward in the world, in this and
other parts of education, than any of his own relations or friends ' The lord, in orJer to
have the better fervice from his tenant, will ule his utmoll: care, and may well be tliuught
better qualified to inftrue't him in this way than his own relations, who, probably, ii this
relpecft are prefumed, for the moll; parr, wholly ignorant and unpradifed ; efpeeially if his
eftate be but a fmall one. What is or can be of greater ufe to a minor, who, in confequence
of his tenure, is obliged to venture his life and fortune, if required, in the fervice of the lord,
than to be trained up in military difcipline whilll he is yet a minor.'' When he comes of full
age, he cannot decline the nature of his tenure, but is obliged to do fuit and 1 .Tvice to his
lord of whom he holds. Indeed, it will be of no fmall advantage to the kingUom that the
inhabitants be expert in arms, tor the Philofopher fays, " Every one behaves I) )l;ily in that
way in which he knows himlelt to excel." Is not this law, then, in your judgment, my
Prince, to be preferred to the other already defcribed ^.



Oil tlie Laws of R?igla}ul.



4 3'




Chap. XLV.

The Ediicalio)! of the yoiuig hluhilhy dtirhig their niinorily.

RINCli. It is [o ; fur in the firfl: inilance, as you obfL-rve, it provides with
greater care and eaiuioii tor the prefervation of an orphan than the Civil Law
^^i}l does: but 1 am much more pleafed with the other part of it; becaule, by this
means, our young nobility and gentry cannot fo cafily degenerate, but will rather, in all
likelihood, go beyond their ancellors in probity and Ci^urage, and in everything that is
virtuous and praiteworthy, being brought up in a fuperioi' and moie honourable family than
that of their parents; nay, though their fathers may have had the good fortui e to be
educated in the like manner before, yet the father's houle, even with this advantaa^, cannot
be compared to that ot the fuperior lord ; to whom both, in their turns, have been in ward.
Princes of the realm, being under the fame regulation, like as other lords, who hold
immediately from the king, cannot fo foon run into debaucheries, or a downright ignorance :
becaufe, during the time of their minority, they are brought up at tlie court. Upon which
account I cannot but highly commend the magnificence and fiate of the king's palace, :md J
look on it as an ncaden^.y for the young nobility of the kingdom to inure and emjdov them-
felves in robull and manly exercifes, probity, and a cenerous humanity. i\\\ which greatly
tend to the reputation and profperity of the kingdom, both at home and abroad ; and make
a great part of its iecurity againll invaders, and render it formidable both to its allies and
enemies. This advantage could not accrue to the ilate if the young nobility anil gentry
were to be brought up under the care and infpeflion of tlieir ow!i friends and relatioris, who
are but perfbns of the lame rank and quality with themfelves. As to the fons of the
burghers, and other freeholders m iocage tenure, it cann.ot be prejudicial to the public good,
if they be brought up among themfelves with perfons of their own degree, and though they
be not bound to perform any military fervices ; as, to any one who confiders aright, niay
very plainly appear.



Chap. XLVI.
Comerning open Theft and private Theft.
iHANCb'.LLOR. There are fome other cafes in which the Civil Law



the



f^ Common Law of Engl.uid differ. I'or mlLmce : the Civil Laws, in cafe of a
_^f^ manifcfl theft, where a perfon is taken in the fai5l, adjudge the criminal to reltore
fourfold ; and for a theft which is not fo manifelf, where the proof is not io plain, the judgment



432 0)1 the Laws of Engla^uL

is twice the value of the thing llolen. But tlie huvs of England, in either cafe, punifh the
party with death, provided the thing ftolen exceed the value of twelve pence. So in the
cafe of perfons who have been bond-men, and are {^t free, if afterwards they tnifl)ehave, and
prove ungrateful, the Civil Laws adjudge them into flavery again. But, by the laws of
England, he who is once made free is always fo, let his behaviour afterwards be what it will.
Other cafes there are not a few, of this and the like kind, which, for brevity's Htke, I pafs
over. In the two cales now propounded, I forbear to expatiate, or infifl; upon the fuperior
excellence of the laws of England : the properties of each law do not require fuch a nice
examination : befides, I doubt not, your own good natural genius fufficiently dillinguillies
between them.

Chap. XLVII.

The Prince i)tquires -ivJiy th.e Laws of England are not taught in our Univerjities.

^^^^MWINCIL. I think indeed that it requires no great labour or ftudy to determine
U\ '^0^ thefe two points. For though in England felons of all forts are every\.'htre
l^j^p^ punillied with death, yet they flill go on in defiance of all laws to the cont)-ar> :
and how much lefs would they abftain, if only a gentler punifhnient were threatened ai d
inflifled ? As for thole who have obtained their freedom, it would be hard if they flou d
always live under the lafh, as it were, and in fear of being again reduced to a ftate of
flavery, efpecially upon the pretence or colour of ingratitude, fmce pretences of this kii d
could never be wanting, the feveral inftances and fpecies of ingratitude being innumerabl :.
" Human nature, in cafe ot liberty, demands greater favours than is ufual in other c;, fes "
But, my good Chancellor, not to enter into the difquifition of any more cafes of this fort, I
beg you to inform me why the laws of England, which are fo ufeful, fo beneficial ^nd
defirable, are not taught in our univerfities, as well as the Civil and Canon Laws, and why
the degrees of Bachelor and Dodtor are not conferred upon the common lawyers, at' is
ufually beflowed on thofe who are educated in other parts of learning.



Chap. XLVIII.

The Chancellor's Anjwer.




iHANCELLOR. In the Univerfities of England the fcienccs are taught only in
[ the Latin tongue, whereas the laws of England are writ in, and made up of,
[ three feveral languages, b'.nglifli, French, and L.atin. Englifh, as the Common
Law, has moftly prevailed, and been uled among them, a great part of it being derived down



0)1 the Laws of EfigIa?!(L 433

from the old inhabitants, the Angles. I'Vench, becaufc the Normans, upon the coming in of
VVilHam, called the Conqueror, and getting pofleilion of the kingdom, would not permit
our lawyers to plead but in that language which they themfelves knew, and which the
advocates of France ule in their pleadings, and in their Parliaments. In like inanner the
Norman-French, after their coming into England, would not pafs any accounts of their
revenues, fave in their own native language, left they fliould be impofed upon : even in their
exercifes and diverfions, as hunting, dice, tennis, &c., they obierved the fame method ;
whence it has happened that the Englifli, from fuch their frequent intercourfe with the
French, have given in to the lame culloni, and to this very day, in their diverfions and
their accounts they fpeak FVench. In the courts of juftice they formerly ufed to plead in
French, till in purfuance of a law to that purpofe that cuftom was fomewhat reftrained, but
not hitherto quite diluled ; hrft, by realon ot certain law terms, whicli the pleaders exprefs
more aptly in l<>ench than in Englifh : in the next place, becaufe declarations upon original
writs cannot be formed fo properly and agreeably to the nature of thofe writs as in French,
in which language the forms of fuch declarations are learned and praftifed. Again, all
pleadings, arguments, and rcfolutions which pals in the king's courts are digelled into books
for the information of the young ftudents, and are reported in the French tongue. Many
Acfls of Parliament are penned in French, from whence it comes to pals that the modern
French is not the fame with that ufed by our lawyers m the Courts of Law, but is nuich
altered and depraved by common ufe ; which tloes not happen to the law-I'"rench ufetl in
England, becaufe it is oftener writ than fpoken : as to the Latin, all original and judicial
writs, all records in the king's Courts of Juftice, and fome Afts of Parliament arc penned
in that language. Wherefore the laws of tlngland being learned and prac^ifed in thofe
three feveral languages, they cannot be fo well ftudied in our univerfities, where the Latin is
moftly in ufe, but they are ftudied in a public manner and place, much more commodious
and proper for the purpofe than in any univerfity. It is fituated near the king's palace at
Weftminfter, where the Courts ot Law are held, and in which the law proceedings are
pleaded and argued, and the refolutions of the Court, upon cafes which arife, are given by
the judges, men of gravity and years, well read and pradifed in the laws, and honoured
with a degree peculiar to them. Here, in term time, the ftudents of the law attend in
great numbers, as it were at public fchools, and are inftru6led in all forts of law-learning,
and in the praiftice of the Courts : the fituation ot the place where they refide and ftudy is
between Weftminfter and the City of London, which, as to all neceftaries and conven ences
of life, is the beft fupplied of any city or town in the kingdom : the place of ftudy is net in
the heart of the city itfelf, v.'here the great confluence and multitude of the ir.habitants might
difturb them in their ftudies, but in a private place, feparate and diftincl by itfelf, in tlic
fuburbs, near to the Courts of Juftice atorefaid, that the ftudents, at their leilure, may daily
and duly attend with the greateft eafe and convenience.



434 On the Lcrdos of EiighnuL



Chap. XLIX.



Tlic dijpofition of the general ft I'.dy of the Laivs of EurlanJ.
«S| [l^nV^UT, my Prince, that the method and form of the fludy of the law may the better



i^ appear, I will proceeii and dcfcribe it to } ou in the bell manner I can. There



^Ci^t) belong to it ten lefler inns, and fometimeb more, which are called the Inns of
Chancery : in each of which there are an hundred itudents at the leaft ; and in fome of them
a far greater number, though not conftantly refiding. The ftudents are, for the moil: pa-t,
young men; here they ihidy the nature of original and judicial writs, \\ !iicli are the ve.y
firfl; principles ot the law: after they have made fome progrefs here, and ; re more advanced
in years, they are admitted into the Inns of Court, properly fo called ; of thefe there are four
in number. In that which is the leaft frequented there are about two Juindred ftudents. In
thefe greater inns a ftudent cannot well be maintained under eight and twenty pounds a /ear;
and, it he have a lervant to wait on him, as for the moil: part they have, the expenf is pro-
portionately more : for this realbn, the ftudents are fons to perfons of quality ; tho e of an
inferior rank not being able to bear the expenfes of maintaining and educating their :hi dren
in this way. As to the merchants, they feldom care to lelfen tlieir ftock in trade by being
at fuch large yearly expenfes. So that there is fcarce to be found, throughout the kingdom,
an eminent lawyer, who is not a gentleman by birth and fortune; confequently they hr've a
greater regard tor their characT-er and honour than thofe who are bred in anoth .t ,vay.
There is both in the Inns ot Court, and the Inns of Chancery, a I'ort of an academv, or
gymnafium, tit for perfons of their ftation ; where they learn tinging, and all kinds of mufic,
dancing and fuch other accompliftiments and diverfions, which are called revels, as are fuit-
able to their quality, and inch as are ufually pra6tifed at court. At other times, out ot^jterm,
the greater part apply themlelves to the ftudy of the law. Upon t'eftival days, and after the
offices of the church are over, they employ themlelves in the ftudy of facred and pipfane
hiftory : here everything which is good and virtuous is to be learned : all vice is dilcouraged
and baniftied. So that knights, barons, and the greateft nobility of the kingdom, often place
their children in thole Inns of Court ; not fo much to make the laws their ftudy, much lefs
to live by the proteftion, having hirge patrimonies of their own, but to forni t leir manners
and to preferve them from the contagion of vice. The difcipline is lb excelle;it, that there
is fcaixe ever known to be any piques or differences, any bickerings or difturbai.ces amongft
them. The only way they have ot puniftiing delinquents is by expelling them the fuciety :
which punildiment they dread more than criminals do imprifonment and irons: for he who
is expelled out of one fociety is never taken in by any of the other. Whence it happens,.



Oil tJic Laws of RjivlcvuL 435

that there is a conltant harmony amonglt them, the greateft friendfliip and a general freedom
of converfation. I \\f:cA not l)e particLilar in dcfcribing the nianncr and methfid how the hiws
are ihidicd in tliofe places, fince your highnefs is never like to be a (Indent there. Rut, 1
may fiy in the general, that it is [dcafint, excellently well adapted for proficiency, and every
way worthy of yotir efteem and encouragement. One thing more I will heg leave to obferve,
viz., that neither at Orleans, where both the Canon and Civil Laws are profeffed and iT;udied,
and whither fludents refort from all parts; neither at Anglers, Caen, nor any other Univer-
fity in France, Paris excepted, are there io many ftudents, who have palt tlieir minority, as
in our Inns of Court, where the natives only are admitted.



Chap. L. ; .

Of the State, Degree, and Creation of a Serjcant-at-Law.

<3i ft^WUT, my Prince, fince you are fo defirous to know, wherefore, in the Laws of
&i PC^T^ England, the degrees of Bachelor and Doi5tor are not conferred, as in the profef-
^r^^^^-^ fions of the Canon and Civil Law in our Lfniverfities ; I would give you to
underftand, that thouch in our Inns of Court there be no degrees which bear thofe titles ;
yet there is in them conferred a degree, or rather an honorary ellate, no leis celebrated and
folemn than that of Dodlor, which is called the degree of a Serjeant-at-Lavv : it is conferred
in the following manner.

The Lord Chief JulVice of the Common Pleas, by and with the advice and confent of all
the judges, is wont to pitch upon, as often as he fees fitting, {c^r^iw or eight of the difcreeter
perfons, fuch as have made the greateil; proficiency in the general ftudy of the laws, and
whom they judge beft qualified. The manner is, to deliver in their names in writing to the
Lord Migh Chancellor of Paigland ; who, in virtue of the King's writ, fliall forthwith com-
mand every one of the perfons io pitched upon, that he be before the king, at a day certain,
to take upon him the fiate and degree of a Serjeant-at-Law, under a great penalty, in every
one of the laid writs fpecified and hmited.

At which day, the parties fummoned and appearing, each of them lliall be fworn upon
the holy Gofpels, that he will be ready, at a further day and place to be appointed, tc take
upon Ifim the ftate and degree of a Serjeant-at-Law, and that he lliall, at the fmie time, give
gold, as, according to the cufiom of the realm, has in fuch cafes been uled and accultoiMC'] to
be done. How each is to behave and demean himfelf, the particulars of the ceremony, and
manner how thefe eflates and degrees are to be conferred and received, I forbear to infert ;
it will take up a larger defcription than confifis with fiich a fuccink.'f difcourle : befides, at
other times, I have talked it over to you in our common converfition. Hut I defire that






« '-^



43^ 091 the Laivs of EngIa?i(L

you fhould know^ thnt at the time and place appointed, thole who are fo chofen, hold a
fumptuous feaft, like that at a coronation, which is to continue for {cwcn days togetlur :
neither fliall any one of the new created Serjeants be at a lefs expenfe, fnitable to the folein-
nity of his creation, than one thoudmd fix hundred fcutes, and upwards, whereby the expenfes
in the whole, which the eight will be at, will exceed twelve thoufand eight hundred fcutes.— -
To make up which, one article is, every one fhall make prefents of gold rings to the value,
in the whole, of forty pounds, at the leaft, Englifh money. I very well remember, when I
took upon me the ftate and degree of a Scrjeant-at-Law, that my bill for gold rings came to
titty pounds, that is three hundred fcutes. Each Serjeant, at the time of his creation, gives
to every Prince ot the blood, to every Duke, and to eacli Archbllhop, who iliall be prefent at
the folemnity, to the Lord High Chancellor, and to the Trcafurerof England, to each a rii g
of the value ot eight fcutes ; to every Earl and Bifliop, to the Keeper of he Privy Seal, to
each Chief Juflice, to the Chief Baron of the King's Exchequer, a ring worth ux fcutes ; and
to every other Lord of Parliament, to every Abbot and to every Prelate of diftincti('n, to
every worlliipful Knight, then and there prefent, to the Mailer of the Rolls, and to every
Juftice, a ring to the value ot tour fcutes; to each Baron of the Exchequer, to the Chai iber-
lains, and to all the great men at court then in waiting on the Kino;, rings of a lefs \ ah e, in
proportion to their rank and quality: fo that there will not be the meaneft clerk, e perially
in the Court of Common Pleas, but there lie will receive a ring convenient for his de ^ree.
Befides, they ufually make prefents of rings to feveral of their friends and acquaintance. They
give alfo liveries of cloth, of the fame piece and colour, which are diftributed in ;reat
quantities, not only to their menial fervants, but to feveral others, their friends and acquain-
tance, who attended and waited on the folemnity of their creation ; wherefo - e, thoug i in the
Univerfities, they who are advanced to the degree of doftors are at no fmall cxpenfe at their
creation, in giving round caps, and other confiderable prelents : yet they do not giv|j any
gold, or prefents of like value; neither are at any expenfes in proportion with a Serjeant-at-
Law. There is not in any other kmgdom or iLate any particular degree conferred Jn the
praftifers of the law as fuch ; luilels it be in the kingdom of England. Neither does it
happen, that in any other country an advocate enriches himfelf fo much by his pra^liclr as a
Serjeant-at-Law. No one, be he never lo well read and praiftifed in the laws, can be made a
judge in the Courts of King's Bench, or the Common Pleas, which are the fupremc ordinary
courts of the kingdom, unlefs he be frrll called to be a Serjeant at Law : neither is any one,
befide a Serjeant, permitted to plead in the Court of Common Pleas, where ali real aftions
are pleaded : wherefore to this day, no one hath been advanced to the llate and -.degree of a
Serjeant-at-Law, till he hath been firfl a fludent, and a barrifter, full fixteen years: every
Serjeant wears in court a white filk coif, which is a badge thatthey are graduates in law, and
is the chief enfign of habit with which Serjeants-at-Law are diftinguiflied at their creation.



Online LibraryJohn FortescueThe works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) → online text (page 60 of 87)