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 61 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 61 of 87)
Font size
QR-code for this ebook


Neither fiiall a Judge, or a Serjeant at- Law, take ofl' the faid coif though he be in the Royal



<i i.' - -'j:;' , ) ;•.: ■ - .(



Jj....!



On the Laws of Rjiglcuid. 4^7

prefence and talking with the King's Majefty. So that you will eafily believe, moft excel-
lent Prince, that thofe laws which are ib honoured and dillinguiAied beyond the Civil Laws,
or thofe of any other kingdom whatfoever, and the profellion whereof is attended with fo
much folemnity and magnificence, are in themfelves exceeding valuable, excellent and
fublime, full of knowledge, equity and vvifdom.



Ci'AP. LI.
Of the Judges in the Courts in JVejlin:>ifler Hall.



..fe^al^



TJS^ HAT you may likewife know the ellate of the Judges, as well as of the St rjeants-
K^ at-Law, I will, in the belt manner I can, lay before you the method A their
Sq^ appointment, creation, and the nature of their office. There are ufually in the
Court of Common Pleas five Judges, fix at the moil: ; in the Court of King's Bench four,
and fometimes five : when any one of them dies, refigns, or is fuperfeded, the King, with the
advice of his council, makes choice of one of the Serjeants-at-Law, whom he conftitutes a
Judge, by his Letters Patent, in the room of the Judge fo deceafed, refigning or fuperfeded :
which done, the Lord High Chancellor of England fhall come into the court where fuch
vacancy is, bringing in his hand the faid letters patent ; when fitting on the bench, together
with the Judges of the court, he introduces the Serjeant who is fo appointed to be a Judge ;
to whom, in open court, he fiiall notify the King's pleafure concerning his fuccefiion to the
vacant office, and fhall caufe to be read in public the faid letters patent : after wh^ch, the
Mafter of the Rolls fliall read to him the oath of office ; when he is duly fworn into his faid
office, the Chancellor fliall give into his hands the King's Letters Patent, and the Lord
Chief Jufiice of the court fiiall affign him his place where he is to fit, and make him fit down
in it. But you muft know, my Prince, that the Judge, amongft other parts of his oath, is
to fwear, that he will do equal law and execution of right to all the King's fubjeifls, rich and
poor, without having regard to any perfon. Neither fiiall he delay any perfon of common
right, for the letters of the King, or of any other perfon, nor for any other caufe, though the
King, by his exprefs dired:ions or perfonal commands, fiiould endeavour to influence and
perfuade the contrary. He fiiall alfo fwear that he fiiall not take by himfelf, or by any other,
privily, nor apart, any git't or reward of gold, or of fiiver, nor of any other thing, the ivhich
might turn him to profit, unlefs it be meat or drink, and that of little value, of any m.':n tliat
fhall have any plea, or procefs, depending before him, and that he fhall take no fees, a., long
as he be Juftice, nor robe ot any perfon, great or fniall, in any cafe, but of the King hinilelf.
You are to know, moreover, that a judge fo created is not to make any folemn entcrtamment
or be at any extraordinary expenfe upon his accefiion to his office and dignity ; becaufe it is
I. .3 L.



^^■< HJ






43^ 0)1 the Laws of Ejighuul.

no degree in law, but only an office and a branch uf niagiftracy, determinable on the King's
good pleaiure. Pluwever, tVom thenceforth, he changes liis habit in fome few particulars,
but not in all : for when only a Serjeant-at-Law, he is clothed in a long robe, not unlike the
facerdotal habit, with a furred cape about his llioulders, and an hood over it, with two labels
or tippets ; iuch as the J3o6lors of Law ufe in fome univerfities, with a coif, as is above
defcribed. But after he is made a Judge, inRead of the hood he fliall be habited with a cloak,
faftened upon his right fhoulder ; he ftill retains the other ornaments of a Serjeant, with this
exception, that a Judge fliould not ufe a party-coloured habit, as the Serjeants do, and his cape
is furred with minever, whereas the Serjeant's cape is always furred with white lamb ; which
fort of habit, when you come in power, I could wifli your highnefs would make a little more
ornamental, in honour of the laws, and alfoof your Government. You are tc know further,
that the Judges ot England do not fit in the King's Courts above three hours n the day, that
is, from eight in the morning till eleven. Tiic courts are not open in the afternoon. The
fuiters of the court betake themfelves to the pervife, and other places, to advife with tlie
Serjeants-at-Law, and other their coimiel, about their affairs. The Judges, when they have
taken their refrefhments, fpend the rell of the day in the ftudy of the laws, reading of the He ly
Scriptures, and other innocent amufements, at their pleafure ; it feems rather a life of coi tei i-
plation than of much adion : their time is fpent in this manner, free from care and worldly
avocations. Nor was it ever found that any of thein has been corrupted with gifts or bribes.
And it has been oblerved, as an efpecial difj^eniation of Providence, that they have been
happy in leaving behind them iminediate defcendants in a right line. "Thus is the m;.n
blefied that feareth the Lord." And I think it is no lefs a peculiar blelfmg, that from amon^ ft
the Judges and their offspring, more Peers and great men of the realm have rifcn, than ,to n
any other profellion or eilate of men whatfoever who have rendered themfelves wealthy,
illuftrious, and noble by their own application, parts, and induflry. Although the merchijnts
are more In number by fome thoufands ; and fome of them excel in riches all the Judges put
together. This can never be afcribed to mere chance or fortune, which is nothing ; Sut
ought to be refolved, I think, into the peculiar blelling of Almighty God, who, by his
Prophet, hath declared, that "the generation of the upright fliall be blefl'ed.'' And ellevvh';re
the Prophet, fpeaking of the righteous, fays, "their children fliall be blefl'ed." Wherefore,
my Prince, be a lover of Juilice, which maketh rich and honourable, which perpetuates the
generation of thofe who love her ; in order to tliis, be a zealous lover of the law, which Is
the parent of Juftice, that it may be ffid, and verified of you, which Is writcen of the
righteous, " Their feed fliall endure for ever." •



0;/ tJie Laivs of E?2glari(L



439



Chap. LII.

Jn OhjeEfion with regard to the Delays in Imiv Vroceedings.

pRINCE. There remains but one thing, my Chancellor, to be cleared up, which
makes me hefitate, and gives me dilgull:; if you can latisfy my doubts in this
particular, I will ceafe to importune you with any more queries. It is objecfted
that the laws of England admit of great delays in the courfe of their proceedings, beyond
what the laws of any other country allow of; this is not only an obftruftion to jullice, but
often an infupportable expenie to the parties who are at law ; efpecially in fuch adtions
where the demandant is not entitled to his damages.




Chap. LIII.




The Chancellor s Anhver.

HANCELLOR. In perfonal aiflions, which do not arife within the cities and
trading towns, where they proceed according to ufages and liberties of their own,
the proceedings are in the ordinary way. Though they admit of great delays,
yet they are not exceirive. Indeed, in cities and towns, efpecially when the necjihty ot
the cafe fo requires, the procefs is fpeedy, as it is likewife in other parts of the world. But
neither yet are the proceedings hurried on too faft, as it fometimes liappens in other countries,
by means wherof one or other of the parties is a fufferer. In real actions, almoll: everywhere
the procefs goes on flow and tedious ; but in England it is more expeditious. There are in
France, in the Supreme Court of Parliament, fome caufes which have been depending
upwards of thirty years. I myfelf know a cafe of appeal profecuted in the laid Court, which
has been depending now thefe ten years, and it is likely will be io for ten years more bctrre
it can be decided. While lately at Paris, my hoft fliowcd me his procefs in writing, which
had been before the Court of Parliament for eight years, for four French fols rent, winch ot
our money makes but eight pence, and he had no profpeft of obtaining judgment in lef than
eight years more. 1 have known other cafes of the fame nature: and for what appcrs ro
me, the laws of England do not admit of fo great delays as the laws of France. But it is
really neceflary there fhould be delays in legal proceedings, provideei they be not too dilatory
and tedious. By thefe means the parties, in particular the party profecuted, is better provided
with his proper defence, and advice of counfel, which otherwife neither ot them could be.



,, - Y






44° 0?! the Laivs of R71 gland.

either to profecute or defend. "Judgment is never fo fafe when the procefs is hurried on."
I remember once at an alTizes and tfaol-deHvery at Sahfbury, that I favv a woman indicted for
the death of her hufliand within the year; flie was found guiky, and 1 urnt for the fame: in
this caie the Judge of aifize, after the whole proceedings before him were over, might liave
refpited the execution of the woman, even after the expiration of tlie year. At a fubfequent
afTizes I faw a fervant of the man who was fo killed, tried and convidted before the fame
judge for the fame murder, who made an ample public confeilion that he was the only perfon
who was guilty of the faid fa6l, and that his miftrefs, who had been executed, was entirely
innocent of it : wherefore he was drawn and hanged ; and at the time and place of his
execution he lamented the cafe of his poor miftrefs, upon account of her innocence, and her
being in no wife privy to her hultand's death. The tacft being thus, how may we fuppofe
the Judge to be affedted with a fenfe of confcience and remorfe for being fo haft ' in awarding
judgment of execution, when it was in his power to have flayed, for fome ime, further
procefs againft her : he often owned to me, with concern, that he fhould never be able to
fatisfy it to his confcience for fuch his precipitate behaviour. Deliberation often bring;
Judgment to maturity, which feldom or never happens where the proceedings are too much
hurried on. Wherefore the laws of England admit of effoins, a fort of praftice not kncwr,
in the laws of other countries. Are not the vouchings to warranty of fome ufe .'' The{;.mt
may be faid of the aids of thofe to whom the reverfion of land belongs, who bring the title
in queftion, and who have in their cuftody the evidences to take out the title of the lands.
The fame may be faid of coparceno'-s, who are to reftore in proportion, if the eftate allotted
to one of them fhould be evidled ; and yet thefe are all delays, as I have formerly informed
you. Even delays of this kind the laws of other countries do not allow, neither do the laws
of England favour fuch delays and imparlances as are frivolous and vexatious. And if at
any time delays happen in pleading which are found to be mifchievous and inconvenient,
they may be abolifhed, or reformed, in every Parliament ; nay, and all other laws ufed in
England, where they do not anfwer the intention, or labour under any defedt, may h^
correded and amended in Parliament. So that all the laws of England, you will conclude
from what has been faid, muft needs be very good, either in faft or pofTibility. They artj:
either fuch already, or are eafily capable of being made fuch. And to this the kings of
England are obliged, in virtue of a folemn oath taken at their coronation, as often as the
neceftity or equity of the cafe fhall fo require.



0;? the Laivs of E/v^land.



441



Chap. LIV.




Co)icliifio>i.

(pRINCE. I am perfeftly convinced, from the whole tenor of your difcourfe, that
the laws of England are not only good, but the beft of laws for the particular
fe-XwgyjX^ Conftitution of England. And if at any time fome of them want amendment,
it may be eafily done by application to and in the way of Parliament, fo that the kingdom
either really is, or is eafily capable of, being governed by the beft of laws; and 1 am of
opinion that the points you have advanced in this difcourfe, and the juft encomium you
have given our laws, may be of fome ufe to thofe who fliall be hereafter kings of En dand,
fince no king can govern with pleafure by fuch laws as he is not pleafed with, or does not
rightly apprehend. " The unfitnefs of a tool difgufts the mechanic, and the bluntnefs of
the lance or fpear makes a dailardly foldier." But as a foldier is animated to the battle
when his arms are good, and himfelf expert in ufing them, according to Vegctius, who fays,
that " knowledge and experience in war breed and beaei: courage ; and no one is afraid to do
what he knows he can do well." So a king is animated and encouraged to do juftice, when
the laws by which it is adminiftered are rcafonable and juft, and he has a fufficient knowledge
of and experience in them. A general knowledge is fufficient for him, leaving it to his
judges to have a more exad and a more profound fkill in them. So Vincentius Belvaccnfis,
in his book of Moral InlHtution of Princes, fays, that " every prince ought to have a general
knowledge of the Holy Scriptures," which fiy, that " vain are all they in whom there is not
the knowledge of God the Moft High;" and it is written in the Proverbs, " Let knowledge
be in the lips of the king, and his mouth ihall not err in judgment." Yet a prince is not
obliged to fo critical an underftanding of the Scriptures, fuch as may become a profeflbr in
divinity ; a general infight and acquaintance with them, as with the laws, is all that is
necelTary and required of him. Such had Charlemagne ; fuch had Lewis his fon ; fuch had
Robert, fometime king of France, and who was author of this conclufion " Sanfti fpiritus
adfit Nobis Gratia," and many others, as the faid Vincentius, in the 15th chapter of the fam^j
book, evidently Ihows. Wherefore the dodlors ot the laws do fay, that " an emperor carries
all his laws in the cabinet of his own breaft." Not that he really and acflually knows all the
laws, but as he apprehends the principles of them, their method and nature, he may prop :rly
enough be faid to underlland them all. Moreover, he has it in his power to alter or abrosjate
them ; fo that all the laws are in him potentially, as Eve was in Adam before /he was
formed. But fmce, my good Chancellor, you have now performed what you undertook ac
firft, and have fully perfuaded me to apply myfelf to the ftudy of the laws of my country, 1
will no longer detain you on this fubjeiil. But I now earnellly defire that you will proceed.



442 On the Laws of Rngland.

as you have formerly begun with it, to inrtruCt me in the principles, method, and nature of
the law of England ; which law, I am refolved, fhall be ever dear to me, preferably to all
other laws in the world, which it as far furpaffes as the morning f-ar exceeds the other ft; rs
in glory and brightnefs. Since the intention is anfwered wherewith you were moved to this
conference, time and reafon require that we put an end to it. Rendering all due thanks and
praife to Him who enabled us to begin, to carry on, and finifli it, even Alpha and Omega,
the beginning and the end, the firft and the laft ; and " let everything that hath breath praife
the Lord." Amen.



DE DOMINIO REGALI ET POLITICO.

A TREATISE ON ABSOLUTE AND LIMITED MONAliCHY;

AND IN PARTICULAR ON THE iMONARCHY

OF ENGLAND.

BY SIR JOHN F O R T E S C U E, K n i c h t, ;

LOill) CUIIF JUSriCK OK "rNOLANU A.Nb LOULj (;HANC1.LI.(i1< ' :

TO KING iii;\i:v nil. sivui.




^^jZ3 HE text here printed is that which was pubHfhed in the year 1714, by
""■" Lord Fortefcue, of Credan/ taken from a copy written by the hand of
Sir Adrian Fortefcue, a great-nephew of the author, in the year ifji.
■^ Lord Fortefcue collated Sir Adrian's copy, as the preface to the vclume
J'i$:^^=^ informs us, with three others, namely, one among the MSS. of Arch-
bifliop Laud, in the Bodleian Library at Oxford, another in the fame library among Sir
Kenelm Digby's iVlSS, and a third in the Cotton CoUedlion in the Britidi Mufeum. Sir
Adrian's text has been alfo collated for the prefent edition, by the Rev. T. Orlebar Payne,
with a copy in the Lambeth Library ; and I have myfelt compared it with a copy in the
Harleian Colleftion in the Britifh Mufeum, tranfcribed by the celebrated chronicler John
Stow " with his own hand."

The variations among thefe fix MSS. are generally trifling; the only ferious differences
being, firlt, that the Lambeth MS. goes no further than to the end of the eighteenth chapter ;
fecondly, that the Laud MS. breaks off abruptly in the middle of a fentence in the nineteenth
chapter ; and laftly, that Stow's copy reads, near the end of the fame chapter, " King Henry
the Sixth," inflead of " King Edward the Fourth," as all the other copies have it, including
the Cotton copy — although this laft is headed, in a different hand from that of its text, with
the words, " This difcours was wrighten to King Henry the Sixt by S'' John Fortefcue Lord
Chancelor."

The antiquary Thomas Hearne mentions in his MS. Diary" that it was he who, about
the year 1698 or 1699, tranfcribed Sir Adrian Fortefcue's MS. of the " De Dominio Politico
et Regali," for Lord Fortefcue, who, he complains, "publifhed the piece from my copy without
any acknowledgment, or fo much as fending me a fingle copy or any other gratuity." '

Hearne adds that he found the copy among Sir Kenelm Digby's MSS. and not amung
Mr. Selden's, as ftated by Lord Fortefcue.'' I have ieen in Sir Adrian's MS. volume in



' A fecond edition appeared in 17 19. Both the editions have copious notes, and a learned dilTi-rtation on the
Saxon language.

•^ Hcarne's MS. Diary, vol. li. ff. 13, 153 (Bodleian), A.D. 1714. Ibid. vol. Ivi. ti: 5, S, 21 . Ibid. vol. eii. )'. I b6.
^ Preface to his edition, p. xxxvi.

I. .3 L*.



'• w:& '■;-'



iM-h/



446

the Bodleian the words "vindicati tibi Kenehn Digby" written by himfelf on the firft page,
Co that if Lord Fortefcue is currcd in faying that one of the copies with which he compared
Sir Adrian's was in the Digl>y Collediuiij Sir Kenehn mutl have poflijired two independent
iVlSS. of the Chancellors work.

Notwithftanding the occurrence in Stow's copy of the name of King Henry the Sixth,
there cannot be any doulit as to the rei^n in which the work was compofed ; becaule it
affords internal evidence that it was written after the acceilion of Edward the Fourth, as we
fhall fee, by referring to a few pafiages. In one of them, in the ninth chapter, the Chancellor
writes : —

" And in our days we have icen a fubjeifl of the French King in fuch might that he
hath given battle to the fame King, and put hint to flight, and afterwards bcficged him in
Paris his greateft city, and fo kept him there unto the time his fiid King lad made luch
end with him, his adherents, and fautors, as he defired."

Now this " Great Subjed " ' c(3uld be no other than Charles Count de Charolois, eldelf fon
of the Duke of Burgundy, who formed a league with other lords againft Louis the Eleventh,
called the league "du bien public," took arms againft him, and defeated the King at the
battle of Montlhery in the year 1465.

And in the fame ninth chapter, the King of Scotland, James the Second, v/ho j ut to
death the B'.arl of Douglas, and died in I460, is called "the King of Scots tha: 1 :ft
died."

The expredion alfo in the lail chapter that "The harms that fallen in getting of I is
realm bin now by him turned Into our aller good and profit," evidently refers to the ch \\
war which had placed Edward on the throne. While apallagein the tenth chapter referriig
to England as " this land " fhows that Fortefcue wrote it in England, and therefore not
earlier than the year 1471. ,

I think there can be no doubt but that this was the lateft of his writings, nor that it Was
written when he had reached a very old age— although certainly his ftyle had not loft any ot
the vigour which characterizes his earlier work, De Laudibus, and is much lels pedantic and
more praiftical than his rtrft traft, " De Natura Legis Natura;." \

A proof of the value fet upon the work in early times," may be found in the exiftence of
a very old Latin epitome of it, io long as to be almoft a paraphrafe, which Hearne has pre-
ferved, endorfed with the words " Sir John Fortefcue prepared for the prefs, Thi'rfday, Jan.
19, 1726." It is entitled, "Epitome fingularis cujufdam Folitici difcurfus, 1 .dward IV.
temporibus fcriptus, ab aliquo magno viro (D. Joanne h'ortefcuto ut videtur) at regem de
maximis rebus qu:c ad pra:fentem fuum ftatum fpeftabant optime inftruendum."

Sir Adrian has written at the end of his copy thefe words : " Explicet Liber compilatus



' Biog. Biit. vol. iii. p. 1905. - Kdwlinloa MSS. Milcl. 22b, Boell.



447

et faftus per Johannem Fortefcu inilitem quondam Capitalis Julliciarius Anglia;, et hie
fcriptus maim propria mei Adriani 1^'ortefcu, militi 1532."

The two fhort pieces at the end, namely, " The Example what good Counfel helpeth," and
" The twenty-two Righteoufnefles that become a King," are taken from Stow's MS. already
mentioned.' They are there joined with the treatife under the cotnmon title of " A treatife
compiled by Sir John Fortelcue, Knight, Chief Jultice of England, upon the Cjouernancc of
the Kingdom of England," of which they form the firft and lall chapters ; but as they are
not fo placed in any other MS. I have preferred to keep them feparate.



Had. MS. Brit. Mu,. 542, f. 125.






-■. i.T.ljqifico



ON THE MONARCHY OF ENGLAND.



Chap. I.



The Difference l>etzve>ie Domi)iium Regale, and Domini um
Politicitm et Regale.

(|/;t?-rT] fi^T.- 'V^HER be two kvnds ot Kyngdomys, ot the which that one ys a I.orJ-



'1^*®/? ^'Pj calHd ill I.atyne, Dominium Re'^^ale, and that other is callul,
^W^ Dominium Politicum et Regale. And they dyverfen, in that the firlt
%jMi^ iii^y rule his People by fuch Lawys as he makvth hymielf ; and thertor
J^^l^i^^ 'it: may fet upon them Talys,' and other Impofitions, fuch as he vvyl hym-
felt, without their AlTent. The fecund may not rule hys People, by other Lawys than fuch
as they afienten unto ; and therfor he may il't upon them non Impofitions without their own
AfTent. This Dyverfite is well taught by Saynt Thomas, in hys Boke which he wrote, Ad
Regem Cipri de Reginiine Principum. Hut yet, it is moi-e opynly treatid, in a Boke callid,
Compendium Moralis Philojophix, and fumwhat by Gyls, in "his Boke, De Reginiu-.e Prin-
cipiim. The Children of Yfraell, as faith Saynt Thomas, after that God had chofyn them,
in Populum peculiarem, et Regnum Sacerdotale, were rulid by hym under Jugs, Regaliter
et Pditice; unto the tyme that they dcfyryti to have a King, as than had al the Gentylys,
which we cal Panyms, that had a Kyng, a Man, that reynyd on them Regaliter tantiim.
Witli which defyer God was gretly offendyd, as wel for their bolye, as for rheir Unkynd-
nefs ; that fithen they had a Kyng, which was God, that reynid upon them Politykly and
Royally, and yet would chaunge hym for a Kyng, a very Man, that would reynge upon
them only Royally. And therefore God manafyd them, and made them to be tearyd, with
Thonders and other ferefull thyngs, from the Hevyn. And whan they would not leve their
foly, the defyer, he chargyd the Prophete Samuell to declare unto them, the Lawe of f ich a
Kyng as they aikyd ; which amongs other thyngs faid, that he would take from them their
Londs and Goods, and gyfe them to hys Servaunts; and alfo fet their Children in his Works
and Labours, and do to them fuch other many harmfull thyngs, as in the eighth Chapiter ut



■} ( '



450'' O/i the Mofiarchy of 'E)igla?ul.

the firft Boke of Kyngs, it may appcre. Whereas before that tyme, while they were rulyd
only by God, Royally and Politykly, under Jugs, hyt was not lefull to any Man, for to take
from them any of their Goods, or to grieve their Children that had not offendyd. Whereby
it may ajipere, that in thoofe Days, Regimen Polhuiim et Regale, was dyllyngwyd, a Regi-
juine tantmi Regali. And that it was better to the People t(.) be ruld, Pollitykly and Royally,
than to be ruliii, only Royally. Saynt Thomas alio in jiis fiid Boke, prayfith moche,
Dominium Politicum et Regale, hycaufe the Prynce that reynith by fuch Lordlliip, may not
frely fill into Tyranny, as may the Prynce, that Reynith, Regaliler tantiim. And yet they
both ar egall, in Elkte and Power, as it may liglitly be fhewyd and provyd, by Infallible
Reafons.



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 61 of 87)