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SIR JORJi FORTESOTJE'S
COMMENDATION

OF THE /

LAWS OF ENGLAND

THE TRANSLATION INTO ENGLISH

"DE LAUDIBUS LEGUM ANGLIJE"

FRANCIS GRIGOR

LONDON

SWEET AND MAXWELL, LIMITED
3 CHANCERY LANE

Toronto : Sydney, N.S.W. :

The Carswell Co., Ltd. Law Book Co. of AustraIjAsia, Ltd.

1917

PREVIOUS EDITIONS.

First issued in Latin, circa 1537.

With English translation by Eobert Mulcaster, 1567, 1573 (two
editions), 1575, 1578, 1598, 1599, 1609. With preface and
notes by John Selden and Hengham's Summae, 1616, 1660,
1672 (said to be a faulty version).

With English translation by Francis Grigor, Selden's notes,
testimonies of Bale, Pits, and Du Fresne, and Hengham's
Summae, 1737, 1742, 1775.

The translation of 1775 with Latin text and notes by A. Amos,
1825 ; with a life of the author by Lord Clermont : Cincinnati
1874.

LIBRARY
732634

UNIVERSITY OF TORONTO

i
'r 730 Si

CONTENTS

PAQB

Introduction 1

Chap. I. The Chancellor exhorts the Prince to the Study
of the Laws 2

Chap. II. The Princess Answer 4

Chap. III. The Chancellor enforceth his Exhortation ... 5

Chap. IV. He proves that a Prince by the Laws may be

made happy 7

Chap. V. Ignorance of the Laws causes a Contempt
thereof 9

Chap. VI. A Bepetition of his Exhortation 12

Chap. VII. The Prince yields his Assent^ but proposes
his Doubts 13

Chap. VIII. Such a Knowledge of the Law as is necessary
for a Prince is soon to be acquired 14

Chap. IX. A King, whose Government is political , cannot
change the Laws .... ... ... ... ... ... 17

Chap. X. The Prince proposes a Question 19

Chap. XI. The Chancellor for Answer refers the Prince
to his Treatise concerning the Laws of Nature, where
the aforesaid Question is handled at large 19

Chap. XII. How Kingdoms ruled by regal Government
first began 19

Chap. XIII. How those ruled by political Government
first began 21

Chap. XIV. The Prince abridges what the Chancellor

had been discoursing of in the two foregoing Chapters 23

|Chap. XV.\ All Laws are the Law of Nature, Customs or

Statutes 25

iv CONTENTS.

Phap. XVI.; The Law of Nature in all Countries is the

same

Chap. XVII. The Customs of England are of great
Antiquity, received and approved of hy five several
Nations successively ... ... ... ... ... 26

Chap. XVIII. How Statutes are made in England ... 27

Chap. XIX. The Difference between the Civil Laws and

the Laws of England 29

Chap. XX. The first Case wherein the Civil Laws and

the Laws of England differ 29

Chap. XXI. The Inconveniences of that Law which tries

Causes hy Witnesses only ... ... ... ... ... 30

Chap. XXII. Concerning Torture and putting to the Back 32

Chap. XXIII. The Civil Law defective in doing Justice 36

Chap. XXIV. The Division of Counties. Sheriffs and

their Appointment 36

Chap. XXV. Jurors. How chosen and sworn 38

Chap. XXVI. How Jurors are informed hy Evidences.

The way of Proceeding in Civil Causes 41

Chap. XXVII. The way of Proceeding in Capital Cases 44

Chap. XXVIII. The Prince owns his Conviction, that
the Laws of England are much more commodious for
the Suhject as to the Proceedings in the ahove instances,
than the Civil Law ... ... ... ... ... ... 45

Chap. XXIX. The JReasons why Inquests are not made

up of Jurors of Twelve Men in other Countries ... 47

Chap. XXX. The Prince commends the Laws of England

with respect to their Proceeding hy Juries 50

Chap. XXXI. Whether the Proceeding hy Jury he

repugnant to the Law of GOD, or not 50

Chap. XXXII. The Chancellor's Answer 61

Chap. XXXIII. The Prince asks the Beason why some of

our Kings have taken disgust at the Laws of England 54

Chap. XXXIV. The Chancellor's Answer 55

CONTENTS. V

PAQI

Chap. XXXV. The Inconveniencies which happen in

France hy means of the Absolute Begal Government 56

Chap. XXXVI. The Comparative Advantages in
England, where the Government is of a mixed Nature,
made up of the Regal and Political ... ... ... 60

Chap. XXXVII. Concerning the Begal Government, and

the Political Government ... ... ... ... ... 62

Chap. XXXVIII. The Prince desires the Chancellor to
proceed to other Cases wherein the Laws of England
and the Civil Laws disagree ... ... ... ... 64

Chap. XXXIX. Concerning the Legitimation of

Children horn before Matrimony 64

Chap. XL. The Reasons why Base-born Children are
not in England by the subsequent Marriage
legitimated ... ... ... ... ... ... ... 67

Chap. XLI. The Prince's Approbation of the Reasons

given in the foregoing Chapter 70

Chap. XLII. Concerning the Rule of the Civil Law:

Partus semper sequitur Ventrem 70

Chap. XLIII. The Prince yields his Assent to the

Chancellor, and disapproves of the said Bule ... 74

Chap. XLIV. Concerning the Tuition of Orphans ... 75 1

Chap. XLV. Concerning the Education of the young

Nobility during their Minority ... ... ... 76

Chap. XL VI. Concerning open Theft, and private Theft 77 ^

Chap. XL VII. The Prince passes on to an Enquiry why
the Laws of England are not taught in our
Universities, and why there are not Degrees con-
ferred on the Common Tjawyers, as is usual in the
other Professions 78

Chap. XL VIII. The Chancellor's Answer 79

Chap. XLIX. The Disposition of the General Study of
the Laws of England. Of the Inns of Chancery, and
the Inns of Court, and that they exceed in Number
any of the Foreign Universities ... ... ... ... 81

Chap. L. Of the State, Degree and Creation of a
Serjeant at Law ... 83

VI CONTENTS.

PAOi

Chap. LI. Of the Judges of the Courts in Westminster-
Hall, the Manner of their Creation, Rahit and
Employment 87

Chap. LII. The Prince starts an Objection with Bespect

to the Delays in Law-Proceedings 90

Chap. LIII. The Chancellor's Answer 90

Chap. LIV. Conclusion 93

SIR JOHN tORTESCUE,

CHIEF JUSTICE OF THE KING'S BENCH, 1442.

"The county of Devon is justly proud of
Sir John Fortescue as one of its worthies : in
Westminster Hall his name is still regarded
with reverence ; and his principal work * De
Laudibus Legum Angltce,' after more than three
centuries, is referred to as the first treatise that
entered minutely into the history of our legal
institutions and described the professional
education and habits of the period. The
works of his three predecessors, Glanville,
Bracton, and Hengham, were no doubt more
useful to the legal student and forensic prac-
titioner ; but that of Fortescue offered greater
attractions to general readers by its popular
form and its historical details : and the con-
sequence is that while the former have become
almost obsolete, the latter is still read with
interest by the curious and philosophical
enquirer.

"The family traces its origin, without the
loss of a single link, to the knight who bore
the shield before William the Norman on his
invasion of England; the assumed name com-
memorating the fact. His son Sir Adam, who

viu

was with him in the battle, remaining in this
country, received as the reward of their joint
services, among other lands, the manor of
Wimondeston or Winstone, in the parish of
Modberry, Devon. King John confirmed the
grant, and it remained in possession of the
family till the reign of Queen Elizabeth.

"Two accounts are given of the judge's
actual parentage; but discarding that which
makes him the son of Sir Henry Fortescue, the
chief justice of the King's Bench in Ireland
from June 1426 to February 1429, who was
really his brother, the most probable seems to
be that his father was Sir John Fortescue,
knighted by Henry V. for his prowess in the
French Wars, and made governor of Meaux,
which he had helped to reduce. This knight
was a second son of William Fortescue of
Winstone, and was himself seated at Shepham.
He married Joan, the daughter and heir of
Henry Norreis of Norreis, in the parish of
North- Huish, in Devonshire, by whom he had
several children; the two elder being the
above-mentioned Sir Henry, the Irish chief
justice, and Sir John, who obtained the same
rank in England.

" John Fortescue is supposed to have been
born at Norreis, the estate of his mother. The
date of his birth is uncertain; but looking at
that of his call to the degree of the coif, it must
have been about the close of the fourteenth

century. He received his education, according
to Bishop Tanner, at Exeter College, Oxford ;
and it is certain that he pursued his legal
studies at Lincoln's Inn, where we find him one
of the governors of the house from 1424 to 1429.
In Michaelmas Term of the latter year he was
summoned to take upon him the degree of a
serjeant-at-law ; and it is curious that his
name does not appear in the Year Books till
the same date ; a fact which is observable with
regard to several other persons of eminence at
this period, and probably shows that their
previous practice was confined either to the
provinces, or to the courts of King's Bench and
Chancery, of which the reports are com-
paratively few in number. From that time
his arguments frequently occur: in 18 &
19 Henry VI. we find him acting as a judge of
assize on the Norfolk circuit ; and at Easter in
the latter year, 1441, he was named one of the
king's Serjeants.

" So conspicuous were his merits that, on
the death of Sir John Hody in the next year,
he was, without taking any intermediate step,
raised to the office of chief justice of the King's
Bench on January 25, 1442 (20 Henry VI.). In
that court we have proof from the Year Books
that he presided till Easter Term 1460
(38 Henry VI.) ; and no new chief justice is re-
corded until Edward IV. a few months after-
wards seized the throne.

"His salary on his appointment was i8o
marks (;£'i2o) a year, besides £^ i6s. iid. for a
robe at Christmas, and £'>^ 6s. 6d. for another at
Midsummer. In addition to this, he received
in the following February a grant for life of
one dolium of wine annually ; to which a
second was added in the next year. These
two dolia (tunnes) of wine are expressly re-
served to him by the act of resumption in
34 Henry VI. In March 1447, £\o a year was
granted to him beyond his former allowances.

"From a letter in the Paston Correspon-
dence dated January 1443, we find that the
assizes were sometimes held in the winter, and
that in the year following his elevation those
at East Grinstead in Sussex were obliged to be
discontinued *pour noun venu dez Justicez,'
because he *had a sciatica that letted him a
great while to ride, and he dare not yet come
on none horse's back ' ; and his colleague. Sir
William Paston, was also too ill to go. The
letter adds that * as for the remanent of the
assizes he shall purvey to be there by water ' ;
showing that the use of any land carriage was
not then thought of.

" It has been a question how far Sir John
Fortescue was justified in calling himself, as
he does in the title to his work ^ De LaudtbuSy'
Cancellartus AngUce, a title which he reiterated
in his retractation of what he had written
against the House of York, by making the

interlocutor in the dialogue say to him, * con-
sidering that ye were the chief chancellor to
the said late king.'

*' Let us then follow him in his career, and
see at what time he could have received the
office after Easter 38 Henry VI. (1460), up to
which time we have seen that he acted in the
King's Bench.

" The fatal battle of Northampton was
fought on July 10, 1460, and three days before
it the Chancellor Waynflete resigned the Seals
in the King's tent on the field. Fortescue was
clearly not appointed then ; for the Seals were
in the custody of Archbishop Bourchier on the
25th of that month, when the king delivered
them to George Neville, Bishop of Exeter, the
new chancellor. A parliament was held in the
following October, which was opened by that
prelate as Chancellor of England. Fortescue
does not appear in that parliament in his usual
place as a trier of petitions ; but neither does
Prisot, the chief justice of the other bench.
Of the four judges who were among the triers
of petitions, only one, John Markham, was of
the Court of King's Bench ; of whom there is
no evidence whatever to show that he became
chief justice till the next reign.

"In that parliament all the judges were
called upon, and refused, to give their opinion
on the claim of the Duke of York ; but as none
of them are named, we are unable to say

Xll

whether Fortescue was among them. Henry
continued under the control of his enemies till
February 17, 1461, the second battle of St.
Albans ; and his reign practically expired on
March 4, when Edward assumed the throne.
At the battle of Towton, on Palm Sunday,
March 29, Fortescue was present, and, when
the field was lost, fled with King Henry. That
unfortunate monarch went first into Scotland,
then into Wales, and afterwards lay concealed
in the north of England until he was betrayed
and taken to the Tower of London in June,
1405. There he remained in durance till his
temporary restoration in October, 1470. During
this period the Great Seal remained in the
hands of Bishop Neville till June, 1467 ; and
then was transferred to those of Bishop
Stillington ; so that, without its possession, any
appointment of Sir John Fortescue would have
been merely illusory, and in fact could only
have been legitimately recognised if made be-
tween February 17 and March 4, 1461. During
the six months of Henry's renewed reign, from
October 1470 to April 147 1, it is certain that
Fortescue did not hold the post ; as Neville,
then Archbishop of York, is expressly men-
tioned as chancellor. We can therefore only
conclude his title to be a nominal one, given
during the exile of Henry ; and must concur in
the dictum of Chief Justice Finch, rather oddly
introduced into his argument upon shipmoney

Xlll

in the reign of Charles I., that Fortescue was
never actual Chancellor of England.

" In the first parliament of Edward IV.
Fortescue was attainted of high treason as one
of those engaged in the battle of Towton, and
all his possessions were forfeited to the king,
who granted part of them to Lord Wenlock.
The inquisition of his property was not com-
pleted till the seventh year, under which it is
inserted ; occasioning some writers erroneously
to date his attainder then. He clearly was at
some time in Scotland, going there probably
with King Henry ; for in his petition to King
Edward some years afterwards he refers to the
"^orks he had written against his title to the
;rown ' in Scotland and elleswhere.' We find
dm next, about 1463, with the queen and
>rince, but without the king, ' at Seynte iMighel
in Barroys ' (in Lorraine), from which place he
iddressed a letter to the Earl of Ormond, then
in Portugal, in which he describes himself not
IS chancellor, but simply as one of the knights
I'who were there with the queen. They must all
Lave been much straitened for the means of
living ; for he says, ' we buth all in grete
)overte, but yet the queue susteyneth us in mete
md drinke, so as we buth not in extreme
lecessite.' It is dated on December 13, and
Lccompanies a letter from Prince Edward to
:he same nobleman, who was then in Portugal,
pressing him to urge the king of that country

XIV

' for the forderance and setyng forth of my lord
(King Henry) in the recuvering of his ryght, and
subduing of his rebellis.' He remained in
Lorraine for some time ; and it was probably
while there that he composed his learned work
* De Laudthus Legum Anglice ' for the instruc-
tion of the young prince.

" From this time we have no positive
account of his movements till his return with
the queen to England in 147 1 ; nor is his name
mentioned in any way during the six months
of Henry's renewed reign. His age did not
prevent him, as we learn from Warksworth,
from being present at the battle of Tewkesbury
on May 4, 1471, where he was taken prisoner ;
but it no doubt exempted him from suffering
under the subsequent execution of the Lancas-
trians. His royal master and his princely pupil
being now both dead, no hope could remain for
the party to which he had been devoted.
Further opposition, therefore, to the ruling
powers would have been fruitless ; and the
desire of peace for the short remainder of his
life, and of obtaining a restoration of his
property for his family, was probably all that
could now influence him. These feelings no
doubt operated to produce the retractation,
spoken of by Selden, of all he had previously
written against Edward's title ; and this, it is
apparent on the record, was one of the causes of
that monarch's reconciliation with him, and of

the reversal of his attainder in October 1473
(13 Edward IV.), between two and three years
after the conclusion of the contest.

" How long he lived afterwards is very un-
certain. The only further recorded notice of
him is at the end of the fifteenth year of the
reign (February 1476), when he delivered into
the Exchequer an assize that had been taken
before him while chief justice. He is stated to
have been ninety years of age when he died ;
but the knowledge of this fact seems to be in-
consistent with the ignorance of the date of its
occurrence. Over his remains at Ebrington, in
Gloucestershire, is a tomb on which he is repre-
sented at full length in his robes as chief
justice. His seat there, which he purchased in
35 Henry VL, still belongs to the family." —
Foss — The Judges of England, vol. iv. pp.
308-14.

" But for the Wars of the Roses, and but
for the fact that Fortescue, unlike his brethren,
took a side in those wars, we should probably
only know him, as we know most other lawyers
of this period, as giving certain decisions and
arguing certain cases. His exile made him a
diplomat and a statesman. He was at leisure
to \ect from the outside upon the condition
o .country and upon its system of law, in

[y and administration of which he spent

XVI

the greater part of his life. It is for this reason
that his works possess so unique a value. They
are the writing not only of a contemporary and
a party man, but also of a lawyer who had
been at the centre of affairs in many various
spheres of activity. He shares with Bentham
the fame of bein^g at once a lawyer and a
practical political^ philosopher. Both men
clearly saw some of the evils from which their
own age suffered. Both suggested the remedies
which were successfully adopted by the age
which followed. v

The ' De Laudibus Legum Anglice ' was
written at St. Mighel for Prince Edward. It is
in the form of a dialogue betv/een Fortescue
and the prince. Fortescue's design is to instruct
the prince in the leading characteristics of the
laws of the country over which he is one day to
rule. He explains to the prince the difference
between an absolute and a limited monarchy,
illustrating his theme by taking France and
England as the types of these two forms of rule.
He then goes on to compare the English
common law with the civil law, greatly to the
advantage of the former. Indeed, it is to these
characteristic differences that he ascribe,^ all
the superiority of Englishmen — a form of poli-
tical speculation in which he has not wanted
for imitators from that day to this. As part of
his description of English law he gives us our
earliest account of the Inns of Court, legal

XVll

education, and the ranks of the legal profession.
In his description of the law he purposely ab-
stains from technical details. He explains
certain elementary doctrines of the common
law, and gives an account of some of its most
salient features. It is just because it was
written to instruct one who was not a lawyer,
and never intended to become a lawyer, that it
contains information which, being well known
to all contemporary lawyers, we get from no
other legal writer. It is probably the first legal
book which was avowedly written to instruct a
layman in the elements of law. The con-
sequent lucidity of its style, together with the
unique character of the information it contains,
explain why it has always been among lawyers
the most popular of Fortescue's works." —
HoLDSWORTH, Histovy of English Law.

INTRODUCTION.

During that impious and unnatural Civil War
between the Houses of York and Lancaster, which not
long since raged in England, and by means whereof
their Sovereign King Henry VL with his Consort
Queen Margaret, who was daughter of the King
of Jerusalem and Sicily, and their only son Edward
Prince of Wales, were obliged to quit the kingdom :
and at last, the King, being taken prisoner by his
subjects, suffered a very long and terrible imprisonment.
But the Queen, with her son, being thus banished,
made her abode in the dutchy of Berry, which at that
time belonged to her father, the King of Jerusalem.

The Prince, as he grew up to man's estate, applied
himself wholly to martial exercises ; and being often
mounted on fiery and wild horses, which he did not
fear to urge on with the spur, made it his diversion,
sometimes with his lance, sometimes with his sword,
or other weapons, to attack and assault the young
gentlemen his attendants, according to the rules of
military discipline : which a certain grave old knight,
his father's Chancellor, at that time in banishment with
him, perceiving, thus accosts the Prince :

DE LAUDIBUS

LEGUM ANGLIC.

CHAP. I.

The Chancellor exhorts the Prince to the
Study of the Laws.

I AM right glad, most serene Prince, at that worthy
genius of your's, whilst I observe with how great an
inclination you employ yourself in such manly and
martial exercises ; which become you, not so much as
you are a soldier, as, that one time or other, you
will be our king. For it is the duty of a king to fight
the battles of his people, and to judge them in
righteousness, (i Kings viii. 20.) Wherefore, as you
divert and employ yourself so much in feats of arms,
so I could wish to see you zealously affected towards
the study of the laws ; because, as wars are decided
by the sword, so the determination of justice is effected
by the laws : which the emperor Justinian wisely
considering, in the very beginning of the Introduction
to his Institutes, says, " It is not only incumbent upon
the Imperial majesty to be graced with arms, but also
to be fenced about with the laws : that he may know
how to govern aright, both in times of peace and
of war."

As an inducement to set yourself in good earnest
about the study of the laws, the greatest lawgiver of
his time, Moses, formerly chief of the congregation of
the people of Israel, invites you more effectually than
Justinian, when, by divine inspiration, he commands

the kings of Israel, to read the laws all the days of
their life, saying thus : " It shall be when he sitteth
upon the throne of his kingdom, that he shall write
him a copy of this law in a book, out of that which is
before the priests, the Levites ; and it shall be with
him, and he shall read therein all the days of his life,
that he may learn to fear the Lord his God, to keep
all the words of this law, and these statutes, to do
them," (Deut. xvii. i8, ig.) Helynandus, upon the
place, says, " A prince therefore ought not, neither is
he permitted, under the pretence of his duty as a
soldier, to be ignorant of the laws. — A little after he
is commanded to take a copy of the law from the
priests and Levites, that is, from catholic and learned
men." Thus he. Deuteronomy is the book of laws
whereby the kings of Israel were obliged to govern
the people committed to their charge : Moses com-
mands their kings to read this book, that they may
learn to fear the Lord their God, and keep his statutes
which are written in the law. Behold, to fear God is
the effect of the law, which a man cannot attain to,
unless he first know the will of God as it is written in
the law. For, the principal, the chief point of
obedience, is to know the will of that Master whom
we are to serve and obey : and yet Moses here in this
edict of his, mentions the effect of the Law first, viz.
The fear of God, and then exhorts to the keeping the
commands of God, which are the cause of that fear ;
for the effect is always prior to the cause in the
intention of the person who exhorts.

But what kind of fear is that which the laws
propose to the keepers thereof? Sure, it cannot be
that fear, of which it is written (i John iv. i8.) that
perfect love casteth out fear. Yet that fear, though it
seems a servile fear, often stirs up kings to read the
laws. But this is not the effect of the law : the fear
which Moses here intends, and which the laws produce,

is that described by the prophet, "The fear of the
Lord is clean, enduring for ever," (Psalm xix. 9.) This
fear is filial and quite excludes that servile dread and
horror, which that hath which is cast out by love.
This proceeds from the laws, which teach to do the
will of God, in the doing whereof we shall escape all
punishment. "The glory of the Lord (say the
Scriptures) is upon them that fear him, whom also he
glorifieth : " in a word, this fear is the same which
Job speaks of, when, after he had turned his thoughts
many ways in search after wisdom, he gives us this,
as the result of his enquiry ; " Behold the fear of the
Lord, that is wisdom, and to depart from evil is
understanding," (Job xxviii. 28.) to depart from evil,
the laws teach and caution ; whereby they also produce
that fear of God, which is the true wisdom.

CHAP. IL

The Prince's Answer.

When the Prince heard this, looking very in-
tently at the old knight, he replied, I know, good
Chancellor, that the book of Deuteronomy is a part of
the Holy Scriptures, that the laws and ceremonies
contained therein are of divine institution and pro-
mulgated by Moses ; upon which account the reading
of them is matter for a pious and devout contempla-
tion : but the Law, to the study and understanding
whereof you now invite me, is merely human, derived
from human authority, and respects this world :
wherefore, though Moses obliged the kings of Israel
to the reading of the Deuteronomical law, it does not
thence reasonably follow, that by the same rule he
invites all other kings to do the like as to the laws
of their respective dominions : the reason of the study
of the one, and of the other, is not strictly the same.

CHAP. III.

The Chancellor enforceth his Exhortation.

Chancellor, I observe, most excellent Prince,
from your reply, with what care and attention you
weigh the nature of my advice, which encourages me
very much, not only to explain more clearly, but to
enter somewhat deeper into the matters I have begun
and proposed to you ; be pleased to know then, that
not only the Deuteronomical, but also all human laws
are sacred ; the definition of a law being thus, " It is
an holy sanction, commanding whatever is honest,
and forbidding the contrary." And that must needs
be holy, which is so in its definition. The law or right
is also defined " to be that, which is the art of what is
good and equal ; " or, the law considered as a science
or profession, may aptly be defined in the same
manner.

Whence we, who are the ministerial officers, who
sit and preside in the Courts of Justice, are therefore
not improperly called, Sacerdotes, (Priests). The
import of the latin word (Sacerdos) being one who
gives or teaches holy things ; and such are all laws
which are solemnly enacted and promulgated, though
made by men : seeing the Apostle says, (Rom. xiii. i.)
that all power is from God.

Laws which are made by men, (who for this very
end and purpose receive their power from God) may
also be affirmed to be made by God, as saith the author
of a book, going under the name of Auctor Causarum,
whatsoever the second cause doth, that doth the first
cause, but in a more excellent manner. Wherefore
king Jehoshaphat says to his judges, (2 Chron. xix. 6.)
" Take heed what you do, for ye judge not for man, but
for the Lord, who is with you in the judgment : "
whereby you are instructed, that to study the laws,

though of human institution, is in effect to study the
laws of God ; which therefore cannot but afford a
pious and devout entertainment.

But neither was it out of devotion only (as you
rightly judge) that Moses commanded the kings of
Israel to read the book of Deuteronomy rather than
any other part of the Pentateuch, since all of them
abound in matter for a devout and holy contemplation ;
to meditate on which is the part of every good man :
the true reason of this command is, that in the book
of Deuteronomy, the laws, whereby the kings of Israel
were obliged to govern their subjects, are more
expressly, more explicitly particularized than in any
other of the books of the Old Testament, as the
circumstances of the command do plainly evince.

Wherefore, my prince, the same cause does no less
exhort you than the kings of Israel, that you ought to
be a studious enquirer into those laws, whereby you
may be hereafter qualified to govern your subjects.
For, what is said to the kings of Israel must be
figuratively intended to be spoken to every king who
bears rule over a people, who know and worship the
true God. Upon the whole, could anything be more
fitly or more usefully offered to your consideration,
than this command enjoined to the kings of Israel, to
read and study their law ? Since, not only the
example, but the typical authority thereof instructs
and obliges you to behave conformably to the laws of
that kingdom, to the crown whereof, with the per-
mission of Divine Providence, you are in due course
of time apparently to inherit.

CHAP. IV.

He proves that a Prince by the Laws may be
made happy.

The Laws, my dear Prince, do not only, with the
Prophet, saying, " Come, ye children, hearken unto
me, I will teach you the fear of the Lord,"
(Ps. xxxiv. II.) call on you to fear God, whereby you
may become wise ; but the same laws also invite you
to be exercised in them, that you may attain to felicity
and happiness (as far as they are attainable in this life).
For all the philosophers, who have argued so differently
about happiness, have agreed in this, that happiness
is the end of all human desires, for which reason they
call it the summum bonum, the greatest or chief good :
the Peripatetics placed it in virtue ; the Stoics in what
is honest ; and, the Epicureans in pleasure : but,
inasmuch as the Stoics defined that to be honest which
is done well and laudably, according to the rules of
virtue ; and the Epicureans asserted that nothing is or
can be pleasant without virtue ; all those sects, accord-
ing to Leonardus Aretinus, in his Introduction to
Moral Philosophy, have concurred in this, that it is
virtue alone which procures and effects happiness,
wherefore Aristotle, (Lib. 7. Polit.) defining happiness,
says, " That it is the perfect exercise of all the virtues.
This being granted, I desire you to consider what will
follow from these premisses.

Human laws are no other than rules whereby the
perfect notion of justice can be determined : but that
justice, which those laws discover, is not of the com-
mutative, or distributive kind, or any one particular
I distinct virtue, but it is virtue absolute and perfect,
and distinguished by the name of Legal Justice, which
the same L. Aretinus affirms to be therefore perfect,
because it utterly rejects and discountenances what-
i

ever is vicious, and teaches an universal virtue, for
which it is deservedly called, simply, by the name of
virtue in the general ; concerning which thus Homer
and Aristotle, It is the most excellent of all the virtues,
and that nor morning nor evening star is so bright or
lovely as this.

This justice is the subject of the royal care, without
which a king cannot act in his judicial capacity as he
ought to do, and without which he cannot justly
engage in any war : but this being once attained and
strictly adhered to, the whole regal office will, in all
respects, be adequately and completely discharged ; so
that (to sum up what we have said) happiness consists
in the perfect exercise of all the virtues ; and since
that justice which is taught and acquired by the law,
is universal virtue, it follows, that he who has attained
this justice, is made happy by the laws, consequently
has attained the summum bonum, or beatitude, since
that and happiness in this fleeting life mean the same
thing.

Not that the law itself can do this exclusive of
divine grace : nor will you be able to learn either
what is law or virtue without it, not so much as in the
inclination to it. For, as Parisiensis says, " The
internal appetitive virtue of man is so vitiated by
original sin, that vicious practices relish pleasantly,
and the works of virtue seem harsh and difficult.**
Wherefore, that some give themselves up to admire
and follow virtue, is owing to the grace of God, and
not their own natural strength or uprightness of
disposition.

May I not now ask the question. Whether the laws,
which through the divine concurrence work such good
effects, as I have laid before you, are not to be studied
with the utmost application? since he, who hath a
just notion of them, is in the way to arrive at that
felicity, which, according to the philosophers, is the

end and completion of all human desires, and the
chief good of this life.

Though what I have hitherto offered is of general
consideration only, and therefore may not seem to
concern you, as you are heir apparent to a Crown ;
yet, the words of the Prophet lay an obligation on
you, even in that capacity, to apply yourself to the
study of the law, when he says, *' Be instructed, ye
judges of the earth," (Ps. ii. lo.) The Prophet does
not here persuade to the learning of any mechanical
art or trade, nor yet of any science in theory, how
proper or beneficial soever to mankind ; for he does
not say in general, Be instructed, ye inhabitants of the
earth, but addresses himself in a particular manner to
the kings, or rulers of this world ; and exhorts them to
the study of the law, according to which they ought
to administer justice and judgment to their people :
" Be instructed, ye judges of the earth." — It follows,
lest at any time the Lord be angry, and ye perish from
the right way." Neither, great Sir ! do the Scriptures
only oblige you to be instructed in the laws, by which
justice is to be learned and attained, but in another
place gives it you in charge to love justice herself,
saying, " Love righteousness, ye that be judges of the
earth." (Wisd. Solomon i. i.)

CHAP. V.

Ignorance of the Laws causes a Contempt thereof.

But, Sir! how will you love righteousness, or
justice, unless you first acquire a competent knowledge
of the laws, by which justice is to be learned and
[known : for, as the philosopher says, *' Nothing is
admired or loved unless it be known," which made the
orator Fabius say, " That it would be well with the
arts and sciences, if artists only were to make a judg-

ment of them." What is not known, is so far from being
loved, that it is usually despised, as saith a certain poet,

The Rustic what he knows not always slights.

Nor is this the way of the clown only, but of men of
learning and skill in the liberal arts and sciences.
Suppose (for instance) a natural philosopher, who had
never studied either the Mathematics, or Metaphysics,
should be told by a Metaphysician that his science
considers things abstracted from all matter and motion,
both as to their essence or reality, and as to our con-
ception of them : the Mathematician asserts, that his
science considers things in reality conjoined to matter
and motion, but separated from them in our conception :
it is certain that our Naturalist, who was never
acquainted with any thing separated from matter and
motion, either in reality or conception, would not
forbear laughing at both of them, and would be apt to
despise their respective sciences, though of a sublimer
nature than his own ; and that for no other reason,
but because he is perfectly unacquainted with them.
So (my Prince) would you in like manner be surprised
at a lawyer who should assert, that one brother shall
not succeed in the father's inheritance to another
brother, who is not born of the same mother, but that
the inheritance shall rather descend to the sister of the
whole blood, or it shall come to the lord of the fee by
way of escheat : you would be surprised (I say) at this,
as not knowing the reason of the law in this particular
case. Whereas the seeming difficulty of this case
gives no perplexity at all to such as are skilled in the
common law of England : which confirms the vulgar
saying, " The arts and sciences have no enemy but the
unlearned."

But far be it, my Prince, that you should prove
averse, or an enemy to the laws of that country to
which you will in time inherit by right of succession,

when the above cited text of Scripture instructs you
to love righteousness. Wherefore, most noble Prince,
permit me again and again to importune and beseech
you to inform yourself thoroughly in the laws of your
father's kingdom, not only that you may avoid the
inconveniences I have mentioned, but because the
mind of man, which has a natural propensity to what
is good, and can desire nothing but as it has the
appearance of good, as soon as by instruction it comes
to a perfect knowledge of that good, it rejoices, takes
pleasure therein, and as it improves by reflections, the
pleasure grows more and more ; from whence you
may infer, that when you come to be instructed in
those laws, to which you are at present a stranger,
you will most certainly afEect and love them, because
they are excellent in their nature and reason ; and
the more you know of them, the more will you be
entertained and pleased.

For what is once loved does by use transform the
person into its very nature, according to the philosopher,
" Use becomes a second nature." So the cion of a
pear-tree grafted on an apple-stock, after it has taken,
draws the apple so much into its nature, that both
become a pear-tree, and are called so from the fruit
which they produce. So, virtue put in practice grows
into a habit, and imparts its very name to those w^ho
practice it : as we say of one who is indued with
modesty, continence or wisdom, that he is modest,
continent, wise. So you (my Prince) when you shall
have practised justice with delight and pleasure, and
have, as it were, transcribed the law, with the rule
of justice, into your very habit and disposition, will
deservedly obtain the character of a just prince. And,
as such, be saluted with those agreeable words of the
Psalmist, " Thou lovest righteousness, and hatest
wickedness, therefore God, thy God, shall anoint thee
with the oil of gladness above thy fellows," (Ps. xlv. 7.)

CHAP. VI.

A Repetition of his Exhortation.

And now, most gracious Prince, are not these
arguments, which I have offered, abundantly sufficient
to induce you to the study of the law ? Since thereby
you will acquire a habit of justice, be honoured with
the name and character of a just prince ; not to say,
that you will thereby also avoid the imputation and
disgrace which attends ignorance ; and moreover you
will thereby attain to (that, which all men covet after)
happiness, as far as it is attainable in this life ; and
through that fear of God which is the truest wisdom,
and that charity or love of God which, in the peace
and satisfaction of it, passes all understanding, being,
as it were, united to the best and greatest Being, the
fountain of all happiness and perfection, you will
become (to use the Apostle's expression) one spirit
with him.

But, because these things (as I said) cannot be
wrought in you merely by the law, without the special
assistance of divine grace, it is necessary that you
implore for that above all things ; as also that you
search diligently into the knowledge of the divine law,
as contained in the Holy Scriptures. For Holy Writ
saith, " Vain are all men by nature who are ignorant
of God," (Wisd. Solomon xiii. i.) I advise you,
therefore, my Prince, that whilst you are young, and
your soul is, as it were a virgin-table, a blank space,
you write it full with such things as I have above
hinted at, lest afterwards it be more pleasantly, though
delusively filled with characters of little or no im-
portance, according to the saying of a certain author :
The vessel its first tincture long retains.

What mechanic is there so inattentive to the
advantage of his child, as not to instruct him in his

trade while he is young, whereby he may afterwards gain
a comfortable subsistence. So the carpenter teaches his
son to handle the axe ; the smith brings up his at the
anvil ; a person designed for the sacred office of the
ministry is bred, in a liberal way, at school : so it
becomes a king to have his son (who is to succeed him)
instructed in the laws of his country whilst he is yet
young. Which rule, if kings would but observe, the
world would be governed with a greater equality of
justice, than now it is. And, if you please to follow
the advice I give, you will show an example of no
small consequence to other princes, persons of the
same high rank and distinction with yourself.

CHAP. VII.

The Prince yields his Assent j but proposes his Doubts.

The Chancellor having ended, the Prince began

follows : You have overcome me, good Chancellor,

ith your agreeable discourse ; and have kindled

ithin my breast a more than ordinary thirst after the

owledge of the law. There are two things, never-

eless, which make me fluctuate, so that, like a ship

a storm, I know not which way to direct my

ourse. One is, when I recollect how many years

itudents of the law are taken up, before they arrive at

ny competent knowledge of it : which discourages

e, lest I employ all my younger years in like

anner : another thing is, whether to apply myself to

he study of the laws of England, or of the Civil LawSy

which are so famous throughout the universe : for a

kingdom ought to be governed by the best of laws,

IHjpiccording to the philosopher, nature always covets

^^^?vhat is best. Wherefore I would willingly attend

what you advise in this matter. To whom the

Khancellor : Sir ! there is no such mystery in these

things, as to require abundance of deliberation ; and
therefore I shall give you my thoughts upon the matter
without keeping you in suspense.

CHAP. VIII.

Such a Knowledge of the Law as is necessary for a
Prince is soon to be acquired.

The philosopher, in the first of his Physics, says,
" 'Tis supposed that we then know every thing, when
we apprehend the causes and principles thereof as
high up as the first elements : " upon which the
Commentator observes, that by principles, Aristotle
meant the efficient causes, that by causes, the final
causes are intended, and by elements the matter and
form : now in the laws there are not, properly speak-
ing, matter and form, these being what go to the
composition of natural things ; but something analo-
gous to it however, viz. certain elements, out of which
they arise, as Customs, Statutes, or Acts of Parliament
and the Law of Nature : whereof the laws of par-
ticular kingdoms consist, as natural things do of
matter and form ; what we read or write consists of
letters which are called the elements of Reading and
Writing. As for the Principia, which the Com-
mentator calls the efficient causes, these are no other
than certain Universalia, which the learned in the law,
as well as mathematicians, call Maxims, in rhetoric
they are called Paradoxes, the civilians call them
Rules of Law. They are not discoverable by stress of
arguments or logical demonstrations, but as is said
(secundo posteriorum) by induction, by the assistance
of the senses and the memory : wherefore, in the first
of his Physics, Aristotle has it, that " principles are not
made up of other things, nor one of another. But
other things proceed from them ; " wherefore, accord-

ing to the same author, the first of his topics, it is,
that *' every principle carries its own evidence with it,
so that there is no disputing with those who deny first
principles : " because, as the same philosopher writes in
the first of his Ethics, " Principles do not admit of
proof by reason and argument."

Whosoever therefore desires to get a competent
understanding in any faculty of science, must by all
means be well instructed in the principles thereof.
For, by reasoning from these principles, which are
universally acknowledged and uncontested, we arrive
at length at the final causes of things. So that, who-
ever is ignorant of these three, the principles, causes
and elements of any science, must needs be totally
ignorant of the science itself; on the other hand,
when these are known, the science itself is known too,
at least in general and in the main ; though not
distinctly and completely.

So we judge that we know the law of God, in
knowing what is faith, hope, charity, the sacraments
and God's commandments : leaving other mysteries
in Divinity to those who preside in the Church.
Wherefore, our blessed Saviour says to his disciples,
" Unto you it is given to know the mysteries of the
kingdom of God, but to others in parables, that seeing
they might not see, and hearing they might not
understand." And the Apostle cautions, " Not to
think of one's self more highly than we ought ^to
think," (Rom. xii. 5 and 16.) And, in another place,
" not to mind high things, not to be wise in our own
conceits."

So, my Prince, there will be no occasion for you to
search into the arcana of our laws with such tedious
application and study ; it will be sufficient, as you
have made some progress in grammar, to use the same
method and proportion in the study of the laws. As
to grammatical learning, which consists of Etymology,

Orthography^ Prosodia and Syntax, as so many springs
or fountains running together to complete it ; you are
not so perfect a master, it is true, as to be acquainted
with all the particular rules and exceptions com-
prehended under each of these ; but yet that general
knowledge of grammar, which you have acquired, is
sufficient for your purpose, from whence you may be
justly stiled, a grammarian.

In like manner you may be deemed a lawyer in
some competent degree, when, as a learner, you shall
become acquainted with the principles, causes and
elements of the law. It will not be convenient by
severe study, or at the expence of the best of your
time, to pry into nice points of law ; such like matters
may be left to your judges and counsel, who in
England are called Sergeants at Law, and others well
skilled in it, whom in common speech we call
Apprentices of the law : you will better pronounce
judgment in your courts by others than in person : it
being not customary for the kings of England to sit in
court, or pronounce judgment themselves ; and yet
they are called the Kings judgments, though pro-
nounced and given by others : as Jehoshaphat asserted,
that '* they judged not for man, but for the Lord, who
was with him in the judgment," (2 Chron. xix. 6.)

Wherefore, most gracious Prince, you will soon,
with a moderate application, be sufficiently instructed
in the laws of England, if so be you give your mind to
it. Seneca, in an epistle to Lucillus, says, "There is
nothing but what great pains and diligent care will
get the better of." I know very well the quickness of
your apprehension and the forwardness of your parts ;
and I dare say, that in those studies, though a know-
ledge and practice of twenty years is but barely
sufficient to qualify for a judge, you will acquire a
knowledge sufficient for one of your high quality,
within the compass of one year ; and in the mean

while attend to, and inure yourself to martial exercises,
to which your natural inclination prompts you on so
much, and still make it your diversion, as shall best
please you, at your leisure.

" Lucubrationes viginti annorum."

CHAP. IX.

A King, whose Government is political, cannot
change the Laws.

The next thing, my Prince, at which you seem to
hesitate, shall, with the same ease, be removed and
answered, that is, whether you ought to apply yourself
to the study of the Laws of England, or to that of the
Civil Laws, for that the opinion is with them every
where, in preference to all other human laws : let not
this difficulty, Sir ! give you any concern. A King of
England cannot, at his pleasure, make any alterations in
the laws of the land, for the nature of his government is
not only regal, hut political. Had it been merely regal,
he would have a power to make what innovations
and alterations he pleased, in the laws of the kingdom,
impose tallages and other hardships upon the people,
whether they would or no, without their consent,,
which sort of government the Civil Laws point out,
when they declare Quod principi placuit legis habet
vigorem : but it is much otherwise with a king, whose
government is political, because he can neither make any
alteration, or change in the laws of the realm without
the consent of the subject, nor burthen them, against their
wills, with strange impositions, so that a people
governed by such laws as are made by their own con-
sent and approbation enjoy their properties securely, and
without the hazard of being deprived of them, either by
the king or any other : the same things may be effected

under an absolute prince, provided he do not degenerate
into the tyrant.

Of such a prince, Aristotle, in the third of his
Politics, says, "It is better for a city to be governed by
a good man, than by good laws." But because it
does not always happen, that the person presiding over
a people, is so qualified, St. Thomas, in the book
which he wrote to the king of Cyprus, (De Regimine
Principum,) wishes, that a kingdom could be so instituted^
as that the king might not be at liberty to tyranize over
his people ; which only comes to pass in the present case ;
that is, when the sovereign power is restrained by politi-
cal laws. Rejoice therefore, my good Prince, that
such is the law of that kingdom to which you are
to inherit, because it will afford both to yourself and
subjects, the greatest security and satisfaction.

With such a law, saith the same St. Thomas, all
mankind would have been governed, if, in the Paradise,
they, had not transgressed the command of God.
With the same was the whole nation of the Jews
governed, under the theocracy, when God was their
king, who adopted them for his peculiar people : till,
at length, upon their own request, having obtained
another sort of king, they soon found reason to repent
them of their foolish and rash choice, and were
sufficiently humbled under a despotic government : but,
when they had good kings, as some there were, the
people prospered and lived at ease ; but when they
were otherwise, their condition was both wretched and
without redress. Of this you may see a particular
account in the Book of the Kings. This subject being
sufficiently discussed in a small piece I formerly drew
up on purpose for your use, concerning the Law of
Nature, I shall forbear at present to enlarge.

CHAP. X.

The Prince proposes a Question.

Prince. How comes it to pass, my Chancellor, that
one king may govern his subjects in such an absolute
manner, and a power in the same extent is unlawful
for another king : seeing kings are equal in dignity, I
am surprized that they are not likewise equal in the
extent and exercise of their power.

CHAP. XI.

THE chancellor's ANSWER.

The Chancellor for Answer refers the Prince to his
Treatise concerning the Laws of Nature^ where the
aforesaid Question is handled at large.

Chancellor. I have. Sir ! in the small piece referred
to, sufficiently made appear, that the king who
governs by political rules has no less power than him,
who governs his subjects at his mere will and pleasure ;
yet, that the authority which each has over their
subjects is vastly different, I never disputed it. The
reason of which, I shall, in the best manner I can,
endeavour to explain.

CHAP. xn.

How Kingdoms ruled by regal Government first began.

Formerly, men who excelled in power, being
ambitious of honor and renown, subdued the nations
which were round about them by force of arms ; they

bliged them to a state of servitude, absolutely to
obey their commands, which they established into
laws, as the rules of their government. By long con-

inuance and suffering whereof, the people, though

under such subjection, finding themselves protected
by their governors from the violence and insults of
others, submitted quietly to them, thinking it better
to be under the protection of some government, than
to be continually exposed to the ravages of every one,
who should take it in their heads to oppress them.
From this original and reason some kingdoms date
their commencement, and the persons invested with
the power, during such their government, d regendo
(from Ruling) assumed and usurped to themselves the
name of Rex {Ruler or King) and their power obtained
the name of Regal.

By these methods it was, that Nimrod first acquired
to himself a kingdom, though he is not called a king
in the Scripture, but, A mighty hunter before the Lord.
For, as an hunter behaves towards beasts, which are
naturally wild and free ; so did he oblige mankind to
be in servitude and to obey him. By the same
methods Belus reduced the Assyrians; so did Ninus
by the greatest part of Asia : thus the Romans arrived
at universal empire : in like manner kingdoms began
in other parts of the world. Wherefore, when the
children of Israel desired to have a king, as all the
nations round about them then had, the thing dis-
pleased God, and he commanded Samuel to shew
them the manner of the king who should reign over
them, and the nature of his government ; that is,
mere arbitrary will and pleasure, as is set forth at
large, and very pathetically, in the first Book of
Samuel. And thus, if I mistake not, most excellent
Prince, you have had a true account how those king-
doms first began, where the government is merely
Regal : I shall now endeavour to trace the original of
those kingdoms, where the form of government is
political ; that so, the first rise and beginning of both
being known, you may more easily discern the reason
of that wide difference which occasioned your question.

CHAP. XIII.

How those ruled by political Government first began.

St. Austin, in his book, de Civitate Dei, has it
" That a people is a body of men joined together in
society by a consent of right, by an union of interests,
and for promoting the common good ; " not that a
people so met together in society can properly be
called a body, as long as they continue without a
head ; for, as in the body natural, the head being cut
off, we no longer call it a body but a trunk; so a
community, without a head to govern it, cannot in
propriety of speech be called a body politic. Wherefore,
the philosopher, in the first of his politics, says, " When-
soever a multitude is formed into one body or society
one part must govern, and the rest be governed."
Wherefore, it is absolutely necessary, where a company
of men combine and form themselves into a body
politic, that some one should preside as the governing
principal, who goes usually under the name of King.

In this order, as out of an embrio, is formed an
human body, with one head to govern and control
it ; so, from a confused multitude is formed a regular
kingdom, which is a sort of a mystical body, with one
person, as the head, to guide and govern. And, as
in the natural body (according to the philosopher) the
heart is the first thing which lives, having in it the
blood, which it transmits to all the other members,
thereby imparting life, and growth and vigour; so,
in the body politic, the first thing which lives and
moves is the intention of the people, having in it the
blood, that is, the prudential care and provision for
the public good, which it transmits and communicates
to the head, as the principal part ; and to all the rest
of the members of the said body politic, whereby it
subsists and is invigorated.

The law, under which the people is incorporated,
may be compared to the nerves or sinews of the body
natural ; for, as by these the whole frame is fitly
joined together and compacted, so is the law that
ligament (to go back to the truest derivation of the
word, lex a ligando) by which the body politic, and
all its several members are bound together and united
in one entire body. And as the bones, and all the
other members of the body preserve their functions,
and discharge their several offices by the nerves; so
do the members of the community by the law. And
as the head of the body natural cannot change its
nerves or sinews, cannot deny to the several parts their
proper energy, their due proportion and aliment of
blood ; neither can a king, who is the head of the body
politic, change the laws thereof, nor take from the people
what is their s, by right, against their consents.

Thus you have. Sir, the formal institution of every
political kingdom, from whence you may guess at the
^power which a king may exercise with respect to the
laws and the subject. For he is appointed to protect
his subjects in their lives, properties and laws ; for this
very end and purpose he has the delegation of power from
the people ; and he has no just claim to any other power
but this. Wherefore, to give a brief answer to that
question of your's concerning the different powers
which kings claim over their subjects, I am firmly of
opinion that it arises solely from the different natures
of their original institution, as you may easily collect
from what has been said. So the kingdom of England
had its original from Brute and the Trojans, who
attended him from Italy and Greece, and became a
mixt kind of government, compounded of the regal
and political. So Scotland, which was formerly in
subjection to England in the nature of a dutchy,
became a government partly regal, partly political.

Many other kingdoms, from the same original,

have acquired the same form of government ; whence
Diodorus Siculus, in his second book of Ancient History,
concerning the Egyptians, says thus: "The kings of
Egypt originally did not live in such a licentious
manner as other kings, whose will was their law : but
were subject to the same law, in common with the
subject, and esteemed themselves happy in such a
conformity to the laws." For, it was their opinion
that many things were done by those who gave a
loose to their own will, which exposed them to
frequent and great dangers and disadvantages. The
same author in his fourth book writes thus : " He who
is chosen king of Ethiopia leads a life conformable to
the laws, and behaves in every respect according to
the customs of his country, neither rewarding, or
punishing any one.; but according to the laws handed
down from his predecessors." In like manner he
writes concerning the king of Saha in Arabia Felix :
in the same manner concerning other kings in ancient
history ; who, pursuing the same methods of govern-
ment, reigned prosperously and with reputation.

CHAP. XIV.

The Prince abridges what the Chancellor had been
discoursing of in the two foregoing Chapters.

Prince. You have, my good Chancellor, with the
perspicuity of your discourse, dispelled that darkness
with which my understanding was obscured, and I
now perceive plainly, that no nation ever formed
themselves into a kingdom by their own compact and
consent, with any other view than this, that they

I might hereby enjoy what they had, against all dangers
and violence, in a securer manner than before : and
consequently, they would find themselves disappointed
of their intention, if afterwards the king they had so

set over them should despoil them of their properties,
which was not lawful for any of the community to do
before such appointment made. And the people
would be in yet a more dismal state, in case they were
to be governed by strange and foreign laws, such as
they had not been used to, such as they could not
approve of : more especially if those laws should
affect them in their properties, for the preservation
whereof, as well as of their persons, they freely sub-
mitted to kingly government ; it is plain^ that such a
power as this^ could never originally proceed from the
people ; and if not from them, the king could have no such
povoer rightfully at all : on the other hand, I conceive
it to be quite otherwise with that kingdom which
becomes so by the sole authority and absolute power
of the king. In this case, the people become subject
to him upon no other terms, but to obey and be
governed by his laws, that is, his mere will and
pleasure. Neither, Sir, has it slipt my memory, what
you have elsewhere, with solid reasons, demonstrated
in your treatise, concerning the Law of Nature, that
the power of both kings is in effect equal ; seeing a
possibility of doing amiss, which is the only privilege
the one enjoys above the other, can be called an
addition of power, no other than a possibility to decay
or die ; which, as it is only a possibility of being
deprived of something valuable, such as life or health,
is for this reason rather to be called a state of impotency,
a real weakness. " For power (as Boetius observes)
is always for some good end or purpose ; " and
therefore to be able to do mischief, • which is the sole
prerogative an absolute prince enjoys above the other,
is so far from increasing his power, that it rather
lessens and exposes it.

The blessed spirits above, which are already fixed
in their seats of happiness, and put beyond a possibility
of sinning, are, in that respect, superior to us in power,

who are always liable to do amiss, and to work
iniquity with greediness. It only now remains to
enquire, whether the law of England^ to the study
whereof you invite me, be as well adapted and effectual
for the government of that kingdom, as the Civil Law
(by which the holy Roman Empire is regulated) is
generally thought to be, for the government of the
rest of the world. Satisfy me but in this point by
some clear and convincing proof; and I will im-
mediately apply myself to the study you propose,
without troubling you with any more of my scruples.

CHAP. XV.

All Laws are the Law of Nature, Customs or Statutes.

Chancellor. I observe, Sir, that you have given
attention, and remember well what I have hitherto
been discoursing upon, therefore you have the better
title to receive an answer to your question. Know
then, that all human laws are either the Law of Nature,
Customs, or Statutes, which are also called Constitutions :
but, the two former, when they are reduced into
writing, and made public by a sufficient authority of
the Prince, and commanded to be observed, they then
pass into the nature of, and are accepted as constitutions
or statutes, and, in virtue of such promulgation and
command, oblige the subject to the observance of
them under a greater penalty than otherwise they
could do. Such are a considerable part of the Civil
Laws which are digested in great volumes by the
Roman Emperors, and by their authority commanded
to be observed : whence they obtain the name of
the Civil Law, in like manner as all other imperial
edicts or statutes. If therefore, under these three
distinctions of the Law of Nature, Customs and
Statutes, the fountains and originals of all laws, I shall

prove the Law of England eminently to excel, then I
shall have evinced it to be good and effectual for the
government of that kingdom. Again, if I clearly
make out that it is as well accommodated for the
good of that State, as the Civil Laws are for that of
the empire then I shall have made appear, that the
Law of England is not only an excellent law, but that,
in its kind, it is as well chosen as the Civil Law. In
proof of this, I proceed.

CHAP. XVL

The Law of Nature in all Countries is the same.

The Laws of England, as far as they agree with,
and are deduced from the Law of Nature, are neither
better nor worse in their decisions than the laws of
all other states or kingdoms in similar cases. For,
as the philosopher says, in the fifth of his Ethics, ** The
Law of Nature is the same, and has the same force all
the world over." Wherefore I see no occasion to
enforce this point any farther; so now, the enquiry
rests, what the customs and statutes of England SLve :
and, in the first place we will consider and look into
the nature of those customs.

CHAP. xvn.

The Customs of England are of great Antiquity, received
and approved of by five several Nations successively.

The realm of England was first inhabited by the
Britons; afterwards it was ruled and civilized under
the government of the Romans; then the Britons
prevailed again ; next, it was possessed by the Saxons,
who changed the name of Britain into England.

After the Saxons, the Danes lorded it over us, and then
the Saxons prevailed a second time ; at last, the
Normans came in, whose descendants obtain the king-
dom at this day : and, during all that time, wherein
those several nations and their kings prevailed, England
has nevertheless been constantly governed by the same
customs, as it is at present : which if they were not
above all exception good, no doubt but some or other
of those kings, from a principle of justice, in point of
reason, or moved by inclination, would have made
some alteration or quite abolished them, especially the
Romans^ who governed all the rest of the world in a
manner by their own laws. Again, some of the afore-
said kings, who only got and kept possession of the
Realm by the sword, were enabled by the same means
to have destroyed the laws and introduced their own.
Neither the laws of the Romans which are cried
up beyond all others for their antiquity ; nor yet the
(laws of the Venetians, however famous in this respect,
their Island being not inhabited so early as Britain ;
^(neither was Rome itself at that time built ;) nor in
'Short, are the laws of any other kingdom in the world
[SO venerable for their antiquity. So that there is no
Ipretence to say, or insinuate to the contrary, but that
the laws and customs of England are not only good,
^but the very best.

CHAP. XVIII.

How Statutes are made in England.

It only remains to be enquired whether the Statute

,aw of England be good or not. And, as to that, it

loes not flow solely from the mere will of one man, as

[the laws do in those countries, which are governed in

a despotic manner ; where sometimes the nature of the

Constitution so much regards the single convenience

of the Legislator, whereby there accrues a great
disadvantage and disparagement to the subject. Some-
times also, through the inadvertency of the Prince, his
inactivity and love of ease, such laws are unadvisedly
made as may better deserve to be called corruptions,
than laws.

But, the Statutes of England are produced in quite
another manner : Not enacted by the sole will of the
Prince, hut, with the concurrent consent of the whole
kingdom, by their Representatives in Parliament. So
that it is morally impossible but that they are and
must be calculated for the good of the people : and
they must needs be full of wisdom and prudence, since
they are the result, not of one man's wisdom only, or
an hundred, but such an assembly as the Roman Senate
was of old, more than three hundred select persons ; as
those who are conversant in the forms and method of
summoning them to Parliament, can more distinctly
inform you. And, if any bills passed into a law,
enacted with so much solemnity and foresight,
should happen not to answer the intention of the
legislators : they can immediately be amended and
repealed, in the whole, or in part, that is, with the same
consent and in the same manner as they were at first
enacted into a law. I have thus laid before you, my
Prince, every species of the Laws of England, you will
of yourself easily apprehend their nature, whether they
be good or not, by comparing them with other laws :
and, when you will find none to stand in competition
with them, you must acknowledge them to be, not
only good laws, but such, in all respects, as you your-
self could not wish them to be better.

CHAP. XIX.

The Difference between the Civil Laws and the
Laws of England.

One thing only remains to be explained, concern-
ing which you have raised some scruples, that is,
whether the Laws of England are to be looked upon
so useful, so well accommodated to the particular
Constitution of England, as the Civil Imperial Laws
are for that of the Empire. I remember a saying of
yours, my Prince, that comparisons are odious; and
therefore I am not very fond of making them : you
will see better reasons whereby to form your judgment,
and which of the two laws may deserve the preference,
by considering wherein they differ, than by taking my
opinion in the matter upon trust. Where they agree,
they are equally praiseworthy ; but in cases where
they differ, that law which is the most excellent in its
kind, after mature consideration, will eminently
appear so to be : wherefore I shall produce some such
cases, that you may weigh them in an equal balance,
and thereby know for certain, which law is the more
just and rational in its decisions : and first, I shall
propose some instances of cases, which appear to me
the most considerable.

CHAP. XX.

The first Case wherein the Civil Laws and the
Laws of England differ.

Where any have a controversy depending before
a Judge, and they come to a trial upon the matter of
fact, which those who are skilled in the laws of
England, term the Isstie of the Plea in question : the
issue of such plea, by the rules of the Civil Law, is to

be proved by the deposition of witnesses, and two
witnesses are held sufficient : but, by the Laws of
England, the truth of the matter cannot appear to the
Judge, but upon the oath of twelve men of the neigh-
bourhood, where the fact is supposed to be done.
Now, the question is, which of those two ways of
proceeding, so different, is to be esteemed the more
rational and effectual for the discovery of the truth.
That law which takes the best and most certain way
of finding out the truth, is in that respect preferable to
the other, which is of less force and efficacy : in the
examination hereof, I proceed thus.

CHAP. XXI.

The Inconveniences of that Law which tries Causes
by Witnesses only.

By the course of Civil Law, the party, who, upon
the trial, holds the affirmative side of the question, is
to produce his Witnesses, whom he is at liberty to
name at his pleasure. On the other hand, a negative
is incapable of being proved ; I mean directly, though
indirectly it is otherwise. Now, he may well be
thought a person of an inconsiderable interest, and of
less application, who, from the gross of mankind and
all his acquaintance, cannot find out two, so devoid
of conscience and all faith, who, through fear,
inclination, affection, or for a bribe, will not be ready
to gainsay the truth. So that the party, to make
good his cause, is at his liberty to produce two of such a
stamp ; and if the other party had ever so much mind
to object against them, or their evidence, it will not
always happen that they are or can be known by the
party, defendant in the cause, in order to call in
question their life and conversation, that, as persons
of a profligate character, they might be cross-

examined ; upon which account their evidence might
be set aside : and, seeing their evidence is in the
affirmative^ it is not so capable of being overthrown
by circumstances, or any other indirect proofs.

Who then can live securely with respect to his life,
or estate, under such a law which is so much in favour
of any one, who has a mind to do mischief? And,
what two wicked wretches have usually so little
caution, as not to form to themselves beforehand a
perfect story of the fact, about which they know they
are to be examined, with every minute circumstance
attending it, as if they had been true and real? " For,
the children of this world (as our Saviour says) are in
their generation wiser than the children of light.*'
So, wicked Jezebel produced in judgment two witnesses,
sons of Belial, to impeach Naboth, whereby he lost his
life, and Ahab took possession of his vineyard,
(i Kings xxi. ii, 17.) Again, by the testimony of
two elders, who were judges, Susanna, the virtuous
wife of Joacim, had been put to death as an adulteress,
had not God himself miraculously interposed to rescue
her by a method so sudden and inconceivable, as
carried the plain marks of inspired wisdom, and such
as was far above the natural attainments of a youth,
not yet arrived to maturity of years or judgment.
For, though by varying in their evidence, he plainly
convicted them to be false witnesses ; yet, who but
God alone, could have foreseen that they would thus
have varied in their evidence ? Since there was no
law which obliged them to be so exact in every little
circumstance, as to remember under what kind of tree
the fact alleged was committed. For, the witnesses
of any criminal action are not supposed to take notice
of every bush, or other circumstance of place, which
seemed to import nothing, either as to the detecting
or aggravating of the crime. But, when those wicked
judges, in such their wilful deposition, varied con-

■k

cerning the species of the trees, their own words
demonstrated that they had prevaricated and deviated
from the truth, whereby they deservedly incurred the
sentence of the law of Moses, according to which, they
did unto them in such sort as they maliciously
intended to do to their neighbour : and they put them
to death.

You have, most gracious Prince ! within your own
memory, a remarkable instance, how much Justice
may be perverted, in the case of Mr. John Fringe:
who, after he had been in priests' orders for three
years, was, by his own procurement, and the deposi-
tion of two false witnesses, (who swore that he had
been formerly contracted to a certain young girl)
compelled to quit his orders and to marry her : after
cohabiting with her fourteen years, and having had
by her seven children, being at last convicted of high
treason against your highness, in the very article of
death, and in the hearing of a multitude of people,
he declared that those witnesses had been suborned
by him, and that what they deposed was utterly false
and groundless. Many like instances you may have
heard of, where justice has been perverted by means
of false witnesses ; even under judges of the greatest
integrity, as is notorious to those, who converse with
and know mankind. This sort of wickedness, alas!
is but too frequently committed.

CHAP. XXII.

Concerning Torture and putting to the Rack.

For this reason, the Laws of France, in capital
cases, do not think it enough to convict the accused
by evidence, lest the innocent should thereby be con-
demned ; but they choose rather to put the accused
themselves to the Rack, till they confess their guilt.

than rely entirely on the deposition of witnesses,
who, very often, from unreasonable prejudice and
passion ; sometimes, at the instigation of wicked men,
are suborned, and so become guilty of perjury. By
which over cautious, and inhuman stretch of policy,
the suspected, as well as the really guilty, are, in that
kingdom, tortured so many ways, as is too tedious
and bad for description. Some are extended on the
rack, till their very sinews crack, and the veins gush
out in streams of blood : others have weights hung
to their feet, till their limbs are almost torn asunder,
and the whole body dislocated : some have their
mouths gagged to such a wideness, for a long time,
whereat such quantities of water are poured in,
that their bellies swell to a prodigious degree, and
then being pierced with a faucet, spigot, or other
instrument for the purpose, the water spouts out in
great abundance, like a whale (if one may use the
comparison) which, together with his prey, having
taken in vast quantities of sea-water, returns it up
again in spouts, to a very great height. To describe
the inhumanity of such exquisite tortures affects me
with too real a concern, and the varieties of them are
not to be recounted in a large volume.

The Civil Laws themselves, where there is a want
of evidence in criminal cases, have recourse to the like
methods of torture for sifting out the truth. Most
other kingdoms do the same : now, what man is there
so stout or resolute, who has once gone through this
horrid trial by torture, be he never so innocent, who
will not rather confess himself guilty of all kinds of
wickedness, than undergo the like tortures a second
1 time? Who would not rather die once, since death
■ would put an end to all his fears, than to be killed so

Inany times, and suffer so many hellish tortures, more
errible than death itself ? Do you not remember, my
Prince, a criminal, who, when upon the rack, im-
!

peached (of treason) a certain noble knight, a man of
worth and loyalty, and declared that they were both
concerned together in the same conspiracy : and, being
taken down from the rack, he still persisted in the
accusation, lest he should again be put to the question.
Nevertheless, being so much hurt and reduced by the
severity of the punishment, that he was brought almost
to the point of death, after he had the Viaticum and
Sacraments administered to him, he then confessed,
and took a very solemn oath upon it, by the body of
Christ ; and as he was now, as he imagined, just going
to expire, he affirmed that the said worthy knight was
innocent and clear of every thing he had laid to his
charge : he added, that the tortures he was put to were
so intolerable, that, rather than suffer them over again,
he would accuse the same person of the same crimes ;
nay, his own father : though, when he said this, he
was in the bitterness of death, when all hopes of
recovery were over. Neither did he at last escape that
ignominious death, for he was hanged ; and, at the
time and place of his execution, he acquitted the said
knight of the crimes wherewith he had, not long before,
charged him. Such confessions as these, alas ! a great
many others of those poor wretches make, not led by
a regard to truth, but compelled to it, by the exquisite-
ness of their torments : now, what certainty can there
arise from such extorted confessions ; but, suppose a
person falsely accused should have so much courage,
so much sense of a life after this, as, amidst the terrors
of this fiery trial (like the three young Jews of old,
Dan. iii.) neither to dishonour God, nor lie to the
damnation of his soul, so that the judge should
hereupon pronounce him innocent : does he not with
the same breath pronounce himself guilty of all that
cruel punishment, which he inflicted upon such person
undeservedly ? And how inhuman must that law be,
which does its utmost to condemn the innocent, andi

convict the judge of cruelty ? A practice so inhuman,
deserves not indeed to be called a law, but the high
road to hell.

O judge ! in what school of humanity did you
learn this custom of being present and assisting, while
the accused wretch is upon the rack ? The execution
of the sentence of the law upon criminals is a task fit
only for little villains to perform, picked out from
amongst the refuse of mankind, who are thereby
rendered infamous for ever after, and unfit to act, or
• appear, in any Court of Justice. God Almighty does
not execute his judgments on the damned by the
ministration of angels^ but of devils ; in purgatory^ they
are not good spirits, which torment and exercise souls,
though predestinated to glory, but evil spirits. In this
world, the wicked, by the permission of God, inflict
the evil of punishment on sinners. For, when God
said, (i Kings xxii. 20.) " Who shall persuade Ahah
that he may go up and fall at Ramoth Gilead,'' it was
an evil spirit which came forth and said, " I will be
a lying spirit in the mouth of all his prophets : "
though God, for just reasons, had determined to suffer
Ahab to be persuaded, and deceived by a lie, yet was
it by no means becoming a good spirit to be employed
on such an errand.

Perhaps, the judge will say, I have done nothing of
myself in inflicting these tortures, which are not by way
of punishment, but trial; but, how does it differ,
whether he does it himself, while he is present on the
bench, and, with reiterated commands, aggravates the
nature of the crime, and encourages the officer in the
execution of his office. It is only the master of the
ship who brings her into port, though, in pursuance of
his orders, others ply the steerage : for my own part, I
see not how it is possible for the wound, which such a

Iidge must give his own conscience, ever to close up
r be healed ; as long, at least, as his memory serves

him to reflect upon the bitter tortures so unjustly and
inhumanly inflicted on the innocent.

CHAP. XXIII.

The Civil Law defective in doing Justice.

Further, if a right accrues to a man to plead
upon a trial, which arises from a contract^ a fact done,
a title of inheritance, or the like : in these cases, if
either there were no witnesses at the first ; or if they
that were, are dead, the plaintiff will be obliged to
drop his action, unless he can prove his right by such
strong circumstantial proofs, as are not to be evaded,
which seldom happens. Where lordships, and other
possessions are in dispute ; and in all other actions
which fall under the jurisdiction of the Civil Law, the
actions of the plaintiffs are very often rendered in-
capable of being brought to an issue for want of
evidence, so that scarce one half of them can attain
the end proposed : under what denomination then is
that law to be ranged, which, where parties are injured,
is so defective in making satisfaction. I question
whether such a law can be called just, if that be true
which this very law informs us, (viz.) " That justice
gives to every one their due ; " which such a law as
this most certainly does not.

CHAP. XXIV.

The Division of Counties. Sheriffs and their
Appointment.

It being thus explained how the Civil Laws direct
the judge concerning the truth of a fact, which is
brought on to trial, it remains to be explained how
the Laws of England boult out the truth of a fact.

when it comes in issue. The manner of proceeding in
both laws being laid, and compared together, their
qualities will appear the more eminently, according to
that saying of the philosopher^ " Opposites placed
together give light to one another." But here, by
way of introduction, and to borrow the rule or method
used by orators, it may be necessary to premise some
things, a right understanding whereof will help to let
us into a more clear and distinct understanding of
what follows : I proceed thus : England is divided into
Counties, as France is into Bailliwicks, or Provinces, so
that there is no place in England, which is not within
the body of some County : counties are divided into
Hundreds, which in some parts of England are called
Wapentakes, and Hundreds again, are subdivided into
Vills, under which appellation Cities and Boroughs are
included.

The boundaries of those Vills are not ascertained
by walls, buildings or streets ; but, by a compass of
fields, large districts of land, some hamlets, and divers
other limits ; as rivers, water-courses, wood-lands,
and wastes of common, which there is now no
occasion to describe by their particular names ;
because there is scarce any place in England, but what
is within the limits of some Vill, though there be
certain privileged places within Vills which are not
reputed as parts or parcels of such Vills ; farther,
there is in every county a certain officer, called the
King's Sherijf, who, amongst other duties of his office,
executes within his county all mandates and judg-
ments of the King's Courts of Justice : he is an annual
officer ; and, it is not lawful for him, after the expiration
of his year, to continue to act in his said office, neither
shall he be taken in again to execute the said office
within two years thence next ensuing.

The manner of his election is thus : Every year,
on the morrow of All-Souls, there meet in the King's

Court of Exchequer all the King's Counsellors, as well
Lords spiritual and temporal, as all other the King's
Justices, all the Barons of the Exchequer, the Master
of the Rolls, and certain other officers, when all of
them, by common consent, nominate three of every
county Knights or Esquires^ persons of distinction,
and such as they esteem fittest qualified to bear the
office of Sheriff of that county, for the year ensuing :
the king only makes choice of one out of the three so
nominated and returned. Who, in virtue of the
King's Letters Patent, is constituted High Sheriff of
that county, for which he is so chosen, for the year
then next ensuing. But, before he can take upon him
to act in consequence of the said Letters Patent, he
shall swear upon the holy Evangelists, amongst other
clauses, well, faithfully and indifferently to execute
and do his duty for that year, and that he will not
receive anything, under pretext or color of his said
office, from any one, other than and except from the
King's Majesty. This being premised, let us now
proceed to those other matters which fall in with our
present enquiry.

CHAP. XXV.

Jurors. How chosen and sworn.

Whensoever the parties, contending in the King's
Courts, are come to the issue of the Plea, upon the
matter of fact, the justices forthwith, by virtue of the
Kings Writ, write to the Sheriff of the County, where
the fact is supposed to be, that he would cause to
come before them, at a certain day, by them appointed,
twelve good and lawful men of the neighbourhood,
where the fact is supposed, who stand in no relation
to either of the parties who are at issue, in order to
enquire and know upon their oaths, if the fact be so

as one of the parties alleges, or whether it be as the
other contends it, with him. At which day the
Sheriff shall make return of the said Writ before the
same Justices, with a panel of the names of them
whom he had summoned for that purpose.

In case they appear, either party may challenge
the array, and allege, that the Sheriff hath acted
therein partially, and in favour of the other party,
(viz.) by summoning such as are too much parties in
the cause and not indifferent ; which exception, if it
be found to be true upon the oath of two men of the
same panel, pitched on by the Justices, the panel shall
immediately be quashed, and then the Justices shall
write to the Coroners of the same County, to make a
new panel; in case that likewise should be excepted
against, and be made appear to be corrupt and vicious,
this panel shall also be quashed. Then the Justices
shall choose two of the clerks in Court, or others
of the same County, who, sitting in the court, shall
upon their oaths, make an indifferent panel, which
shall be excepted to by neither of the parties;
but, being so impanelled, and appearing in Court, either
party may except against any particular person ; as
he may at all times, and in all cases, by alledging
that the person so impanelled is of kin, either by blood,
or affinity to the other party ; or in some such particular
interest, as he cannot be deemed an indifferent person
to pass between the parties : of which sort of
exceptions there is so much variety, as is impossible
to shew in a small compass : if any one of the excep-
tions be made appear to the Court to be true and
reasonable, then he against whom the exception is
taken, shall not be sworn, but his name shall be struck
out of the panel : in like manner shall be done with
all the rest of the panel, until twelve be sworn : so
indifferent, as to the event of the cause, that neither of
the parties can have reasonable matter of challenge

against them : out of these twelve, four, at the least,
shall be HundredorSy dwelling in the Hundredy
where the Vill is situate, in which the fact disputed is
supposed to be : and every one of the Jury shall have
lands, or revenues, for the term of his life, of the yearly
value at least of forty shillings.

This method is observed in all actions and causes,
criminal, real or personal ; except where, in personal
actions, the damages, or thing in demand, shall not
exceed forty marks English money : because, in such
like actions of small value, it is not necessary, nor
required, that the Jurors should be able to expend so
much ; but they are required to have lands, or revenues,
to a competent value, at the discretion of the Justices ;
otherwise they shall not be accepted ; lest, by reason
of their meanness and poverty, they may be liable to
be easily bribed, or suborned : and in case, after all
exceptions taken, so many be struck out of the panel,
that there does not remain a sufficient number to
make up the Jury, then it shall be given in charge to
the Sheriff, by virtue of the Kings Writ, that he add
more Jurors; which is usually and often done, that
the enquiry of the truth upon the issue in question
may not remain undecided, for want of Jurors. This
is the form how Jurors, who enquire into the truth, ought
to he returned, chosen and sworn in the King's Courts of
Justice: It remains to enquire and explain how they
ought to be charged and informed as to their
declaration of the truth of the issue before them.

CHAP. XXVI.

How Jurors are informed by Evidences. The way of
Proceeding in Civil Causes.

Twelve good and true men being sworn, as in the
manner above related, legally qualified, that is, having
over and besides their moveables, possessions in land
sufficient (as was said) wherewith to maintain their
rank and station ; neither suspected by, nor at variance
with either of the parties ; all of the neighbourhood ;
there shall be read to them in English, by the Court,
the Record and nature of the plea, at length, which is
depending between the parties ; and the Issue there-
upon shall be plainly laid before them, concerning the
truth of which, those who are so sworn, are to certify
the Court : which done, each of the parties, by them-
selves or their Counsel, in presence of the Court, shall
declare and lay open to the Jury all and singular the
matters and evidences, whereby they think they may
be able to inform the Court concerning the truth of the
point in question ; after which each of the parties has
a liberty to produce before the Court all such witnesses
as they please, or can get to appear on their behalf ;
who being charged upon their oaths, shall give in
evidence all that they know touching the truth of the
fact, concerning which the parties are at issue ; and, if
necessity so require, the witnesses may be heard and
examined apart, till they shall have deposed all that
they have to give in evidence, so that what the one
has declared shall not inform or induce another witness
of the same side, to give his evidence in the same
words, or to the very same effect.

The whole of the evidence being gone through, the
Jurors shall confer together, at their pleasure, as they
shall think most convenient, upon the truth of the
issue before them ; with as much deliberation and

leisure as they can well desire, being all the while in the
keeping of an officer of the Court, in a place assigned
them for that purpose, lest any one should attempt by
indirect methods to influence them as to their opinion,
which they are to give in to the Court. Lastly, they are
to return into Court and certify the Justices upon the
truth of the issue so joined, in the presence of the
parties (if they please to be present) particularly the
person who is plaintiff in the cause ; what the Jurors
shall so certify in the Laws of England^ is called the
Verdict. In pursuance of which verdict^ the Justices
shall render and form their judgment.

Notwithstanding, if the party, against whom such
verdict is obtained, complain that he is thereby
aggrieved, he may sue out a writ of Attaint^ both
against the Jury, and also against the party who
obtained it ; in virtue of which, if it be found upon
the oath of twenty-four men (returned in manner before
observed, chosen and sworn in due form of law, who
ought to have much better estates than those who were
first returned and sworn) that those, who were of the
original panel and sworn to try the fact, have given a
verdict, contrary to evidence, and their oath ; every
one of the first Jury shall be committed to the publick
gaol, their goods shall be confiscated, their possessions
seized into the King's hands, their habitations and
houses shall be pulled down, their woodlands shall be
felled, their meadows shall be plowed up, and they
themselves shall ever thenceforward be esteemed, in the
eye of the Law, infamous, and in no case whatsoever,
are they to be admitted to give evidence in any Court
of Record : the party, who suffered in the former trial,
shall be restored to every thing they gave against him,
through occasion of such their false verdict : and, who
then (though he should have no regard to conscience
or honesty) being so charged upon his oath, would not
declare the truth from the bare apprehensions and

shame of so heavy a punishment, and the very great
infamy which attends a contrary behaviour? and, if
perhaps, one or more amongst them should be so
unthinking or daring, as to prostitute their character,
yet the rest of the Jurors, probably, will set a better
value on their reputations than suffer either their good
name or possessions to be destroyed and seized in such
a manner.

Now, is not this method of coming at the truth
better and more effectual, than that way of proceeding,
which the Civil Laws prescribe? No one's cause or
right iSf in this case, lost, either by death or failure of
witnesses. The Jurors returned are well known ; they
are not procured for hire ; they are not of inferior
condition ; neither strangers, nor people of uncertain
characters, whose circumstances or prejudices may be
unknown. The witnesses or Jurors are of the neigh-
bourhood, able to live of themselves, of good reputation
and unexceptionable characters, not brought before the
Court by either of the parties, but chosen and returned
by a proper officer, a worthy, disinterested and in-
different person, and obliged under a penalty to appear
upon the trial. They are well acquainted with all
the facts, which the evidences depose, and with their
several characters. What need of more words ? there
is nothing omitted which can discover the truth of
the case at issue, nothing which can in any respect be
concealed from, or unknown to a Jury who are so
appointed and returned, I say, as far as it is possible
for the wit of man to devise.

CHAP. XXVII.
The way of Proceeding in Capital Cases.

It becomes now absolutely necessary to inquire
thoroughly how the Laws of England come at the
truth in cases criminal ; whereby the form of pro-
ceedings in both laws being made appear, we may
the better judge, which law does most effectually
discover the truth. If any suspected person who
stands accused for felony or treason committed in
England, denies the crime of which he stands accused,
before his Judges : The Sheriff of the County where
the fact is committed, shall cause to come before the
same Judges twenty-four good and lawful men of the
neighbourhood to the Vill where the fact was done,
who are in no wise allied to the person accused, who
have lands and revenues to the value of an hundred
shillings; and they are to certify to the Judges upon
the truth of the fact, wherewith the party is charged.

Upon their appearance in Court, as they come to
the book to be sworn, before they be sworn, the person
accused may challenge them, in the same manner as is
above described, and as is usually done in real actions.
Further, in favour of life, he may challenge five and
thirty ; such as he most feareth and suspecteth, who,
upon such challenge shall be struck out of the Panel,
or such marks set over against their names, that (to
use the term in law) they shall not pass upon him in
trial ; and this peremptorily, without assigning any
cause for such challenge ; and no exceptions are to be
taken against such his challenge : who then in England
can be put to death unjustly for any crime ? since he
is allowed so many pleas and privileges in favour of
life : none but his neighbours, men of honest and good
repute, against whom he can have no probable cause
of exception, can find the person accused, guilty.

Indeed, one would much rather that twenty guilty persons
should escape the punishment of death, than that one

■ocent person should be condemned, and suffer capitally.

Neither can there be any room for suspicion,
that in such a course and method of proceeding, a
guilty person can escape the punishment due to his
crimes ; such a man's life and conversation would be
restraint and terror sufficient to those who should have
any inclination to acquit him : in a prosecution,
carried on in this manner, there is nothing cruel,
nothing inhuman ; an innocent person cannot suffer in
life or limb : he has no reason to dread the prejudices
or calumny of his enemies, he will not, cannot, be put
to the rack, to gratify their will and pleasure. In such
a Constitution, under such laws, every man may live
safely and securely. Judge then, good Sir ! which
law is rather to be chosen, putting yourself in the
private capacity of a subject.

CHAP. XXVIII.

The Prince owns his Conviction, that the Laws of
England are much more commodious for the Subject
as to the Proceedings in the above instances, than the
Civil Law.

To whom the Prince 1 see no difficulty at all

in the case, my good Chancellor, to make me hesitate,
or waver as to the choice I am to make ; particularly
in the manner you require and propose. For, who
would not rather live under a law which renders life
secure and happy, than where the law is found in-
sufficient for protection, and leaves a man defenceless,
under a series of insults and barbarities from one's
enemies? That man cannot in any wise be safe
either in his life or property, whom his adversary (in

many cases which may happen) will have it in his
power to convict out of the mouth of two witnesses,
such as are unknown^ produced in court and pitched
upon by the prosecutor. And, though in consequence
of their evidence, he be not punished with death, yet
an acquittal will not leave him in a much better
condition after the question has been put, which cannot
but affect the party with a contraction of his sinews
and limbs, attended with constant disorders and want
of health.

A man, who lives under such a government, as you
describe, lives exposed to frequent hazards of this sort :
enemies are designing and desperately wicked. Wit-
nesses cannot well bring about such a wicked device,
when, what evidence they give in, must be in open
Court, in the presence and hearing of a /wry, of
twelve men, persons of good character, neighbours
where the fact was committed, apprised of the cir-
cumstances in question, and well acquainted with the
lives and conversations of the witnesses, especially as
they he near neighbours^ and cannot but know whether
they be worthy of credit, or not : it cannot be a secret to
every one of the Jury what is done by, or amongst their
neighbours. I know of myself more certainly what is a
doing at this time in Berry, where I reside, than what
is doing in England : neither do I think it possible
that such things can well escape the observation and
knowledge of an honest man, as happen so near to his
habitation, even though transacted with some kind of
secrecy. But, since these things are so, I admire very
much, that the law of England, which in this respect
is so commodious and desirable, should not obtain all
the world over.

CHAP. XXIX.

The Reasons why Inquests are not made up of Jurors of
Twelve Men in other Countries.

Chancellor. At the time your highness was
obliged to quit England, you were very young, con-
sequently the natural disposition and qualities of your
native country could not be known to you ; had the
case been otherwise, upon a comparison of the
advantages and properties of other countries with
those of your own, you would not be surprized at
ose things which now agitate and disturb you.
ngland is a country so fertile, that, comparing it
ere for acre, it gives place to no one other country :
almost produces things spontaneous, without man's
hour or toil. The fields, the plains, groves, wood-
nds, all sorts of lands spring and prosper there so
uick, they are so luxuriant, that even uncultivated
ots of land, often bring in more profit to the
cupant, than those which are manured and tilled ;
ough those too are very fruitful in plentiful crops of
orn. The feeding lands are likewise enclosed with
hedge-rows and ditches, planted with trees, which
fence the herds and flocks from bleak winds, and
sultry heats, and are for the most part so well watered,
that they do not want the attendance of the hind,
either day or night.

There are neither wolves, hears, nor lions in England ;
the sheep lie out a nights without their shepherds,
penned up in folds, and the lands are improving at
the same time : whence it comes to pass, that the
inhabitants are seldom fatigued with hard labour,
they lead a life more spiritual and refined : so did the
Patriarchs of old, who chose rather to keep flocks and
herds, than to disturb 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 discern into such
causes, which require a nice examination, than those
who dwell upon their farms, and are constantly
employed in husbandry affairs, whereby they contract
a rusticity of understanding.

England is so thick-spread and filled with rich and
landed men, that there is scarce a small village in
which you may not find a knight^ an esquire, or some
substantial householder, commonly called, a, Frankleyne;
all men of considerable estates : there are others who
are called Freeholders, and many Yeomen of estates
sufficient to make a substantial Jury, within the
description before observed. There are several of those
Yeomen in England who are able to dispend by the year
a hundred pounds, and more : Juries are very often
made up of such, and, in causes of consequence, they
consist of knights, esquires, and others, whose particular
estates, in the whole, amount to upwards of three
hundred pounds a year. Wherefore it is not to be
imagined that persons, in such wealthy circumstances,
can be suborned or prevailed on to perjure themselves; |
they are supposed to be restrained, not only through
a religious principle, but also as they regard theij
honor and reputation, as they would avoid the very ]
great scandal and detriment which must accrue by
such behaviour ; and further, lest the infamy should
extend to and affect their heirs.

Other countries, my Prince, are not in such an
happy situation, are not so well stored with in-
habitants. Though there be in other parts of the
world, persons of rank and distinction, men of great
estates and possessions, yet they are not so frequent, I'"
and so near situated one to another, as in England ; \
there is no where else so great a number of land-
owners : in a whole town, in any other country, you
can scarce find a man of sufficiency enough to be

put upon a Jury : for, except in large cities and
walled towns, there are very few, besides the nobility,
who are possessors of estates, or immoveable goods,
to any considerable value. The nobility do not keep
in their hands any great scope of feeding-lands ; 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 possessions consists in vine-
yards and arable lands, except some meadow grounds,
which lie along the great rivers, and the woodlands ;
the pasture of which is in common to their tenants,
and neighbours.

How can it then be, that in such countries a Jury
n be made up of twelve honest men of the neigh-
urhood, near where any fact in question is brought on
;o trial ; seeing they cannot be well called of the
ighbourhood, who live at any remote distances? It
ill be very difficult to make up a Jury of twelve
en, though remote from the place where the fact in
uestion lies, after that the party accused shall have
halLenged his thirty-five peremptorily, who lived
earest to the place : wherefore in those countries they
ust make up a Jury, either of persons living at great
istances from the place where the fact was com-
itted ; persons wholly unacquainted with the parties
nd their circumstances ; or the Jury must consist of
eople of inferior rank, who have no proper notion,
ither of shame or infamy, who have no estates or
characters to lose ; so prejudiced and incapable in
oint of education, as to be able clearly to discern on
hich side the truth lies.

These things considered, you may cease, my PrincCy

our surprise, why that law, by means of which in

England the truth is enquired into, is not in common

other countries, because other parts of the world

cannot furnish Juries of so great sufficiency, or equally

ualified.

CHAP. XXX.

The Prince commends the Laws of England with respect
to their Proceeding by Juries.

Prince. Though we have already agreed in it,
that " comparisons be odious ; " yet the Civil Law,
as you have made out the comparison, and set forth
the reasons, is delivered from all imputation of blame
or defect : for, although you have preferred the Laws
of England to it, yet the defect is not in the law itself ;
neither the Civil Law, nor the first legislators stand
impeached : you have only demonstrated that the
country, where it prevails, is the occasion of it;
by means of which it does not so effectually get at
the truth, in dubious cases, as the Laws of England
do ; that the Law of England, in the case just now
discussed by you, is better accommodated for England
than the Civil Law, is out of dispute ; and we cannot
have the least inclination to introduce the Civil Law
instead of it : but this superior excellence of the Law
of England does not happen through any blameable
defect in the other law; but, as you say, the wealth
and populousness of the country are the cause.

CHAP. XXXL

Whether the Proceeding by Jury be repugnant to the
Law of GOD, or not. ,

But, my good Chancellor, though the method
whereby the Laws of England sift out the truth, in
matters which are at issue, highly pleases me ; yet
there rests one doubt with me, whether it be not
repugnant to Scripture : Our blessed Saviour says to
the Pharisees (St. John viii. 17.) "It is written in
your law that the testimony of two men is true."

And, in confirmation, he subjoins in the very next
verse, " I am one that bear witness of myself, and the
Father that sent me beareth witness of me." The
Pharisees were Jews ; wherefore it is the same thing to
say, " It is written in your law," as to say, " It is
written in the Law of Moses,'' which was no other
than the Law of God, given by Moses to the children
of Israel ; wherefore to contradict this Law of MoseSy
is, in effect, the same as to contradict the Law of God ;
from whence it follows, that the Law of England
deviates from this Law of God, which it does not seem
lawful in any wise to impugn. It is written also
(Matt, xviii. i6.) that our Saviour ^ speaking of
offences, and forgiving one another, amongst other
things, delivers himself thus, "If thy brother will
not hear thee, then take with thee one or two more,
that, in the mouth of two or three witnesses, every
word may be established." Now, if in the mouth of
[two or three witnesses, God will establish every word ;
why do we look for the truth in dubious cases, from
the evidence of more than two or three witnesses. No
one can lay better or other foundation, than our Lord
hath laid. This is what, in some measure, 'makes me
hesitate concerning the proceedings according to the
Laws of England, in matters of proof, wherefore, I
desire your answer to this objection.

CHAP. XXXII.

The Chancellor s Answer.

Chancellor. The Laws of England, Sir ! do not
contradict these passages of Scripture for which you
seem to be so concerned; though they pursue a
method somewhat different in coming at, and dis-
covering the truth : how does that law of a general
council prejudice or condemn the testimony of two

witnesses, whereby it is provided, that the Cardinals
shall not be convicted of any crime, unless upon the
deposition of twelve witnesses ? If the testimony of
two be true, a fortiori, the testimony of twelve ought
rather to be presumed to be so. The rule of law says,
" the more always contains in it that which is less."
So, the repayment of whatsoever the host spent more
than the two-pence, towards the taking care of the
man who fell amongst thieves, was promised to be
paid punctually to him by the good Samaritan, when
he came again. Shall not an impeached person, who
endeavours to prove himself to have been in another
place at the time of the fact alleged and committed,
be obliged to produce more than two or three
witnesses, when the prosecutor has proved, or is ready
to prove the charge by as many. So that person who
takes upon him to convict any number of witnesses of
perjury, must of necessity produce a greater number
of witnesses against them ; so that the testimony of
only two or three witnesses shall not, in all cases, be
presumed to be true.

But, the meaning of the law is this, that a less
number than two witnesses shall not be admitted as
sufficient to decide the truth in doubtful cases. And
this appears from Bernard, (Extra, de testi. ca. licet in
glossa ordinaria) where he puts many cases, in which,
by the laws, more than three witnesses are required ;
in some cases, five, in others seven. And, that the truth
in some cases may be proved by two witnesses only,
when there is no other way of discovering it, is
what the laws of England likewise affirm. As, where
facts are committed upon the high sea, without the
body of any County, which may be afterwards brought
to trial before the Admiralty -Court ; facts of this kind,
by the Constitution of England, are to be proved by
witnesses, without a Jury. In like manner are pro-
ceedings before the Lord Constable, and Earl Marshal,

upon a fact committed in another kingdom, so as the
cognizance of it belong to the jurisdiction of the
Court of Chivalry.

So, in the Courts of certain liberties in England,
where they proceed by the Law of Merchants, touching
contracts between merchant and merchant, beyond the
seas, the proof is by witnesses only : because in such
like cases, there is not of the neighbourhood a number
sufficient to make up a Jury of twelve men : as in
contracts and other cases arising within the kingdom
is usually done. In like manner if a deed, in which
witnesses are named, be brought into the Courts of
law, process shall go out against such witnesses, who,
together with a Jury shall enquire upon their oaths,
whether it be the deed of that party, whose it is
supposed to be. Wherefore, the law of England does
not call in question any other law which finds out the
-truth by witnesses, especially when the necessity of
the case so requires.

The Laws of England observe a like method, not

>nly in the cases already put, but in some others,

rhich it is not material now to enlarge upon : but

^it never decides a cause only by witnesses, when it can

fbe decided by a Jury of twelve men, the best and most

■effectual method for the trial of the truth ; and, in which

( respect, no other laws can compare with it. This

Proceeding is less liable to the hazard of bribery,

[subornation, or other sinister methods ; neither can

\this method of proceeding in any case miscarry for want

)/ evidence : what the witnesses give in upon oath

:annot but have its due effect : neither can a Jury be

)erjured, but that for such their crime they must

jxpect a very severe punishment, and the party thereby

laggrieved is, and will be entitled to his remedy.

These things are not transacted at the will and
[pleasure of strangers, or parties wholly unknown, but
[upon the oaths of honest, considerable and creditable

men, who value their character, who are neighbours
to the parties concerned, to whom there can be no
cause of challenge or distrust as touching the verdict
they shall give in.

Oh ! what detestable villanies often happen from
the method of proceedings by witnesses only. If a
man contract matrimony in a clandestine manner, and
afterwards before witnesses, betroth himself to another
woman. In this case the Contentious Court will oblige
him to consummate with this last woman ; and the
Penitential Court will adjudge him to cohabit with
the first, if he be duly required thereto ; and he will be
obliged to do penance every time he shall be informed
against for cohabiting with the other woman, to
whom he was so betrothed ; nay, though in both courts,
one and the same man be the Judge. May one not
say in the case before us, as it is written concerning
the Behemoth, (Job xl. 17.) that indeed it is very
intricate and perplexed. The person contracting shall
never afterwards cohabit with either of the women, or
with any other woman, without being prosecuted for
so doing. A mischief of this kind cannot possibly
happen in any case, according to the proceedings of
the Law of England, though a Behemoth himself were
solicitor in the cause. Are you not now convinced,
most excellent Prince, that the more objections you
raise against the Laws of England, the more amiable
and resplendent they appear.

CHAP. XXXIII.

The Prince asks the Reason why some of our Kings
have taken disgust at the Laws of England.

Prince. I am convinced that the Laws of England
eminently excel, beyond the laws of all other countries,
in the case you have been now endeavouring to

explain ; and yet I have heard that some of my
ancestors, kings of England, have been so far from
being pleased with those laws, that they have been
industrious to introduce, and make the Civil Laws a
part of the Constitution, in prejudice of the Common
Law ; this makes me wonder what they could intend
by such behaviour.

CHAP. XXXIV.

The Chancellor's Answer.

Chancellor. You would cease to wonder, my
Prince, if you would please seriously to consider the
nature and occasion of the attempt. I have already
given you to understand that there is a very noted
sentence, a favourite maxim, or rule in the Civil Law,
that. That which pleases the Prince has the effect of a
Law. The Laws of England admit of no such maxim,
or anything like it. A King of England does not bear
such a sway over his subjects, as a King merely, but in
a mixed political capacity : he is obliged by his
Coronation Oath to the observance of the laws, which
some of our kings have not been well able to digest,
because thereby they are deprived of that free exercise
of dominion over their subjects, in that full extensive
manner as those kings have, who preside and govern by
an absolute regal power ; who, in pursuance of the laws
of their respective kingdoms, in particular, the Civil
Law, and of the aforesaid maxim, govern their
subjects, change laws, enact new ones, inflict punish-
ments, and impose taxes, at their mere will and
pleasure, and determine suits at law in such manner,
when, and as they think fit.

For which reason your ancestors endeavoured to
shake off this political frame of government, in order to
exercise the same absolute regal dominion too over their

subjects, or rather to be at their full swing to act as
they list : not considering, that the power of both
kings is really, and in effect equal, as is set forth in
my aforesaid treatise, de Natura Legis Naturce, viz.
that it is not a restraint, but rather a liberty to govern
a people by the just regularity of a political govern-
ment, or rather right reason ; that it is the greatest
security both to king and people, and takes off no
inconsiderable part of his royal care.

That this may the better appear, you will please to
consult the experience you have had of both kinds of
government ; to begin with the regal, such as the
king of France exercises at present over his subjects ;
and, in the next place, you will please to consider the
effect of that regal political government which kings of
England exercise over their subjects.

CHAP. XXXV.

The Inconveniencies which happen in France by means
of the Absolute Regal Government.

You may remember, most worthy Prince, in what a
condition you observed the villages and towns of
France to be, during the time you sojourned there.
Though they were well supplied with all the fruits of
the earth, yet they were so much oppressed by the
king's troops, and their horses ; that you would scarce
be accommodated, in your travels, not even in the
great towns : where, as you were informed by the
inhabitants, the soldiers, though quartered in the same
village a month or two, yet they neither did nor would
pay any thing for themselves or horses ; and, what is
still worse, the inhabitants of the villages and towns
where they came, were forced to provide for them
gratis, wines, flesh, and whatever else they had

occasion for; and if they did not like what they
found, the inhabitants were obliged to supply them
with better from the neighbouring villages : upon any
non-compliance, the soldiers treated them at such a
barbarous rate, that they were quickly necessitated
to gratify them. When provisions, fuel and horse
meat fell short in one village, they marched away
full speed to the next ; wasting it in like manner.
They usurp and claim the same privilege and custom
not to pay a penny for necessaries, either for them-
selves or women (whom they always carry with them
in great numbers) such as shoes, stockings, and other
wearing apparel, even to the smallest trifle of a lace,
or point ; all the inhabitants, wherever the soldiers
quarter, are liable to this cruel oppressive treatment :
it is the same throughout all the villages and towns
in the kingdom, which are not walled. There is not
any the least village, but what is exposed to the
calamity, and once or twice in the year is sure to be
plundered in this vexatious manner.

Further, the king of France does not permit any
one to use salt, but what is bought of himself, at his
own arbitrary price : and, if any poor person would
rather choose to eat his meat without salt, than to
buy it at such an exorbitant dear rate ; he is notwith-
standing compellable to provide himself with salt,
upon the terms aforesaid, proportionably to what shall
be adjudged sufficient to subsist the number of persons
he has in family : besides all this, the inhabitants of
France give every 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 sale. And all the towns and boroughs
pay to the king yearly, great sums of money, which
are assessed upon them for the expences of his men at
arms. So that the king's troops, which are always
considerable, are subsisted and paid yearly by those

common people, who live in the villages, boroughs
and cities.

Another grievance is, every village constantly finds
and maintains two cross-bow-men at the least ; some
find more well arrayed in all their accoutrements, to
serve the king in his wars, as often as he pleaseth to
call them out ; which is frequently done. Without
any consideration had of these things, other very
heavy taxes are assessed yearly upon every village
within the kingdom for the king's service ; neither
is there ever any intermission or abatement of taxes.
Exposed to these and other calamities, the peasants
live in great hardship and misery. Their constant
drink is water, neither do they taste, throughout the
year, any other liquor; unless upon some extraordinary
times, or festival days. Their clothing consists of
frocks^ or little short jerkins made of canvass no
better than common sackcloth ; they do not wear
any woollens, except of the coarsest sort ; and that
only in the garment under their frocks ; nor do they
wear any trowse, but from the knees upward ; their
legs being exposed and naked. The women go
barefoot, except on holidays : they do not eat flesh,
unless it be the fat of bacon, and that in very small
quantities, with which they make a soup : of other
sorts, either boiled or roasted, they do not so much
as taste, unless it be of the inwards and offals of
sheep and bullocks, and the like, which are killed
for the use of the better sort of people, and the
merchants : for whom also quails, partridges, hares,
and the like, are reserved, upon pain of the gallies :
as for their poultry, the soldiers consume them, so
that scarce the eggs, slight as they are, are indulged
them by way of a dainty. And if it happen that a
man is observed to thrive in the world, and become
rich, he is presently assessed to the king's tax, pro-
portionably more than his poorer neighbours, whereby

he is soon reduced to a level with the rest. This,
or I am very much mistaken, is the present state and
condition of the peasantry of France.

The nobility and gentry are not so much burthened
with taxes. But if any one of them be impeached for
a state-crime, though by his known enemy, it is not
usual to convene him before the ordinary judge, but he
is very often examined in the king's own apartment,
or some such private place ; sometimes only by the
king's pursuivants and messengers : as soon as the
king, upon such information, shall adjudge him to be
guilty, he is never more heard of ; but immediately,
without any other formal process, the person so
accused and adjudged guilty is put into a sack, and
by night thrown into the river by the officers of the
provost-marshal, and there drowned : in which sum-
mary way, you have heard of more put to death, than
by any legal process. But still according to the Civil
Law, " what pleases the prince has the effect of a
law." Other things of a like irregular nature, or even
worse, are well known to you, during your abode in
France, and the adjacent countries ; acted in the most
detestable barbarous manner, under no colour or
pretext of law than what I have already declared-
To be particular would draw out our discourse into
too great a length.

Now it remains to consider what effect that political
mixed government, which prevails in England, has,
which some of your progenitors have endeavoured to
abrogate, and instead thereof to introduce the Civil
Lau) ; that, from the consideration of both, you may
certainly determine with yourself which is the more
eligible, since (as is above-mentioned) the philosopher
says, " that opposites laid one by the other, do more
certainly appear ; " or, as more to our present
argument, "happinesses by their contraries are best
illustrated."

CHAP. XXXVI.

The Comparative Advantages in England, where the
Government is of a mixed Nature, made up of the
Regal and Political.

In England no one takes up his abode in another
man's house, without leave of the owner first had :
unless it be in public inns; and there he is obliged to
discharge his reckoning, and make full satisfaction,
for what accommodations he has had, ere he be per-
mitted to depart. Neither is it lawful to take away
another man's goods without the consent of the
proprietor, or being liable to be called to an account
for it. No man is concluded, but that he may provide
himself with salt, and other necessaries for his family,
when, how and where he pleases. Indeed the king,
by his purveyors, may take for his own use necessaries
for his household, at a reasonable price, to be assessed
at the discretion of the constables of the place, whether
the owners will or not : but the king is obliged by the
laws to make present payment, or at a day to be fixed
by the great officers of the king's household. The
king cannot despoil the subject, without making
ample satisfaction for the same : He cannot by himself,
or his ministry, lay taxes, subsidies, or any imposition,
of what kind soever, upon the subject; he cannot alter
the laws, or make new ones, without the express con-
sent of the whole kingdom in Parliament assembled :
every inhabitant is at his liberty fully to use and
enjoy whatever his farm produce th, the fruits of the
earth, the increase of his flock, and the like : all
the improvements he makes, whether by his own
proper industry, or of those he retains in his service,
are his own to use and enjoy without the lett, inter-
ruption, or denial of any : if he be in any wise injured,
or oppressed, he shall have his amends and satisfaction

against the party offending : hence it is, that the
inhabitants are rich in gold, silver, and in all the
necessaries and conveniences of life. They drink no
water, unless at certain times, upon a religious score,
and by v^ay of doing penance. They are fed, in great
abundance, with all sorts of flesh and fish^ of which
they have plenty everywhere ; they are clothed
throughout in good woollens ; their bedding and
other furniture in their houses are of wool, and that
in great store : they are also well provided with all
other sorts of household goods and necessary imple-
ments for husbandry : every one, according to his
rank, hath all things which conduce to make life easy
and happy. They are not sued at law but before the
ordinary judge, where they are treated with mercy and
justice, according to the laws of the land ; neither are
they impleaded in point of property, or arraigned for
any capital crime, how heinous soever, but before
the king's judges, and according to the laws of the
land.

These are the advantages consequent from that
political mixed government which obtains in England :
from hence it is plain, what the effects of that law are
in practice, which some of your ancestors, kings of
England, have endeavoured to abrogate : the effects
of that other law are no less apparent, which they so
zealously endeavoured to introduce among us ; so that
you may easily distinguish them by their comparative
advantages ; what then could induce those kings to
endeavour such an alteration, but only ambition,
luxury, and impotent passion, which they preferred to
the good of the State. You will please to consider in
the next place, my good Prince, some other matters
which will follow to be treated of.

CHAP. XXXVII.

Concerning the Regal Government^ and the Political
Government.

Saint Thomas, in the book which he addresses
to the king of Cyprus (de regimine principum) says,
*^that a king is given for the sake of the kingdom,
and not a kingdom for the sake of the king.'' Con-
sequently all kingly power ought to be applied
for, and to center in the good of the Kingdom or
State : which, in effect, consists in the defence of the
subject from the incursions of other nations, and in the
protection of their lives and properties from injuries
and violence as to one another.

A king who cannot come up to this character, is to
be looked upon as weak : but if, through his own
passions, poverty, or want of economy, he be in so
distressed a condition, that he cannot keep his hands
off from seizing on his subjects' property ; by means
whereof he so impoverishes them, that their estates are
not sufficient to maintain both : in how much a more
impotent despicable condition may we justly reckon
such a prince to be, than if he were barely unable to
defend them against the injuries of others? Such a
prince, indeed, is not only to be called weak, but
weakness itself; and is far from being a proper head
of a free people, whilst he labours under such pressures
and obligations.

On the other hand, he may well be esteemed a free
and powerful prince, who can protect his subjects,
against a foreign force as against one another : their
properties are safe with respect to their neighbours
and fellow-citizens, not liable to the oppression or
depredation of any one : not even though the prince
himself should have passions and occasions of his
own to gratify : for who can be more powerful or

free than that prince who cannot only bring others
within due bounds, but can also get the better of his
own passions ? which that prince can, and always does,
who governs his people in the political way.

So that experience sufficiently shews you, my
Prince, that those ancestors of yours, who were
so much set upon abolishing the political form of
government, had they been able to have compassed
it, would not only have been disappointed of their
aim and wish of enlarging their power thereby ; but
would, by this means, have exposed both themselves

Imd the whole kingdom to far greater mischief and
nore eminent danger. Nevertheless, what we have
ihewn from the experience of the ill effects of a
^spotic government, which may seem to check and
essen the power of an absolute prince, do in reality
rather proceed from a want of due care, and from
isbehaviour, than from any defect in that law by
hich he governs. And therefore the regal power or
gnity itself is not hereby lessened : since the power,
'hether of an absolute prince, or of one limited by
s (as I have evidently shewn in the aforesaid
Weatise of the Law of Nature) is equal. But, that
the power of an absolute prince is attended with
luch more difficulty in the exercise of it, and with
less security both to king and people, the foregoing
ibservations do, I think, sufficiently demonstrate. So
•hat a wise prince would not wish to change the
Political form of government for an absolute : and
br the same reason it is, that St. Thomas is supposed
to wish, that all the kingdoms and nations of the
'orld were governed in the political way.

CHAP. XXXVIII.

The Prince desires the Chancellor to proceed to other
Cases wherein the Laws of England and the Civil
Laws disagree.

Prince. You will, I hope, excuse it, my Chancellor,
that while I have been proposing my doubts and
queries, I have obliged you to digress so far from the
main point. What you have explained by the way,
has been very instructive, though it may have a little
taken you off from your principal design ; I now
earnestly desire you, forthwith to proceed ; and, as
you at first set out and promised me, that you would
please to declare some other cases, in the decision
whereof the Laws of England, and the Civil Law of
Nations observe a different method of procedure.

CHAP. XXXIX.

Concerning the Legitimation of Children born
before Matrimony.

Chancellor. Sir ! In obedience to your request,
I will endeavour to lay before you some other cases,
in which the laws aforesaid observe a different deter-
mination : which is preferable I will not take uponj
me to say, but shall leave it to your own judgment.!
"The Civil Law" legitimates children bom before]
matrimony, as well as after, and qualifies them tol
succeed in the inheritance of the parents." The Lawj
of England does not admit children born before matri-
mony to take by heirship. It calls such an offspring]
natural, but not legitimate. In the case before us, thej
Civilians extol their law, because they say, that it i?
an encouragement to marriage, by which the sir!
is done away, and so the souls of both parties anl

preserved from damnation. They allege further, that
the presumption is, that such was the intention of the
parties, as it were, by way of contract, at the time of
committing the act ; the subsequent marriage demon-
strates as much. Moreover, the Church admits and
allows them for legitimate : these, I think, are the
chief arguments, by which they justify and defend the
Civil Law.

To this the learned in our Law reply, that the sin
of concubinage, in the case proposed, is not purged by
the subsequent marriage, though in some measure the
punishment of the parties offending may be mitigated.
They urge further, that the guilty in this case are the
less penitent for their offence, in proportion as they
find the laws more favourable to it, upon which con-
sideration they likewise become more apt to repeated
acts of this kind ; and so act in contradiction both
to the commands of God, and the ordinances of the
Church. So that this law not only shares in the guilt
of the offender by abetting such a practice, but is
quite beside the nature and definition of a good law,
** which (as has been already observed) is an holy
sanction commanding things which are honest, and
forbidding the contrary."

Now, the Civil Law, in the case before us, rather
prompts on the party to do things which are dishonest.
Nor is it a sufficient defence of this law, to say, that
the Church admits such issue for legitimates. Since
our holy mother the Church dispenses with many
things which she does not allow of to be done. So
the Apostle dissolved the restraint upon virgins, by
way of dispensation ; when, at the same time he
advised the contrary, and would rather that all men
were even as himself. And far be it that so good
a mother should deny her compassion to her sons,
whose case is so much the more deplorable, because
they often fall into this sin, being betrayed by that

encouragement which the Civil Law allows it : and
the subsequent marriage is a good argument to the
Church, of their being truly penitent for what is past,
and of their resolution to contain for the future.

The Law of England has a quite contrary effect :
It does not give any encouragement to such a criminal
action, neither does it screen the offenders, but lays a
restraint upon them, threatens and inflicts a punish-
ment, that they may not offend. The inclination is
predominant enough in itself, without any other
incitements, it rather wants a curb, the propensions to
lust are very importunate and constant : and mankind,
seeing they cannot be continued of and by themselves,
naturally desire to be perpetuated in their species,
which, without that, must be soon extinguished : every
living creature has an inclination to be assimilated to
the first cause, which is of a perpetual eternal dura-
tion : the sensation of contact, by which generation is
effected, is a greater gratification than the sense of
taste, which only preserves the individual.

Wherefore Noah, by way of punishment to his son,
who had discovered his father's nakedness, cursed
Canaan his grandson, and thereby aggravated his son
Ham*s punishment more, than if he himself had been
accursed : wherefore that law which punishes such an
offspring, affects the sin with a severer penalty, than
that which immediately affects the offender in his own
person : now, I must leave it to you to judge, how
truly and zealously the Law of England prosecutes a
criminal amour. It is not content only to condemn
the offspring to be illegitimate, but debars it from
succeeding to the patrimony of the parents. Is not
this a chaste law, a law of order, does it not more
effectually discourage this sin, than the Civil Law,
which remits the sin of fornication without exacting
any punishment at all ?

CHAP. XL.

The Reasons why Base-born Children are not in England
by the subsequent Marriage legitimated.

Besides, the Civil Law says, that a natural son
is the son of the people, concerning which a certain
poet,

Cui pater est populus, pater est sibi nuUus et omnis,
Cui pater est populus, non habet ipse patrem.

" He who has the people for his father seems to have
no father at all, or rather every one : he who has the
people for his father, has in reality no proper father."
Since such an offspring, when born, had no father, how
y any subsequent act he can have one, is not known
in nature ? A woman has by two several men two
sons ; one of the said men intermarries with her ;
which of the two sons is legitimated by such marriage?
Opinion may prevail, but reason cannot decide ; there
was a time when both of them past in estimation for
children of the people, or community ; when neither
knew nor had any other father : wherefore, it would
seem inconsistent and unreasonable, that a son born
afterwards of the same mother in lawful wedlock,
whose original is confessedly known, should be debarred
of his inheritance ; and that either of the other two
sons born out of marriage should take as heir :
especially in England, where the eldest son, lawfully
begotten, inherits to the lands : any indifferent person
would judge it no less unreasonable, if a base-born
child should have an equal share in the inheritance
with one who is lawfully begotten. And by the
l^^CimZ Law, the inheritance is divided amongst the
^^Bmale issue.

^^H St. Austin, in his book {de civitate dei) has it, that
^^HAbra/tam gave all that "he had unto Isaac, but unto
^^H the sons of the concubines which Abraham had, Abraham

gave gifts." His observation is, that thereby it seems
to be intimated that the inheritance of right does not
belong to a spurious issue, but only a competent living.
Thus St. Austin; and under the term (spurious) he
includes all such children as are illegitimate, or born
out of wedlock ; as the holy Scriptures do likewise,
which never give to any such the appellation of
bastard. You see St. Austin, nay, and Abraham too,
makes no small difference as to the succession of a
spurious or legitimate offspring.

Further, another Scripture sets a mark of infamy
upon all illegitimate children in the following meta-
phorical expressions ; " the multiplying brood of the
ungodly shall not thrive nor take deep rooting from
bastard-slips, nor lay any fast foundation." The
Church also does the same, by not admitting them
into Holy Orders ; or, if it dispenses with them thus
far ; yet, they are never permitted to enjoy any dignity
or pre-eminence in the Church. It is but fit and
reasonable therefore that human laws should deprive
such persons of the privilege of succession : the
Scriptures also, in point of birth, judge such inferior
to those who are begotten in lawful marriage. Gideon,
that mighty man of valour, is said to have had three-
score and ten sons of his body begotten ; for he had
many wives, and but one son by his concubine, and
yet this one son slew all his brethren, except Jotham,
the youngest, who hid himself.

More wickedness is found to have been in that one
bastard-slip, than in threescore and nine lawfully
begotten. It is an old saying, If a bastard be good, it
is mostly by accident, or special grace ; if wicked, it
is but his nature. An unlawful brood is thought to
derive a corruption and stain from the transgression of
the parent, without any concurrent fault of his own.
So all of us have contracted a very great corruption
from the sin of our first parents, though not of so

opprobrious a nature : the blemish with which bastards
are affected, is widely different from that of legitimate
children. The mutual culpable lust of the parents
[affects their offspring, which does not give itself such a
loose in the lawful chaste embraces of the matrimonial
life. The sin of fornicators is mutual, and in common;
and as it bears a near resemblance therefore with the
first sin, it leaves a worse impression on the issue than
that of any other sin which men commit in private
without any accomplice. So that a child so bom,
may rather be called the offspring of sin itself, than of
the guilty persons.

Wherefore the wisdom of Solomon^ distinguishing
between a spurious and a legitimate offspring, of the
latter says, " How beautiful is the offspring of the
chaste and nuptial bed ? The memory of it is im-
mortal, being acknowledged both by God and man."
Whereas the other is not so much as acknowledged
amongst men ; for which reason they are called the
children of the people, or community : and of these the
same book of Wisdom says, "children begotten of un-
lawful beds, are witnesses of wickedness against their
parents in their trial." For being asked about their
parents, they reveal their imperfections, as the wicked
son of Noah did his father's nakedness. It is therefore
thought that the man who was born blind, concerning
whom the Pharisee said, " Thou wast altogether born
in sins," that he was a bastard, and so, in that sense,
bom in sin: and when they add immediately, "and
dost thou teach us ? " They seem to intimate as if a
bastard were not qualified by nature, like the issue of
a lawful bed, either for knowledge, or for teaching
others. Therefore that law does not rightly determine,
which equals bastards with children lawfully begotten
in the succession to the inheritance of their parents,
when the Church judges them not duly qualified for
Orders, or fit to preside in God's inheritance. The

Scriptures likewise put a wide distinction between
them, as we have above observed : And nature itself
makes a difference in her gifts, by setting as it were a
natural mark or blemish on the natural children,
though secretly impressed upon the mind. Which
now of those two laws, in the case before you, do you
hold with and give the preference to ?

CHAP. XLI.

The Prince s Approbation of the Reasons given in the
foregoing Chapter.

Prince. Indeed I give the preference to that law
which does most effectually cast out sin, and establish
virtue. I am also of opinion, that such are least
entitled to the benefit of human laws, whom the Law
of God judges unworthy, and whom the Church
excludes from her orders and dignities, as being by
nature more prone to wickedness.

Chancellor. I think you judge in the case very
rightly. I will now recollect some other cases, wherein
the Civil and our Laws disagree.

CHAP. XLH.

Concerning the Rule of the Civil Law : Partus
semper sequitur Ventrem.

The Civil Laws decree that the issue always follows
the venter, that is, the condition of the mother : for
example, if a bond-woman be married to a free-man,
the children shall be bond. Again, if a bond-man
marrieth a free-woman the children shall be free: by
the laws of England "the issue does not follow the
condition of the mother, but always that of the father : "
so 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 beget none but bond-children.

Which law think you is more equal in its decision?
Is not that a cruel law, which, without any fault of
the party, adjudges the issue of the free-man to be
bond ; neither is that law deemed by some less cruel,
which adjudges the issue of a free-woman to be bond :
the Civilians say, that their laws give the best deter-
mination in the case ; for they say, " A good tree
cannot bring forth bad fruit, neither can a corrupt tree
bring forth good fruit." And it has the consent of all
laws, that every plant belongs to the soil where it is
planted : the child also has a more certain knowledge
of the mother who bore him, than of the father who
begot him.

To this the sages in our laws reply, that a child
lawfully begotten hath no more certain knowledge
of the one parent than of the other; for both laws,
however wide in other respects, agree in this, that he
is the father whom the marriage declares so to be. Is
it not more reasonable that the issue should follow the
condition of the father, than that of the mother, since
Adam, speaking of such as are joined in wedlock, says,
" And they two shall be one flesh : " which our Saviour,
in the Gospel, thus explains, *' they are no more twain
but one flesh." And forasmuch as the male compre-
hends the female, the whole flesh, so 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 themselves allow, that the woman
always shines by reflexion from her husband, whence
(C. Qui Professione se excusant L. nono L. fi.) the text
has it, " We advance women by giving them the titles
and honors of their husbands : " we honor them with
the sirnames of our families. We proceed and decree
for and against them in the Courts of law in the name

of the husband. We change their habitations : but in
case they afterwards marry a man of inferior rank,
they are deprived of their former honors, and follow
the condition, as well as habitation, of the latter
husband.

And since all the children, especially the sons, bear
the name of the father, and not of the mother, whence
can it be, that the son, in respect of his mother, should
lose his rank and follow her condition, when, at the
same time, he is known in law by the name of his
father who begot him : nay, the woman is distinguished
according to the rank and quality of her husband,
neither of which can suffer diminution, or be sullied
by any crime or base condition of the wife. That
law ought to be accounted cruel and unjust, which,
without any the least pretence or reason, leaves the
son in a base condition.

Again, as to the inheritance, which the father (a
free-man, lying under no imputation, crime or disability
in law, whereby forfeitures accrue) has, with great
care and industry, acquired for himself and family,
that in the case before us the inheritance should pass
into the possession of a stranger who took no pains in
the acquisition thereof, seems very unjust. Further,
the base condition of the child affects the father's name
with the same blemish.

Again, that must needs be judged to be an hard
and unjust law, which tends to increase the servitude,
and to lessen the liberty of mankind. For " human
nature is evermore an advocate for liberty.'' God
Almighty has declared himself the God of liberty:
this being the gift of God to man in his creation,
the other is introduced into the world by means of his
own sin and folly ; whence it is, that every thing in
nature is so desirous of liberty, as being a sort of
restitution to its primitive state. So that to go about
to lessen this, is to touch men in the tenderest point :

it is upon such considerations as these, that the Laws
of England, in all cases, declare in favour of liberty.
True it is, where the father is a bond-man, though
married to a free-woman, the child is, by our laws, in
the same state of bondage with the father ; nor is this
unreasonable or unjust : for a woman who has under-
valued herself by marrying a bond-man, is thereby
made one flesh with him. In consequence of the laws
above recited, she follows the condition of her husband,
and by her own voluntary act hath put herself under
subjection to him, having been before under no con-
straint of the law so to do. Those, who by act of law
enter themselves bond-men in the king's Courts, or sell
themselves into bondage without any compulsion are
in the same case. How then can the laws make that
son free, whom the mother, in the present instance,
has so brought forth in her state of subjection : for no
husband can ever be so much in subjection to his wife,
let her be of never so high a rank or quality, as this
woman hath made herself subject to her husband ;
whom, though a bond-man, she hath advanced to be
her lord, according to the sentence of God himself,
pronounced in Holy Scripture, " that every wife shall
be in subjection to her husband, and he shall rule
over her."

What the Civilians say concerning the fruit of a
good or corrupt tree, is more to our purpose than to
theirs ; since every wife is either bond or free, according
to the condition of her husband. And in whose soil
(pray) does the husband plant, if not his own, when
the wife is made one flesh with him ? What if he hath
grafted a slip of good kind upon a crab-stock, since
the tree is his property, is not the fruit still his fruit,
though it favour of the stock ? So the children begotten
of a woman are the husband's, whether the mother be
bond or free. Nevertheless, by the laws of England,
the lord of a bond-woman, who is married to a free-man.

without his consent first had and obtained, I say, in
this case, though the lord cannot get her divorced
a vinculo matrimonii (it being expressly said in the
Gospely " Whom God hath joined together let no man
put asunder.") Yet he shall recover against the free-
man all his damages which he hath sustained by reason
of the loss of his bond-woman, and of the service which
she owed him. This, I conceive, is the sum, substance
and manner of proceeding according to the laws of
England, in the case 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 most eligible?

CHAP. XLIII.

The Prince yields his Assent to the Chancellor, and
disapproves of the said Rule.

Prince. There is no pretence in reason to doubt
but that in this case the Laws of England excel the
Roman Imperial Laws : and, for my own part, I
always think that law most eligible, which shews
more favour than severity to the parties concerned in
it, and who are to be judged by it. For I remember
an excellent rule, which says, " that matters of hard-
ship are odious, and ought as much as possible to be
restrained, but favours are to be amplified, and ex-
tended to their full extent."

Chancellor. With good reason. I will propound
one case more, wherein the two laws differ, and then
conclude ; lest 1 prove tedious, whilst I expatiate upon
the variety of more cases, and the difference each law
observes in its decision ; and so my discourse would
be drawn out into such a length, as instead of enter-
taining, to disgust you.

CHAP. XLIV.

Concerning the Tuition of Orphans.

The Civil Laws commit the guardianship of orphans
to the next in blood, whether the relation be by the
father's or mother's side, that is, to every one as he
stands next in degree and order, to take by inheritance,
in case the orphan die. The reason of this law is, " no
one is presumed to take more care of, or to have a
greater regard for the orphan, than he who is next in
blood." The Laws of England determine quite con-
trary in the case. If an inheritance which is held in
socage descend to an orphan from any relation by the
father's side, such orphan shall not be in guardianship
to any of his father's relations ; but he shall be taken
care of by the relations of his mother's side.

Again, if an inheritance descend to him from any
relation by the mother's side : the orphan and such his
estate shall be under the care and direction of the next
akin by the father's side, and not otherwise, until he
come of age. The law says, " to commit the care of a
minor to him who is the next heir at law, is the same,
as delivering up a lamb to the care of a wolf, that is,
to be made a prey of." But if the inheritance be held
by knighfs-service, and not in socage, then, by the laws
of the land, the minor and his estate shall not be under
the management of his relations of either side ; but
both shall 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 supposed better qualified to
instruct him in deeds of arms, which, in virtue of his
tenure, he is obliged to perform for the lord of the fee,
than the lord himself, to whom such service is due
from his minor; and who is supposed to have a
superior interest 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 order to have the better service from
his tenant, will use his utmost care, and may well be
thought better qualified to instruct him in this way,
than his own relations, who, probably, in this respect
are presumed, for the most part, wholly ignorant and
unpractised ; especially, if his estate be but a small
one : what is or can be of greater use to a minor, who,
in consequence of his tenure is obliged to venture his
life and fortune, if required, in the service of the lord,
than to be trained up in military discipline, whilst he
is yet a minor. When he comes of full age, he cannot
decline the nature of his tenure, but is obliged to do
suit and service to his lord of whom he holds. Indeed,
it will be of no small advantage to the kingdom, that
the inhabitants be expert in arms ; for the philosopher
says, " every one behaves boldly in that way in which
he knows himself to excel." Is not this law then, in
your judgment, my Prince^ to be preferred to the other
already described ?

CHAP. XLV.

Concerning the Education of the young Nobility
during their Minority.

Prince. It is so ; for in the first instance (as you
observe) it provides with greater care and caution for
the preservation of an orphan, than the Civil Law
does : but I am much more pleased with the other
part of it ; because, by this means, our young nobility
and gentry cannot so easily degenerate ; but will
rather, in all likelihood, go beyond their ancestors
in probity and courage, and in every thing that is
virtuous and praiseworthy, being brought up in a
superior and more honorable family than that of their
parents : nay, though their fathers may have had the
good fortune to be educated in the like manner before,

yet the father's house, even with this advantage,
cannot be compared to that of the superior lord ; to
whom both, in their turns, have been in ward. Princes
of the realm, being under the same regulation, like as
other lords, who hold immediately from the king,
cannot so soon run into debaucheries, or a downright
ignorance : because, during the time of their minority,
they are brought up at the court. Upon which account
I cannot but highly commend the magnificence and
state of the king's palace, and I look on it as an
academy for the young nobility of the kingdom to
inure and imploy themselves in robust and manly
exercises, probity and a generous humanity. — All
which greatly tend to the reputation and prosperity
of the kingdom, both at home and abroad ; and make
a great part of its security against invaders, and render
it formidable both to its allies and enemies. This
advantage could not accrue to the state, if the young
nobility and gentry were to be brought up under the
care and inspection of their own friends and relations,
who are but persons of the same rank and quality with
themselves. As to the sons of the burghers, and other
freeholders in socage tenure, it cannot be prejudicial to
the publick good, if they be brought up among them-
selves, with persons of their own degree, and though
they be not bound to perform any military services;
as, to any one who considers aright, may very plainly
appear.

CHAP. XLVI.

Concerning open Theft, and private Theft.

Chancellor. There are some other cases in which
the Civil Law and the Common Law of England differ.
For instance : the Civil Laws, in case of a manifest
theft, where a person is taken in the fact, adjudge the

criminal to restore fourfold, and for a theft which is
not so manifest, where the proof is not so plain, the
judgment is twice the value of the thing stolen. But
the Laws of England^ in either case, punish the party
with death, provided the thing stolen, exceed the value
of twelve pence. So in the case of persons who have
been bondmen, and are set fyee, if afterwards they mis-
behave, and prove ungrateful, the Civil Laws adjudge
them into slavery again. But, by the Laws of England ;
he wlio is once made free, is always so, let his behaviour
afterwards be what it will. Other cases there are not
a few, of this and the like kind, which, for brevity's
sake, I pass over. In the two cases now propounded,
I forbear to expatiate, or insist upon the superior
excellence of the Laws of England : the properties
of each law do not require such a nice examination :
besides, I doubt not, your own good natural genius
sufficiently distinguishes between them.

CHAP. XLVIL

The Prince passes on to an Enquiry why the Laws of
England are not taught in our Universities, and
why there are not Degrees conferred on the Common
Lawyers, as is usual in the other Professions.

Prince. I think indeed that it requires no great
labour or study, to determine these two points. For
though in England felons of all sorts are every where
punished with death ; yet they still go on in defiance
of all laws to the contrary : and, how much less
would they abstain, if only a gentler punishment were
threatened and inflicted ? As for those who have
obtained their freedom, it would be hard if they should
always live under the lash, as it were ; and, in fear of
being again reduced to a state of slavery ; especially
upon the pretence or colour of ingratitude, since pre-

tences of this kind could never be wanting ; the several
instances and species of ingratitude being innumerable.
" Human nature^ in case of liberty, demands greater
favours than is usual in other cases.'' But, my good
Chancellor J not to enter into the disquisition of any
more cases of this sort, I beg you to inform me why
the Laws of England, which are so useful, so beneficial
and desirable, are not taught in our Universities, as
well as the Civil and Canon Laws, and why the degrees
of Bachelor and Doctor are not conferred upon the
Common Lawyers, as is usually bestowed on those who
:e educated in other parts of learning.

CHAP. XLVIIL

The Chancellor s Answer.

Chancellor. In the Universities of England the

iences are taught only in the Latin tongue, whereas

le Laws of England are writ in, and made up of,

iree several languages, English, French and Latin.

Inglish, as the Common Law has mostly prevailed, and

>een used among them ; a great part of it being

lerived down from the old inhabitants, the Angles.

'rench, because the Normans upon the coming in of

Villiam, called the Conqueror, and getting possession

►f the kingdom, would not permit our lawyers to

)lead but in that language which they themselves

:new, and which the advocates of France use in their

)leadings, and in their Parliaments.

In like manner the Norman-French, after their
^oming into England, would not pass any accounts
if their revenues, save in their own native language,
ist they should be imposed upon : even in their
exercises and diversions, as hunting, dice, tennis, &c.
ley observed the same method : whence it has
lappened, that the English, from such their frequent

intercourse with the French have given in to the same
custom ; and to this very day, in their diversions, and
their accounts, they speak French : in the Courts of
Justice they formerly used to plead in French, till in
pursuance of a Laiv to that purpose that custom was
somewhat restrained, but not hitherto quite disused ;
first, by reason of certain law terms, which the pleaders
express more aptly in French than in English : in the
next place, because Declarations upon Original Writs
cannot be formed so properly and agreeably to the
nature of those Writs as in French, in which language
the forms of such Declarations are learned and practised.
Again, all pleadings, arguments and resolutions, which
pass in the King's Courts are digested into books for
the information of the young students, and are reported
in the French tongue. Many Acts of Parliament are
penned in French, from whence it comes to pass that
the modern French is not the same with that used by
our lawyers in the Courts of Law, but is much altered
and depraved by common use : which does not happen
to the Law-French used in England, because it is
oftener writ than spoken : as to the Latin, all Original
and Judicial Writs, all Records in the Kings Courts of
Justice, and some Acts of Parliament are penned in
that language.

Wherefore the Laws of England being learned and
practised in those three several languages, they cannot
be so well studied in our Universities, where the Latin
is mostly in use : but, they are studied in a publick
manner and place, much more commodious and proper
for the purpose, than in any University. It is situated
near the King's Palace at Westminster, where the
Courts of Law are held, and in which the Law-
Proceedings are pleaded and argued, and the resolutions
of the Court, upon cases which arise, are given by the
Judges, men of gravity and years, well read and
practised in the laws, and honoured with a degre^

peculiar to them. Here, in Term-Time, the students
of the law attend in great numbers, as it were to
public schools, and are there instructed in all sorts of
Law-Learning, and in the practice of the Courts : the
situation of the place, where they reside and study, is
between Westminster and the city of London, which,
as to all necessaries and conveniences of life is the best
supplied of any city or town in the kingdom : the
place of study is not in the heart of the city itself,
where the great confluence and multitude of the
inhabitants might disturb them in their studies ; but
[in a private place, separate and distinct by itself, in
[the suburbs, near to the Courts of Justice aforesaid,
lat the students, at their leisure, may daily and duly
tttend, with the greatest ease and convenience.

CHAP. XLIX.

\The Disposition of the General Study of the Laws of
England. Of the Inns of Chancery, and the Inns of
Court, and that they exceed in Number any of the
Foreign Universities.

But, my Prince, that the method and form of the
study of the law may the better appear, I will proceed
and describe it to you in the best manner I can. There
belong to it ten lesser inns, and sometimes more, which
are called the Inns of Chancery : in each of which
there are an hundred students at the least ; and, in
some of them, a far greater number, though not con-
stantly residing. The students are, for the most part,
young men ; here they study the nature of Original
and Judicial Writs, which are the very first principles
of the law : after they have made some progress here,
and are more advanced in years, they are admitted
into the Inns of Court, properly so called : of these
there are four in number. In that which is the least

frequented, there are about two hundred students. In
these greater inns a student cannot well be maintained
under eight and twenty pounds a year : and, if he have
a servant to wait on him (as for the most part they
have) the expence is proportionably more : for this
reason, the students are sons to persons of quality ;
those of an inferior rank not being able to bear the
expences of maintaining and educating their children
in this way. As to the merchants, they seldom care to
lessen their stock in trade by being at such large
yearly expences. So that there is scarce to be found,
throughout the kingdom, an eminent lawyer, who is
not a gentleman by birth and fortune ; consequently
they have a greater regard for their character and
honour than those who are bred in another way.

There is both in the Inns of Court, and the Inns of
Chancery, a sort of an Academy, or Gymnasium, fit for
persons of their station ; where they learn singing, and
all kinds of music, dancing and such other accomplish-
ments and diversions (which are called Revels) as
are suitable to their quality, and such as are usually
practised at Court. At other times, out of term, the
greater part apply themselves to the study of the law.
Upon festival days, and after the offices of the church
are over, they employ themselves in the study of sacred
and prophane history : here every thing which is good
and virtuous is to be learned : all vice is discouraged
and banished. So that knights, barons, and the
greatest nobility of the kingdom, often place their
children in those Inns of Court ; not so much to
make the laws their study, much less to live by the
profession (having large patrimonies of their own) but
to form their manners and to preserve them from the
contagion of vice.

The discipline is so excellent, that there is scarce
ever known to be any picques or differences, any
bickerings or disturbances amongst them. The only

way they have of punishing delinquents, is by ex-
pelling them the society : which punishment they
dread more than criminals do imprisonment and
irons : for he who is expelled out of one society, is
never taken in by any of the other. Whence it
happens, that there is a constant harmony amongst
them, the greatest friendship and a general freedom of
conversation.

I need not be particular in describing the manner

and method how the laws are studied in those places,

since your Highness is never like to be a student there.

iBut, I may say in the general, that it is pleasant,

PBxcellently well adapted for proficiency, and every

'ay worthy of your esteem and encouragement. One

ling more I will beg leave to observe, viz. that

leither at Orleans, where both the Canon and Civil

Mws are professed and studied ; and whither students

resort from all parts ; neither at Angiers, Caen, nor

my other University in France (Paris excepted) are

lere so many students, who have past their minority,

in our Inns of Court, where the natives only are

idmitted.

CHAP. L.

)/ the State, Degree and Creation of a Serjeant at Law.

But, my Prince, since you are so desirous to know,

therefore, in the Laws of England, the degrees of
iachelor and Doctor are not conferred, as in the pro-

ssions of the Canon and Civil Law in our Universities ;

would give you to understand, that though in our
^nns of Court there be no degrees which bear those
titles ; yet there is in them conferred a degree, or
rather an Honorary Estate, no less celebrated and

>lemn than that of Doctor, which is called the degree

of a Serjeant at Law, it is conferred in the following
manner.

The Lord Chief Justice of the Common Pleas, by
and with the advice and consent of all the Judges, is
wont to pitch upon, as often as he sees fitting, seven
or eight of the discreeter persons, such as have made
the greatest proficiency in the general study of the
laws, and whom they judge best qualified. The
manner is, to deliver in their names in writing to the
Lord High Chancellor of England; who, in virtue of
the Kings Writ, shall forthwith command every one
of the persons so pitched upon, that he be before the
King, at a day certain, to take upon him the state and
degree of a Serjeant at Law, under a great penalty, in
every one of the said Writs specified and limited.

At which day, the parties summoned and appear-
ing, each of them shall be sworn upon the holy Gospels,
that he will be ready, at a further day and place to be
appointed, to take upon him the state and degree of a
Serjeant at Law, and that he shall, at the same time,
give gold, as, according to the custom of the realm,
has in such cases been used and accustomed to be
done. How each is to behave and demean himself,
the particulars of the ceremony, and manner how these
estates and degrees are to be conferred and received, I
forbear to insert ; it will take up a larger description
than consists with such a succinct discourse : besides,
at other times, I have talked it over to you in our
common conversation.

But I desire that you should know, that, at the
time and place appointed, those who are so chosen,
hold a sumptuous feast, like that at a Coronation,
which is to continue for seven days together : neither
shall any one of the new -created Serjeants be at a less
expence, suitable to the solemnity of his creation, than
two hundred and sixty pounds, and upwards, whereby
the expences in the whole, which the eight will be at,

will exceed three thousand two hundred marks. — To
make up which, one article is, every one shall make
presents of gold rings to the value, in the whole, of
forty pounds (at the least) English money.

I very well remember, when I took upon me the
state and degree of a Serjeant at Law, that my bill for
gold rings came to fifty pounds. Each Serjeant, at the
time of his creation, gives to every Prince of the Blood,
to every Duke, and to each Archbishop, who shall be
present at the solemnity, to the Lord High Chancellor,
and to the Treasurer of England; to each a ring of
the value of twenty-six vshillings and eight pence ; to
every Earl and Bishop, to the Keeper of the Privy Seal,
to each Chief Justice, to the Chief Baron of the King's
Exchequer, a ring worth twenty shillings ; and to
every other Lord of Parliament, to every Abbot and
to every Prelate of distinction, to every worshipful
Knight, then and there present, to the Master of the
Rolls, and to every Justice, a ring to the value of
one mark ; to each Baron of the Exchequer, to the
Chamberlains, and to all the great men at Court then
in waiting on the King, rings of a less value, in pro-
portion to their rank and quality : so that there will
not be the meanest clerk, especially in the Court of
Common Pleas, but that he will receive a ring con-
venient for his degree. Besides, they usually make
presents of rings to several of their friends and ac-
quaintance.

They give also liveries of cloth, of the same piece
and colour, which are distributed in great quantities,
not only to their menial servants, but to several others,
their friends and acquaintance, who attended and
waited on the solemnity of their creation ; wherefore,
though in the Universities, they who are advanced
to the degree of Doctors are at no small expence at
their creation, in giving round caps, and other con-
siderable presents : yet they do not give any gold, or

presents of like value ; neither are at any expences in
proportion with a Serjeant at Law.

There is not, in any other kingdom or state, any
particular degree conferred on the practisers of the law
as such; unless it be in the kingdom of England,
Neither does it happen, that in any other country, an
Advocate enriches himself so much by his practice as a
Serjeant at Law. No one, be he never so well read
and practised in the laws, can be made a Judge in the
Courts of Kings Bench, or the Common PleaSy which
are the supreme ordinary courts of the kingdom, unless
he be first called to be a Serjeant at Law : neither is
any one, beside a Serjeant, permitted to plead in the
Court of Common Pleas, where all real actions are
pleaded : wherefore, to this day, no one hath been
advanced to the state and degree of a Serjeant at Law,
till he hath been first a Student, and a Barrister, full
sixteen years : every Serjeant wears in Court a white
silk coif, which is a badge that they are graduates in
law, and is the chief ensign of habit with which
Serjeants at Law are distinguished at their creation.
Neither shall a Judge, or a Serjeant at Law, take ofP
the said coif though he be in the Royal Presence and
talking with the King's Majesty. So that you will
easily believe, most excellent Prince, that those laws
which are so honoured and distinguished beyond the
Civil Laws, or those of any other kingdom whatsoever,
and the profession whereof is attended with so much
solemnity and magnificence, are in themselves exceed-
ing valuable, excellent and sublime, full of knowledge,
equity and wisdom.

CHAP. LI.

Of the Judges of the Courts in Westminster- Hall, the
Manner of their Creation^ Habit and Employment.

That you may likewise know the estate of tlie
Judges, as well as of the Serjeants at Law, I will,
in the best manner I can, lay before you the method
of their appointment, creation, and the nature of their
office. There are usually in the Court of Common
Pleas five Judges, six at the most ; in the Court of
King's Bench four, and sometimes five : when any one
of them dies, resigns, or is superseded, the King, with
the advice of his council, makes choice of one of the
Serjeants at Law, whom he constitutes a Judge, by his
Letters Patents, in the room of the Judge so deceased,
resigning or superseded : which done, the Lord High
Chancellor of England shall come into the Court where
such vacancy is, bringing in his hand the said Letters
Patents; when sitting on the bench, together with the
Judges of the Court, he introduces the Serjeant who is
so appointed to be a Judge ; to whom, in open Court,
he shall notify the King's pleasure concerning his
succession to the vacant office, and shall cause to be
read in publick the said Letters Patents : after which,
the Master of the Rolls shall read to him the oath of
office ; when he is duly sworn into his said office, the
Chancellor shall give into his hands the Kings Letters
Patents, and the Lord Chief Justice of the Court shall
assign him his place where he is to sit, and makes
him sit down in it.

But you must know, my Prince, that the Judge,
amongst other parts of his oath, is to swear, that
he shall do equal law and execution of right
to all the King's subjects, rich and poor, without
having regard to any person. Neither shall he
delay any person of common right, for the letters of

the King, or of any other person, nor for any other
cause, though the King by his express directions,
or personal commands, should endeavour to in-
fluence and persuade the contrary. He shall also
swear, that he shall not take by himself, or by
any other, privily, nor apart, any gift or reward
of gold, or of silver, nor of any other thing, the
which might turn him to profit, unless it be meat
or drink, and that of little value, of any man that
shall have any plea, or process, depending before
him, and that he shall take no fees, as long as he
be Justice, nor robe of any person, great or small,
in any case, but of the King himself.

You are to know moreover, that the Judge so
created is not to make any solemn entertainment, or
be at any extraordinary expence upon his accession
to his office and dignity ; because it is no degree in
law, but only an office and a branch of magistracy,
determinable on the King's good pleasure. How-
ever, from thenceforth, he changes his habit in
some few particulars, but not in all : for when
only a Serjeant at Law, he is clothed in a long
robe, not unlike the sacerdotal habit, with a furred
cape about his shoulders, and an hood over it, with
two labels or tippets : such as the Doctors of Law
use in some Universities, with a coif, as is above
described. But after he is made a Judge, instead
of the hood he shall be habited with a cloak,
fastened upon his right shoulder ; he still retains
the other ornaments of a Serjeant, with this ex-
ception, that a Judge shall not use 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 sort of habit, when
you come in power, I could wish your Highness would
make a little more ornamental, in honour of the laws,
and also of your Government.

You are to know further, that the Judges of England
do not sit in the Kings Courts above three hours in the
day, that is, from eight in the morning till eleven. The
Courts are not open in the afternoon. The suiters of the
Court betake themselves to the pervise, and other
places, to advise with the Serjeants at Law, and other
their counsel, about their affairs. The Judges when
they have taken their refreshments spend the rest of the
day in the study of the laws, reading of the Holy
Scriptures, and other innocent amusements, at their
pleasure : it seems rather a life of contemplation than of
much action : their time is spent in this manner, free
from care and worldly avocations. Nor was it ever
found that any of them has been corrupted with gifts,
or bribes. And it has been observed, as an especial
dispensation of Providence, that they have been happy
in leaving behind them immediate descendants in a
right line. " Thus is the man blessed that feareth the
Lord."

And I think it is no less a peculiar blessing, that
from amongst the Judges and their offspring, more
Peers and great men of the realm have risen, than
from any other profession or estate of men whatsoever
who have rendered themselves wealthy, illustrious and
noble by their own application, parts and industry.
Although the merchants are more in number by some
thousands ; and some of them excel in riches all the
Judges put together. This can never be ascribed to
mere chance or fortune, which is nothing ; but ought
to be resolved (I think) into the peculiar blessing of
Almighty God, who, by his Prophet, hath declared,
that " the generation of the upright shall be blessed."
And elsewhere the Prophet, speaking of the righteous,
says, " their children shall be blessed." Wherefore,
my Prince, be a lover of Justice, which maketh rich
and honourable : which perpetuates the generation of
those who love her : in order to this, be a zealous lover

of the Law, which is the parent of Justice, that it may
be said, and verified of you, which is written of the
righteous, " Their seed shall endure for ever."

CHAP. LII.

The Prince starts an Objection with Respect to the
Delays in Law- Proceedings.

Prince. There remains but one thing, my
Chancellor, to be cleared up, which makes me hesitate,
and gives me disgust ; if you can satisfy my doubts
in this particular, I will cease to importune you with
any more queries. It is objected, that the Laws of
England admit of great delays in the course of their
proceedings, beyond what the laws of any other country
allow of : this is not only an obstruction to Justice but
often an insupportable expence to the parties who are
at law ; especially in such actions where the Demandant
is not entitled to his damages.

CHAP. LHI.

The Chancellor s Answer.

Chancellor. In personal actions, which do not arise
within the cities and trading towns (where they pro-
ceed according to usages and liberties of their own)
the proceedings are in the ordinary way. Though
they admit of great delays, yet they are not so excessive.
Indeed in cities and towns, especially when the necessity
of the case so requires, the process is speedy, as it is
likewise in other parts of the world. But neither yet
are the proceedings hurried on too fast (as it sometimes
happens in other countries) by means whereof one or
other of the parties is a sufferer.

In real actions, almost every where, the process
goes on slow and tedious ; but in England it is more
expeditious. There are in France, in the Supreme
Court of Parliament, some causes which have been
depending upwards of thirty years. I myself know a
case of appeal prosecuted in the said Court, which has
been depending now these ten years, and it is likely
will be so for ten years more before it can be decided.
While lately at Paris, my host shewed me his process
in writing, which had been before the Court of Parlia-
ment for eight years, for four French Sols rent, which,
of our money, makes but eight pence, and he had no
prospect of obtaining judgment in less than eight years
more. I have known other cases of the same nature :
and for what appears to me, the Laws of England do
not admit of so great delays as the Laws of France.
But it is really necessary there should be delays in
legal proceedings, provided they be not too dilatory
and tedious. By these means the parties, in particular
the party prosecuted, is better provided with his
proper defence, and advice of counsel, which otherwise
neither of them could be, either to prosecute or defend.
" Judgment is never so safe when the process is
hurried on."

I remember once at an assizes and gaol-delivery at
Salisbury, that I saw a woman indicted for the death
of her husband, within the year : she was found guilty,
and burnt for the same : in this case the Judge of
assize, after the whole proceedings before him were
over, might have respited the execution of the woman,
even after the expiration of the year. At a subsequent
assizes I saw a servant of the man who was so killed,
tried and convicted before the same Judge for the
same murder : who made an ample public confession
that he was the only person who was guilty of the
said fact, and that his mistress, 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 case of his poor mistress, upon account
of her innocence, and her being in no wise privy to her
husband's death.

The fact being thus, how may we suppose the
Judge to be affected with a sense of conscience and
remorse for being so hasty in awarding judgment of
execution, when it was in his power to have stayed,
for some time, further process against her : he often
owned to me, with concern, that he should never be
able to satisfy it to his conscience for such his pre-
cipitate behaviour. Deliberation often brings judgment
to maturity, which seldom or never happens where the
proceedings are too much hurried on. Wherefore the
Laws of England admit of Essoins, a sort of practice
not known in the laws of other countries. Are not the
Vouchings to Warranty of some use ? The same may
be said of the Aids of those to whom the reversion of
lands belongs, who bring the title in question, and
who have in their custody the evidences to make out
the title of the lands. The same may be said of
Coparcenors, who are to restore in proportion, if the
estate allotted to one of them should be evicted : and
yet these 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 such delays and imparlances as are
frivolous and vexatious. And if, at any time, delays
happen in pleading, which are found to be mischievous
and inconvenient, they may be abolished, or reformed,
in every parliament ; nay, and all other laws used in
England, where they do not answer the intention, or
labour under any defect, may be corrected and amended
in Parliament.

So that all the Laws of England, you will conclude
from what has been said, must needs be very good,
either in fact or possibility. They are either such

already, or are easily capable of being made such.
And to this the kings of England are obliged, in virtue
of a solemn oath taken at their coronation, as often as
the necessity or equity of the case shall so require.

CHAP. LIV.

Conclusion.

Prince. I am perfectly convinced from the whole
tenor of your discourse, that the Laws of England are
not only good, but the best of laws for the particular
Constitution of England. And if at any time some of
them want amendment, it may be easily done by
application to, and in the way of Parliament : so that
the kingdom either really is, or is easily capable of
being governed by the best of laws : and I am of
opinion that the points you have advanced in this
discourse, and the just encomium you have given our
laws, may be of some use to those who shall be here-
after kings of England : since no king can govern with
pleasure by such laws as he is not pleased with, or
does not rightly apprehend. " The unfitness of a tool
disgusts the mechanic : and the bluntness of the lance
or spear makes a dastardly soldier."

But as a soldier is animated to the battle when his
arms are good, and himself expert in using them,
according to Vegetius, who says, " that knowledge and
experience in war breed and beget courage : and no
one is afraid to do what he knows he can do well."
So a king is animated and encouraged to do justice,
when the laws, by which it is administered, are reason-
able and just, and he has a sufficient knowledge of and
experience in them. A general knowledge is sufficient
for him, leaving it to his Judges to have a more exact
and a more profound skill in them. So Vincentius

Beluacensis, in his book of Moral Institution of Princes^
says, " that every Prince ought to have a general
knowledge of the Holy Scriptures," which say, " that
vain are all they in whom there is not the knowledge
of God the Most High : " and it is written in the
ProverbSy " let knowledge be in the lips of the king,
and his mouth shall not err in judgment."

Yet a Prince is not obliged to so critical an under-
standing of the Scriptures ; such as may become a
Professor in Divinity ; a general insight and acquaint-
ance with them, as with the laws, is all that is necessary
and required of him. Such had Charlemaine ; such
had Lewis his son ; such had Robert, sometime king of
France, and who w^as author of this conclusion {^^ Sancti
spiritus adsit Nobis Gratia'') and many others, as the
said Vincentius, in the 15th chapter of the same book,
evidently shews. Wherefore the doctors of the laws
do say, that " an emperor carries all his laws in the
cabinet of his own breast." Not that he really and
actually knows all the laws, but as he apprehends the
principles of them, their method and nature, he may
properly enough be said to understand them all.
Moreover, he has it in his power to alter or abrogate
them : so that all the laws are in him potentially, as
Eve was in Adam before she was formed. But since,
my good Chancellor, you have now performed what you
undertook at first, and have fully persuaded me to
apply myself to the study of the laws of my country, I
will no longer detain you on this subject.

But, I now earnestly desire, that you will proceed,
as you have formerly begun with it, to instruct me
in the principles, method and nature of the Law of
England : which law, I am resolved, shall be ever
dear to me, preferably to all other laws in the world,
which it as far surpasses, as the morning star exceeds
the other stars in glory and brightness. Since the
intention is answered wherewith you were moved to

this conference : time and reason require that we put
an end to it. Rendering all due thanks and praise to
Him who enabled us to begin, to carry on and finish
it ; even Alpha and Omega, the beginning and the end,
the first and the last ; and " let every thing that hath
breath praise the Lord." Amen.

INDEX

THE PRINCIPAL MATTERS TREATED OF
IN THIS WORK.

Absolute Government, 17, 62.

Admiralty, jurisdiction and procedure of the Court, 62.

A-ttaint of Jurors, 42.

Bastardy, early opinions in England respecting, 67.

Boroughs, 37.

Brute and the Trojans, account of, 22.

Challenges of Jurors, 39, 49.
Chivalry, Court of, 53.

Guardianship in, 76.

Cities, 37.

Civil Law, Guardianship, 75.

Legitimation, 64.

Theft, 77.

Slavery, 70.

Trial, 30, 36.

Constitution English, History of, 22.
Coronation, the Ceremony and Oath, 55.
Counties, Division of, 36.

Delays in Law, 90, 91.

Descent, ancient rule of with respect to the half-blood, 10.

Education, Military in England, 77.

• of Princes, 12, 15.

England, its commendation and commodities, 47.

98 INDEX.

England, comparative state of Liberty with other countries,

54, 55, 60.
English, Manners of in former times, 60.
Esquire, 48.
Essoins, 92.

France, Government of, and condition of the inhabitants in, 56.

Frankleyne, 48.

French Language in England, 79.

Fringe, his Case, 32.

Government, origin and formation of, 19, 21, 25.
Guardianship, law of, 75.

Hamlets, division of, 37.
Hundreds, 37, 40.

Inns and Innkeepers, law respecting in the time of Henry VI. j

60.
Inns of Court, History of, 81.

Studies in, 81.

their Masques and Revels, 82.

Judges, Oath of, 87.

Robes, 88.

Character of, 89.

Jury, Trial by, 30, 38, 41, 44.

King of England, his power, and its limits, 17, 60.

Interference of, with the Administration of

Justice, 16.

Coronation Oath of, 55.

Knights, 48.

Law, Definitions of, 5.

of God, 50.

of Nature, 26.

of Merchants, 53.

Law of England, sources and history of, 26.

INDEX. 99

Law Proceedings, Language of, 80.

Lawyers, Studies of in former times, 81.

Lewis XI. of France, his despotic government, 56.

Lex Regia, 17, 55.

Liberty, favoured by the Law of England, 70.

Limited Monarchy, 17, 60.

Maxims of the English Law, 14.
Military Exercises and Education, 77.
Murder, remarkable case of, 91.

Norman-French Language, 79.

Oath, Coronation, 55.
Judges', 87.

Panel, 39.

Parliament, History and Constitution of, 28.

Partus sequitur ventrem, 70.

Parvyse, 89.

Pastoral habits of the English in former times, 47.

Purveyance, 60.

Rack, 32.

Ranks in England, 48.

Salt Gabelle, in France, 57.

Scotland, feudal subjection to the English Crown, 22.

Serjeants at Law, antiquities respecting, 83.

Sheriff, office and duties of, 37, 38.

Slavery, 70.

Statutes, how made in England, 27.

Taxation arbitrary, history and illegality of, 17, 60.

Temple, description of in time of Henry VI., 81.

Theft, 77.

Theocracy of the Jews, 18.

Torture, Practice of, 32.

100 INDEX.

Trial, mode of proceeding in Civil Matters, 40.
Trials in Criminal Matters, 44.

Universities, Education of Lawyers at, 79, 80.

"Verdict, 44.

Vills, division of, 37.

Visne, 39, 41, 46.

Wapentakes, division of, 37.

Wards, 75, 76.

Witnesses to a deed, joined with the Jury, 53.

Writs, History of, 81.

Yeoman, 48.

The Eastern Press, Ltd., London and Reading.

NOV 151976

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UNIVERSITY OF TORONTO LIBRARY

K Fortescue, (Sir) John

Sir John Fortescue'
F7383S5 Coinmendation of the laws
England

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