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Full text of "Sir John Fortescue's Commendation of the laws of England; the translation into English of "De laudibus legum Angliae""

SIR JORJi FORTESOTJE'S 
COMMENDATION 

OF THE / 

LAWS OF ENGLAND 



THE TRANSLATION INTO ENGLISH 

OF 

"DE LAUDIBUS LEGUM ANGLIJE" 



BY 

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. 

26 



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 



IX 



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 



XI 



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 



XV 



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. 



I 



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 



3 

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 



8 

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 



9 

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- 



L 



10 

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, 



11 

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.) 



12 



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 



13 

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 



14 

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- 



15 

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, 

3 



16 

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 



I 



17 

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 



18 

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. 



19 



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 



E 



20 

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. 



21 



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. 



22 

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, 



23 

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 



24 

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, 



25 

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. 



27 

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 



28 

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. 



I 



29 



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 



30 

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- 



31 

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- 

4 



■k 



32 

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. 



33 

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- 
! 



34 

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 



35 

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 



36 

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. 



37 

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 



88 

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 



I 



r 



39 

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 



40 

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. 



41 



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 



42 

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 



43 

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. 



44 



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. 



45 

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 



46 

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. 



47 



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 : 

6 



Ik 



48 

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 



49 

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. 



c 



50 



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. 

M 

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." 



61 

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 



52 

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, 



53 

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 



64 

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 



55 

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 



66 

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 



57 

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 



68 

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 



69 

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." 



60 



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 



I 

I 



61 

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. 



62 



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 



63 

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. 



64 



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 



65 

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 



66 

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 ? 



67 



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 



68 

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 



69 



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 



fl 



70 

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 



71 

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 



72 

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 : 



73 

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. 



74 

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. 



75 



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. 



76 

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, 



i 



77 

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 



78 

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- 



79 

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 

7 



80 

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^ 



I 



81 

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 



82 

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 



I 



83 

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 



84 

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, 



85 

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 



86 

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. 



87 



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 



88 

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. 



89 

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 



90 

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. 



91 

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 



92 

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 



94 

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 

OF 

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. 



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F7383S5 Coinmendation of the laws 
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