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De Laudibus Legum Anglic FORTESCUE DE LAUDIBUS LEGUM ANGLIiE. \ Digitized by the Internet Archive in 2007 with funding from Microsoft Corporation http://www.archive.org/details/delaudibuslegumaOOfortuoft FORTESCUE DE LAUDIBUS LEGUM ANGLIC. THE TRANSLATION INTO ENGLISH Published a.d. MDCCLXXV. AND THE ORIGINAL LATIN TEXT. WITH NOTES. By A. AMOS, Esq. op Lincoln's inn, barrister at law, and late fellow of trinity college, cambridge. CAMBRIDGE: Printed by J. Smith, Printer to the University; FOR JOSEPH BUTTERWORTH & SON, LONDON; J. COOKE, ORMOND QUAY, DUBLIN; JT. CLARK, PARLIAMENT SQUARE, EDINBURGH; AND J. DEIGHTON & SONS, CAMBRIDGE. 1825 m TO THE REVEREND THE MASTER and THE FELLOWS OF TRINITY COLLEGE, CAMBRIDGE: —0- Gentlemen, I have presumed to inscribe this Work to you, which I have prepared during my residence in your College, in the intervals of relaxation from my profession that have been afforded me. When I observed the ad- vancement in every department of learning which the members of your illustrious Society were daily atchieving, I also felt desirous of endeavouring to contribute to the improvement of our National Jurisprudence, by republishing and illustrating the writings of an eminent VI Judicial character, whose title to the admiration of his Countrymen renders him worthy to be ranked with your Lord Bacon, and your Sir Edward Coke. I do not anticipate any praise for that part of the publication which is my own, but shall be highly gratified by your accepting the dedication of it as a testimony of my gratitude and friendship. I have the honor to be with the highest respect, your most obedient Servant, ANDREW AMOS. : • .'' . PREFACE. A new edition of Fortescue's treatise " De Laudibus Legum Angliae" appeared to the Editor an useful undertaking, not only because he consider- ed that copies of the work had become scarce and expensive, but also on account of the intrinsic value of the matter it contained. In the present edition will be found the Translation published in the year 1775; together with the original composition in Latin subjoined. A few notes are added; in which an endeavour has been made to point out rather than to pursue those channels of investigation which seemed requisite for elucidating the text, or for illustrating it by shewing its relation to the History, Antiquities, and Jurisprudence of the Country. In examining the merit of this small tract of Fortescue, and the claim which it possesses upon public attention, it will be remembered with what respect it has been cited by the most eminent per- sonages, whose names adorn our judicial annals, Coke, Somers, Holt, Blackstone. In many of the most momentous questions which have been agitated in Parliament and in the Courts of Westminster Hall, a powerful appeal has been made to the autho- rity of this treatise. Neither can the character or the situation of the Author fail of imparting an additional Vlll PREFACE. interest to it. He was a person who filled the office of Chief Justice of England with great reputation, during a considerable period of the reign of Hen. VI. When he was composing his work " De Laudibus Legum Angliae," he occupied, like Clarendon, the station of Lord High Chancellor, by the ap- pointment of a Sovereign who had been deprived of his throne: And both those illustrious legal characters were conspicuous for making the in- struction of their countrymen the object of their meditations in exile. Fortescue conceived that he was pursuing a judicious course for securing the future happiness of the English Nation, in forming the character of the Heir Apparent to the throne, and acquainting him with the duties of a Patriot King: a task which in later times, even Hampden did not look upon as derogatory to his talents, or incompatible with his independence. Philosophy has undergone almost a new birth since the period when Fortescue wrote; education has received much improvement; the stores of learning have been augmented; experience has instructed and enlightehed the present generation by the example of the ages that are past: It will not therefore be thought surprising that the re- flections which the wisest of our ancestors have transmitted to us should often appear to our under- standings puerile or ridiculous, the result of con- tracted or prejudiced views. Nevertheless the PREFACE. IX opinions and feelings of antiquity must be made an object of research, if we wish to arrive at an intimate knowledge of laws, considered as a criterion of the wants and the sentiments of a people. Lord Bacon has remarked that historians afford us a very imperfect light in this enquiry, " Versatur infelicitas quaedam inter historicos vel optimos, ut legibus et actis judicialibus non satis commorentur, aut si forte diligentiam quandam adhibuerint, tamen ab authen- ticis longe varient." Whereas the writings of Portescue present an interesting picture, drawn from what was passing under his immediate view, of the political, moral, religious and physical situ- ation of the Country connected with its juris- prudence. It is from these circumstances, more than from books of Statutes and Reports, that the origin of national laws is to be discovered, their spirit and meaning to be collected, their ex- cellence to be appreciated, and the blind veneration which often attends them to be dissipated. A pre- vious enquiry concerning the original sources of national law is surely necessary for unfolding the design and the principles of our earlier legal institu- tions, and must afford great facilities towards the comprehending those parts of the present fabric of our Jurisprudence, of which the construction is of an ancient date, or which have been fashioned after the ancient model. Considering that in the present treatise of Fortescue, are laid before the reader the ; X PREFACE. materials which may assist in composing- a philo- sophical history of the law, whilst the sentiments of our ancestors are there recorded upon the deeply important subjects of religion, government, and the administration of Justice, we shall perhaps not think the value of the work to have been overrated by Sir William Jones, who ascribed to it the precious- a ness of gold . The benefit resulting from the perusal of For- tescue's treatise will be deemed of paramount utility, if it has the effect of cherishing in the minds of reflecting men those principles of govern- ment and civil obedience, which it inculcates, and which are admirably calculated to unite a Sovereign and his people by the ties of mutual interest, and of reciprocal protection and dependence. If these principles were first promulgated by Fortescue 3 Sir W. Jones, in recommending to a learned foreigner the works from which a knowledge of the English Constitution might be best collected, says, Alter, libellus est, de quo dici potest id quod de fluvio Teleboa scripsit Xenophon, Meya<; /xeu ov, Ka\o<s Se. Auctor fuit Angliae Cancellarius sub rege Henrico sexto, et ob turbulenta tempora, cum alumno suo principe Edwardo, in Galliam fugit ubi, cum esset summa senectute, aureolum hunc dialogum con- texuit. Certe leges nostrae, ut in illo libro videbis, persapienter sunt composite, ut ait Pindarus, No/jio? 6 TtavTiav Btur&tot Qvarmv re ko< adavaTwv, Outos Se Zrj ayei fiiaiws To ciKaioTov, vtrepTaTa Xeioi. Et reliqua quae citat in Gorgia Plato. : PREFACE. XI during- his banishment, and when he was in the service of a Lancastrian King, he asserted them again in his work upon Political Monarchy, after he was restored to his Country, and his allegiance was plighted to a Prince of the House of York and it will be seen in the course of the ensuing- pages, that the spirit of the ancient government of England, as pourtrayed in this treatise, derives ample confirmation both from domestic authorities, and from foreign testimony. It may not appear a useless or unimportant task to have labored for the preservation of this early record of those simple and intelligible truths, which ought to form the basis of every rational government; and the im- portance of which is manifested by the fatal con- sequences arising from the neglect of them that are legible in our national history. The remarks of Fortescue upon the legal in- stitutions which are the subject of his panegyric, may be productive of other beneficial effects, if they satisfy the reader, that much of the ancient part of our law requires a serious revisal and amendment. It is impossible to peruse the Chancellor's observa- tions in the course of the present treatise, without perceiving the extraordinary change which time has occasioned in the circumstances, the manners and the opinions of the English People. This obvious reflection may tend to confirm an im- pression, that the intricacy and want of rationality, XII PREFACE. which are justly imputed to a considerable portion of the Law of England, arise from an adherence to antiquated forms and maxims, adapted to a state of society totally different from our own. The institutions of the past generation have been moulded to supply the wants of the succeeding one, until the Law of the Country has become disfigured by a variety of fictions and subterfuges, scarcely intelligible even to lawyers, and highly oppressive to the community, by their prolixity and liability to error. It may be advisable in the present day to retrace the interval of some cen- turies, and to survey the provisions of our municipal law, with the light afforded by an ancient encomiast. It may be expedient to sift and examine the reasons which our forefathers assigned in support of what they have established. The mind will thus be en- abled, by a more close observation, to distinguish between those parts of our system of jurisprudence, whose estimation has survived the period during which they were useful and appropriate, and such as retain an essential connection with the tranquillity and freedom of the Country.
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