This is a reproduction of a library book that was digitized by Google as part of an ongoing effort to preserve the information in books and make it universally accessible. https://books.google.com UNIVE NFORD UBRAR School of Law ह பல UL PREMY . JSN LFO XKD 1874 DE LAUDIBUS LEGUM ANGLIÆ A TREATISE IN COMMENDATION OF THE LAWS OF ENGLAND BY CHANCELLOR SIR JOHN FORTESCUE WITH TRANSLATION BY FRANCIS GREGOR NOTES BY ANDREW AMOS AND A LIFE OF THE AUTHOR BY THOMAS ( FORTESCUE ) LORD CLERMONT . CINCINNATI : ROBERT CLARKE & CO . 1874 Entered , according to act of Congress , in the year 1874 , By ROBERT CLARKE & CO . , In the office of the Librarian of Congress , at Washington . Stereotyped by OGDEN , CAMPBELL & Co. , Cin . , o . 93144 PUBLISHERS ' NOTICE . In carrying out our plans for the republication of some of the most noted “ Legal Classics , ” Sir John Fortescue's “ De Laudibus Legum Angliæ ” was selected as the third of our series , and the edition by Amos , published in 1825 , was fixed upon for republication . Just as we were about putting it into the printers ' hands , we fortunately heard of Lord Clermont's privately printed edition of Fortescue's Life and Works , in 2 vols . royal 4to , printed in 1869 , a detailed description of which will be found on page liv . After some correspondence we learned that the edition was a limited one - 120 copies — designed for family friends and important public libraries . On being informed of our in tended republication , and of our desire to refer to it for comparison , Lord Clermont generously sent to us a copy of this sumptuous work , for our use in the preparation of this edition , and then to be presented to the Public Library of Cincinnati . We were thus enabled to make a careful examination and comparison of the text and translation of the two editions of De Laudibus . As the result , we have the pleasure of offering to our readers Lord Clermont's carefully corrected revision of both text and translation , with Amos ' valuable notes . We have also prefixed Lord Clermont's Life of his ancestor , which will be found more complete than any heretofore published . CONTENTS . Life of Sir JOHN FORTESCUE .. List of all the known Works of Sir John Fortescue . lii Lord CLERMONT's Preface to De Laudibus ... Ivii Amos ' Preface ..... Ixi DE LAUDIBUS LEGUM ANGLIA . Trans . Text . INTRODUCTION ... I 219 CHAP . I. The Chancellor exhorts the Prince to the Study of the Laws ...... 3 220 CHAP . II . The Prince's Answer ..... 6 221 CHAP . III . The Chancellor enforceth his Exhortation ....... 8 222 CHAP . IV . He proves that a Prince by the Laws may be made happy ...... II 223 CHAP . V. Ignorance of the Laws causes a Contempt thereof .... 14 226 CHAP . VI . A Repetition of his Exhortation ..... 17 227 CHAP . VII . The Prince yields his Assent , but proposes his Doubts ..... 18 229 CHAP . VIII . Such a Knowledge of the Law as is necessary for a Prince is soon to be acquired . 19 229 CHAP . IX . A King , whose Government is political , cannot change the Laws ..... 26 232 CHAP . X. The Prince proposes a Question ....... 29 233 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 ...... 31 233 CHAP . XII . How Kingdoms ruled by Regal Government first began ....... 34 233 CHAP . XIII . How Kingdoms ruled by Political Government first began ... 36 235 CHAP . XIV . The Prince abridges what the Chancellor had been discoursing of in the two foregoing Chapters .... 40 237 CONTENTS . Trans . Text . CHAP . XV . All Laws are the Laws of Nature , Customs or Statutes .... 43 238 CHAP . XVI . The Law of Nature in all Countries is the same .. 49 239 CHAP . XVII . The Customs of England are of great Antiquity , received and approved of by five several Nations successively 50 239 Chap . XVIII . How Statutes are made in England ....... 53 240 CHAP . XIX . The Difference between the Civil Laws and the Laws of England ....... 59 241 CHAP . XX . The first Case wherein the Civil Laws and the Laws of England differ .... ... 64 242 CHAP . XXI . The Inconveniencies of that Law which tries Causes by Witnesses only ....... 66 242 CHAP . XXII . Concerning Torture and putting to the Rack .... 71 244 CHAP . XXIII . The Civil Law defective in doing Justice ....... 76 247 CHAP . XXIV . The Division of Counties . Sheriffs and their Appointment .... 78 247 CHAP . XXV . Jurors . How chosen and sworn .. 84 249 CHAP . XXVI . How Jurors are informed by Evidence . The way of Proceeding in Civil Causes .... 89 251 CHAP . XXVII . The way of Proceeding in Capital Cases ........ 93 253 CHAP . XXVIII . The Prince owns his Conviction , that the Laws of England are much more commodious for the Sub ject as to the Proceedings in the above instances , than the Civil Law ..... ... 96 254 CHAP . XXIX . The Reasons why Inquests are not made up of Juries of Twelve Men in other Countries .... 105 255 CHAP . XXX . The Prince commends the Laws of England with respect to their Proceeding by Juries ...... ... un 258 CHAP . XXXI . Whether the Proceeding by Jury be repugnant to the Law of God , or not ...... 115 258 CHAP . XXXII . The Chancellor's Answer ... 117 259 CHAP . XXXIII . The Prince asks the Reason why some of our Kings have taken disgust at the Laws of England .......... 124 262 CHAP . XXXIV . The Chancellor's Answer .. 130 262 CONTENTS . TRANS . TEXT . CHAP . XXXV . The Inconveniencies which happen in France by means of the Absolute Regal Government ...... 135 263 CHAP . XXXVI . The Comparative Advantages in England , where the Government is of a mixed Nature , made up of the Regal and Political ... 139 266 CHAP . XXXVII . Concerning the Regal Governinent , and the Political Government .... 147 267 CHAP . XXXVIII . The Prince desires the Chancellor to proceed to other Cases wherein the Laws of England and the Civil Laws disagree ...... 150 269 CHAP . XXXIX . Concerning the Legitimation of Children born before Matrimony ..... 150 269 CHAP . XL . The Reasons why Base - born Children are not in England by the subsequent Marriage legitimated ........... 153 271 CHAP . XLI . The Prince's Approbation of the Reasons given in the foregoing Chapter ....... 156 274 CHAP . XLII . Concerning the Rule of the Civil Law : Partus semper sequitur Ventrem ... 157 274 CHAP . XLIII . The Prince yields his Assent to the Chancellor , and disapproves of the said Rule ....... 165 277 CHAP . XLIV . Concerning the Tuition of Orphans .......... 167 277 CHAP . XLV . Concerning the Education of the young Nobility during their Minority .... 169 279 CHAP . XLVI . Concerning open Theft , and private Theft ...... 176 280 CHAP . XLVII . 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 Law yers , as is usual in the other Professions ... 179 280 CHAP . XLVIII . The Chancellor's Answer .. 183 281 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 ....... 187 283 Chap . L. Of the State , Degree and Creation of a Serjeant at Law ..... ... 196 285 CONTENTS . TRANS . TEXT . CHAP . LI . Of the Judges of the Courts in Westminster - Hall , the Manner of their Creation , Habit and Employment ..... 202 288 CHAP . LII . The Prince starts an Objection with Respect to the Delays in Law - Proceedings ...... 206 290 CHAP . LIII . The Chancellor's Answer 211 291 CHAP . LIV . Conclusion .. 215 293 INDEX .. 297 LIFE OF SIR JOHN FORTESCUE .. Sir John FORTESCUE , Chancellor to King Henry the Sixth , was the second son of Sir John Fortescue of Winstone , in South Devon , who was present at the battle of Agincourt , in 1415 , and who was afterward appointed by Henry the Fifth governor of the fortress of Meaux , in the Province of La Brie , in France . He was younger son , by Elizabeth , daughter of Sir John Beauchamp of Ryme , in Dorset , of William Fortescue of Winstone , twelfth in descent from Sir Robert le Fort , surnamed Fort - escu , or Strong shield , who came from the Côtenin , in Lower Normandy — that cradle of Anglo - Norman families — with William the Conqueror , and fought in the battle of Hastings . Several pedigrees have made the Chancellor to be the grandson of Sir John , the Gov ernor of Meaux , and son of Sir Henry Fortescue , Chief Justice in Ireland ; but they are certainly in error , because a careful com parison of the periods during which the three persons in ques tion held their public appointments , will show that it is scarcely possible that Sir Henry and the Chancellor could have stood to each other in the relation of father and son , and because still stronger , and what for the present purpose may be called conclu sive evidence , is found in a contemporary document , where it is incidentally mentioned that “ Herry Fortescue , late Justice in Ireland , ” was the son of John Fortescue , and that he had a brother Richard ; and this last being also brother of the Chancellor , it follows that he and Sir Henry were likewise brothers . ” 1 Prince , Worthies of Devon . ? Proceedings in Chancery , reign of Elizabeth , and from Richard II . to Richard III . 3 vols . , folio , 1830. Vol . ii . , p . xviii . 3 There is , besides , a deed of 14 Henry VI . , quoted in the Biog . Britt . , vol . vi LIFE OF Sir John FORTESCUE . Of the place of his birth there is no positive mention . Prince says that it was “ most likely Norris , near South Brent , in Devon shire . " This was a seat belonging to his mother , who was daughter and heiress of William Norris of Norris , where her ancestors had been settled for eight generations .