VERA EEFIGIES EDVARDI WATERHOVSI ARMIGERI ANNO DOMINI 1663 ANNOQVE AETATIS SVAE 44 D Loggan ad viuum sculp FIRMA NOBIS FIDES Fortescutus Illustratus OR A COMMENTARY On that Nervous TREATISE De Laudibus Legum Angliae Written by Sir JOHN FORTESCUE Knight First Lord Chief Justice after Lord Chancellour to King HENRY the Sixth VVhich TREATISE dedicated to Prince EDWARD that King's Son and Heir Whom he attended in his retirement into France and to Whom he loyally and affectionately imparted Himself in the Virtue and Variety of His Excellent Discourse Hee purposely wrote to consolidate his Princely minde in the love and approbation of the good Lawes of ENGLAND and of the landable Customs of this his Native Country The Heroique Design of whose Excellent Judgement and loyal Addiction to his Prince is humbly endeavoured to be Revived Admired and Advanced By EDWARD WATERHOVS Esquire 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Oportet leges quidem acriter statui mitius autem quam ipsae jubent poenas sumere Isaeus apud Stobaeum Serm. 147. LONDON Printed by Tho. Roycroft for Thomas Dicas at the Sign of the Hen and Chickens in St. Paul's Church-yard 1663. TO THE RIGHT HONOURABLE and truely Noble EDWARD EARL of CLARENDON Lord HIGH-CHANCELLOUR OF ENGLAND May it please Your LORDSHIP THOUGH the proof of Your obliging and generous Virtues hath fixed in Wisemen a confidence of Your favourable acceptance of whatever Wisdom and Worth under the Patronage of Your endeared Name and Greatness presents to the Publique and that it cannot but be thought rather a certainty then presumption that You will treat those with ingenuous kindness who are ambitious to perpetuate Virtue and to adorn the dead Monuments of it with all those Tropheys of revival and amplitude which their greatest parts and most elaborate endeavours to that honestly-ambitious end can possibly arrive at Yet may it My Lord be doubted how this enterprise of mine by which I humbly under the favour of Almighty God and Your Lordship design to revive the Memory and illustrate the Learning of that Venerable and Profoundly-Scientifique Antecessor in the Office of the Chancellourship Sir JOHN FORTESCUE may be from my hand accepted who am none of the first Three in adaptation to such a Service But since it pleased God as to impregnate me with resolutions to attempt so to vouchsafe me health to finish what I proposed in these Commentaryes I trust Your Honour will accept the Protection of them though they be but the Umbra and Eccho of the various and transcendent Learning that the Text of the Chancellour FORTESCUE abounds with For truely My Lord had I not well-weighed my Reverend Original and found in him that Pondus and Affluence of general and well-digested Science which would exercise the pains and curiosity of a Gentleman and generous Artist I should never have ambition'd the exploration of what God would enable me to in so incessant a progress of study as this has occoasioned Yet forasmuch as by the assistance of God I have in such proportion as his merciful indulgence has favoured my humble industry with perfected these Commentaryes and obtained the favour and encouragement of an Honourable Learned and Grave Permission of them to the Press for publick View I humbly beseech Your Lordship to pardon me while in pursuance of those primitive resolves of my first undertaking them which was above five years since I devote them to Your Perspicacious and Oracular Self Whom of all His most Excellent MAJESTY'S Favourites and Ministers of Estate I foresaw by the augury of a very affectionate and well-instructed experience the probablest to succeed to the opportunity and exceed in the ability to propagate FORTESCUE in all the latitudes and advantages of his Sage Legal Civil and Politique Counsel and Conduct of Greatness to that which is the most Royal termination of it Iustice and by that Impartial Arbiter of Iustice which wise and well-advised English-men call The Law of England And therefore My Lord there being so true a Parallel between my Noble Text-Master and Your Noble Self Both Gentlemen by birth Both Lawyers by breeding Both Knights by degree Both Wisemen by experience Both loyal Attendants on your Sovereigns recesses abroad and Both honoured by your Sovereigns with the trust and state of Chancellours these Instances of likeness relating to and uniting in you both make me bold to conclude that to no VVorthy alive are these Commentaryes so properly to be addressed as to Your Highly valued Person Whom I believe to be not onely what the Learned Parisian Chancellour Budaeus once wrote of the French Chancellour Deganai One Qui per omnes aetatis progressus totidem honorum Civilium gradus suopte nixu nullo manum porrigente scandens non antequam ad culmen honorum evasit scandendi finem fecit ut non fortunae beneficio sed suo merito pervenisse eo credi possit cujus ea vis suisse ingenii atque animi cernitur ut quocunque loco natus esset in quodcunque tempus incidisset fortunam ipse sibi facturus videretur but also what may as truely without degenerous flattery be added That very Happy Hee Who has concentred in Him so much of the Eloquence of Tully the Gravity of Cato the Iustice of Aristides and the favour of Mecaenas as renders You meet to obtain the utmost Honour a Sovereign Master can reward a faithful and approved Subject and Servant with Which that Your Lordship may long deserve and live to enjoy and to bless this Nation and every worthy Interest and Concern in it with the rayes and diffusions of that Prudence Piety and Loyalty which are concluded eminent and exorient in You is and shall be the earnest and sincere Prayer of From my Study in Syon Colledge June 11 1663. Renowned Sir Your HONOURS Most Humble Servant EDWARD WATERHOUS THese Commentaryes upon the Chancellour FORTESCUE'S Learned Treatise De Laudibus Legum Angliae We conceive useful and fit to be published And therefore approve the Printing thereof May. 14. 1663. Robert Foster Orlando Bridgeman Matthew Hale Thomas Malet Robert Hyde Edward Atkyns Thomas Twisden Thomas Tyrrill Christopher Turnor Samuel Brown Wadham Wyndham AN INTRODUCTION TO THE COMMENTARY UPON FORTESCUE BEfore I treat on the Text I think it convenient to write somewhat concerning the Parties introduced and the manner of introducing them The manner of their Exhibition is by way of Dialogue a form very ancient and significant whereby Authours as Trismegistus Plato Plutarch Tully Athenaeus Aristophanes Lucian and hundreds of others brought in such persons and fictions as conduced to the various expression of their design and the useful instruction of after-Ages and therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is the inward reasoning of the minde whereby a man proposes things Pro and Con as if really acted is by Ruffinian ranked inter schemata 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and he that skills this Art aright called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so that
Lelandu refert ut qui non modo ingenio verum etiam â—alamo utpote bonis instructus Artibus plurimum valuit so that were not Records and later Authours more punctual the Worthy Authour might have been less certain But our late learned Selden who has led me the way to admire this Authour has particularly displayed this brave Sage to be third Son to Henry Fortescue Son of Sir John Fortescue Knight Captain of Meaux and Governour of Bry in France under Henry the Fifth which Sir John was second Son of William Fortescue of Wimeston in the County of Devon Esquire so that our Chancellour being immediate Heir in the eighth descent of Sir Richard Fortescue Knight who came out of Normandy in the Conquerours time was generously descended by his Father and no less by his Mother who was a Daughter and Heir of Beauchamp his eldest Brother was Lord Chief Justice of Ireland and dyed issueless his second Brother's Posterity in the third Descent divided themselves into two Branches one of which seated themselves at Fawborn in Essex the other was seated by Sir Iohn Fortescue Chancellour of the Exchequer and Master of the Court of Wards at Salden in Buckinghamshire where now the Heir of his Family Sir Iohn Fortescue resides who very civilly and like a Gentleman of Honour sensible of the service I aimed to doe to the Memory of our Chancellour his Noble Kinsman presented me with this information from his Pedigree and with the Picture of our Chancellour which he caused to be cut to be hereunto prefixed which I purposely mention as my return of kindness and thanks to his care to right my Noble Chancellour whose Portraicture but for him had been unknown and unpublique So that he was of a Knightly Race and of so renowned a Gravity that he was Chief Justice to Henry the Sixth for the latter half of his Reign and as appears by Records that he might Statum suum decentius manu-tenere the then King gave him an Annuity of an hundred and eighty Marks out of the Hamper together with 116. s. 11. d. ½ percipiendum singulis annis ad Festum Natalis Domini pro una Roba Furrura pro eadem erga idem Festum 66. s. 6. d. singulis annis ad Festum Pentecostes pro una Roba Linura pro eadem erga idem Festum so greatly did this Worthy Knight deserve of his Prince that he was thought the meet subject of all Favours For he well demeaned himself in all Trusts and as he lived no shame to his Family so dyed he not ashamed of Fidelity to his Sovereign for him he accompanyed in his misfortunes and to him did he express the ardour of a just and ingenuous gratitude in applying to his Son and Heir whom he hoped should inherit his Throne and Dominions such wholesom Documents as best fitted him to submit to God while a Sufferer and to rule in the place of God when he should restore him to his Government and subject his people and the guidance of them to him Thus much for our Text-Master's Name Fortescue Now for his Office Chancellour a great Office of Trust and Dignity the Prince's Conscience in a Subjects breast the Great Iustice of the Realm in whom the oppressed ought to finde Relief and from whom the Oppressour how great how popular soever he be ought to finde no Favour The Trust of this Officer in England appears notably out of old Ingulphus where Edward the Elder King of this Land expresses his minde to Turktil Abbot of Crowland his Chancellour in these words Ut quaecunqus negotia temporalia uel spiritualia Regis judicium expectabant illius consilio decreto tam sanctae fidei tam profundi ingenii tenebatur omnia tractarentur tractata irrefragabilem sententiam fortirentur So Ingulphus The Name Cancellarius is variously understood Grammarians make it no more then a Scribe or Notary as the Domestici apparitores to great Magistrates or as Praefectas Praetorio The Verb Cancello whence Cancellarius signifying to deface or amend or cross out a thing written having relation to a Superiour commanding it some have thought to import the Office and Officer to be subservient and under some limitation which possibly the Lattices which are called Cancelli whether in Churches or in Courts do further illustrate For as in Churches Chancels are immured in and severed from the Navis Ecclesiae and the most noted Members of the Church sit there so in Courts the Judges and Officers of the Courts fit within the Barrs when the Counsellours Advocates and Pleaders which Budaeus calls Cancellarios and we call Barristers stand and plead at the Barr. In the Sacred Empire the Office of Chancellour is as frequent as our Steward in Mannours every Province almost having its Chancellour who is but a Cypher to the Great Chancellour whom Budaeus defines Principis praesentis Vicarius eo peregre prosecto Inter-rex quodammodo censendus and in another place Norma omnium jura reddentium cujus ore facundi Reges moribus nostris esse solent cujus oculis uelut emissitiis circumspicere omnia ac perlustrare creduntur And therefore Cassiodore writing to one of these Chancellours cajoles him thus Respice quo nomine nuncuperis tenes quippe lucidas fores claustra patentia senestratas januas This great Officer France Spain Denmark Sweden Scotland preferr above all Officers and so does England too and that anciently for Fleta writing of the Great Officers of England fayes thus of the Lord Chancellour Est inter caetera quoddam officium quod dicitur Cancellaria quod viro provido discreto ut Episcopo vel Clerico magnae Dignitatis debet committi simul cum cura Majoris Sigilli Regni cujus substituti sunt Cancellarii omnes in Anglia Hybernia Wallia Scotia omnesque Sigilli Regis custodientes ubique so Fleta Sir Henry Spelman fayes much in few words Censorem non agnoscitpraeter Regem nec lites ei transmittant Judices sed inuitis ipsis saepe adimit so He. And in all Acts of Parliament and Instruments of State the first Person of Trust is the Lord Chancellour who is counted Magistratuum omnium Antistes by reason of which the Chancellourship is called Summum bodie honorum fastigium ultra quod nibil sper are licet homini quidem priuato togato quasique quod dam summa quedam ambientis animi solstitium By which and what to this purpose might abundantly be added it appears that this Officer is the weightyest and of greatest import of any in the Nation Caput sanctioris interiorisque consilin without which well-performed with trust and temper Oppression would call for Divine Vengeance and Injury not be more the Siu then Suffering of the Nation thus much for the Office of the Chancellour Though I judge in this high and supreme sense our Authour bore the Name had not the actual Power
which smell more of a Cynique Severity then a generous Candour but when he in his grave and sober address complements the Prince into a good opinion of him how well received are all his Documents Prejudices against mens Persons end in prejudices against their Words and Actions and men of scandalous looks are seldom less then Beams in the Eyes of Princes who never look with pleasure upon figures which have torvous rude and discomposed Visages This the wise Chancellour foreseeing frames himself to such a Courtly Demeanour as might not immerge his grave Design in the danger of miscarriage but still preserve him regarded in his Princely eyes to which he ever desired to approve himself worthy Thus much for the Chancellour the first party in the Dialogue Now of the Prince the second and more noble party This Prince was brave Edward Son and Heir to King Henry the Sixth of this Land by Dame Margaret Daughter to Reynard Duke of Anjou and Berry and King of Ierusalem to whom in his Father's Misfortunes this Royal Stripling forced to fly into France addressed and from whom he doubted not to receive the courtesie of welcome being under those inevitable pressures which attend things humane and against the infelicities of which Crowns cannot prescribe for could any Father have merited his own establishment and his Posterities blessing surely the Saintly Father of this Prince would have been the very Hee For He was a Prince of remarkable Virtue a Pattern of most perfect Piety upright farr from fraud wholly given to Prayer reading of Scriptures and Alms-deeds of such integrity of life that his Confessor avowed that for all the ten years he had confessed him he had never committed any mortal Sin so continent that suspicion of unchaste life never touched him so full of Charity that he thought he did never enough for the Church and the Poor Who on dayes of Devotion would wear Sackcloth and learned from his Saviour to use no other Communication then Forsooth Forsooth Yea Yea Nay Nay yea so full of Mercy that he pardoned when for a time he was restored to his Crown one that thrust him into the side with a Sword when he was Prisoner in the Tower Yet this Prophetique King who foretold from the face of Henry the Seventh when but a Childe That He would be the Person to whom both We and our adversary leaving the Possession of all things shall hereafter give room and place could not by his Kingly Divination foresee or by Prudence obviate and forestall his misfortune but after almost one and thirty years quiet Possession of his Government in the fifty second year of his age lost his Crown by Battel gained against him his Adversaryes being fewer in number then his Partizans and soon after his life was taken away by Murther and his Corps buryed at Chertsey being carryed thither obscurely without Priest or Clerk Torch or Taper Singing or Saying or any kinde of Decent or Christian Solemnity So departed this good King And unfortunate was Gallant Prince Edward his Son who as he was a young Gentleman of faire Complexion and comely Person so was he of a brave bold and daring courage as appears by his valiant demeanour in Tewksbury field wherein he very Princelyly manned a great and puissant Army expressing no remissness in any point of true and generous Knighthood yet for all that endeavour lost the day and became a Prisoner to Sir Richard Crofts who took him and for a while kept him safe and secret but whether the fear of Edward the Fourth now Victor or the love of the reward promised to the Discovery and Delivery of him wrought the resignation of him into Fourth's Hands sure it is rendred he was and as sure that upon the rendition of him he was contrary to Fourth's Proclamation slain For when he came into Fourth's Presence and was by him demanded How He durst so presumptuously enter into his Realm with Banner displayed Hee the Prince Edward Son to Henry the Sixth boldly answered To recover my Father's Kingdom and Heritage from his Father and Grandfather to him and from him after to me lineally descended at which words King Edward the Fourth said nothing But with his band thrust him from him or as some say struck him with his Gantlet Whom incontinently George Duke of Clarence Richard Duke of Gloucester Thomas Gray Marquess of Dorset and William Lord Hasting that stood by suddenly murthered For which cruel Act saith my Author the most part of the Doers in their latter dayes drank of the like Cup by the righteous Iustice and due punishment of God For the Duke of Clarence who murthered both Henry the Sixth and his Son this towardly Prince that our Fortescue so loved and applyed himself to about the 18 E. 4. was accused of Treason cast into the Tower and after drowned in a Butt of Malmsey The Duke of Gloucester after Richard the Third was slain at Besworthfield His body being naked and despoiled to the skin and nothing left about him not so much as a clout to cover his privy Members being trussed behinde a Pursivant of Arms like an Hogg or Calf his head and arms hanging on the one side of the Horse and his leggs on the other side the Lord Hastings was accused of Treason by the Duke of Gloucester when Protector to Edward the Fifth and beheaded so that onely the Marquess of Dorset remained which what became of him I finde not but I believe he that shed the bloud of a Prince had his own bloud shed as the satisfaction of Justice For viler men never the World saw of Nobles then were these Peerlessly wicked Pâ—ers who slew in cold bloud the Son of a King whom the King in being promised to preserve Thus much for the Story of the Prince the second Person in the Dialogue Who being the Care and Charge of our Chancellour and proving notably rational and manly may be thought to appear such from the improvement of those Principals and Maxims which our Fortescue His Father's and His Chancellour had communicated to him in this Discourse De Laudibus Legum Angliae which among many other Treatises that he wrote is accounted the most worthy as being not onely the fruit of his solid Law-judgement which further appears in the Year-Books of H. 6. from the twentieth of his Reign upward but of his various Abilities in Philologie and Historique Learning as in what after followeth more at large appeareth So endeth the Introduction which the Authour publishes as he does the subsequent Commentaries Sub Protestatione de addendo retrahendo corrigendo poliendo prout opus fuerit consultius videbitur DEO Clementissimè annuente E.W. Sr Iohn Fortescu Kt Lord Cheife Iustice Lord Chancellor of England vnder King Henry the Sixth FORTE SCUTVM SALVS DVCUM A COMMENTARY Vpon FORTESCUE De laudibus Legum Angliae CHAP. I. GAudeo verò Serenissime Princeps
super Nobilissima Indole tua 'T was the Oratour's Rule long ago to commend what he had to utter by apt Prefaces Oratoris est bene incipere and the reason being to engage the Auditours to Attention and thence to captivate them the Practice proved not onely appropriate to Oratours but to Historians and generally all Writers This Method prevailing with our Chancellour in these words makes me ready to write that of him which Seneca does of his Fabian That he seems to him not so impetuously to multiply words as weightily and profitably to express his minde by them So compt so seasonable so peculiar to his purpose is this Courtly Frontispiece that therein our Fortescue like Seneca's Fabian may well be written of as non negligens in oratione sed securus and his Book to which this is the Inlet be termed Electa verba non captata c. Choice words not wrested as the manner of men is from their proper meaning but significant to the purpose for which they are alleadged and expressive of an high Genius and a Magnanimous Soul that uttered them For here the Chancellour displays both the Prince's Endowments and his own Affection to the Glory and Extent of them that as by the one he appears to have tutoured a Noble mind so in the other does he insinuate such Tuition to take the first fire from his Example who loved the virtue in others which was first ingenerated in himself This Clause then Gaudeo Serenissime Princeps super Nobilissima Indole tua relates both to the Prince and to the Chancellour in the Expansion of it To the Prince as Serenissimus and Nobilissimae indolis to the Chancellour as affected with and rejoycing for the futurity of good to the Nation over which his Accomplishment was to be influential This is the purport of this Introductional Artifice which I the rather touch upon because it is a Course both Christian and artly not to prejudicate our Success by rude Prefaces but to make our ends on men in honest ways through the Mediation of Favour honestly begg'd and readily with Consent of those we ask it of obtained And because the Cause preceeds the Effect in Nature's Order and it will become us to treat of the Root before of the Fruit the Prince's Perfections shall preceed the Chancellour's Affection to Him for them even in our Comment The Prince is represented first as Serenissimus Then as Nobilissima indolis Serénissimus Antiently Emperours and Princes were pleased to be called by Names of singular Beneficence Pii Clementes Mansueti Tranquilli Sereni Felices but of late they have assumed Superlatives to their Condecoration so that not onely Iupiter had the Name of Optimus Maximus but all Supremes are now represented by superlative Expressions because they challenge sole Power within their Dominions Hence comes it to pass that though Princes do communicate many Attributes of theirs to men of Virtue and Eminency as to Patricians Senatours and Ministers of Learning and State such as are the Titles of Illustres Spectabiles Nobiles Clarissimi Perfectissimi of which Pancirol gives us a particular Accompt yet the Title of Serenissimus as incommunicable Princes have reserved to themselves and to such have wise men chiefly if not onely given it Thus of old did Saint Leo term the Emperour Leo to whom he wrote 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 To Our most glorious and most serene Son Leo the Emperour and that because Serenity in a Prince is that temperament which keeps him aequilibrious and properly qualified to rule and all the Concomitants to it And therefore though Herodian to flatter a vile Commodus may call him Nobilissimum Imperatorem and Licinius Valerianus may because none others will give himself that Title yet none deserves the Title of Serenissimus but he that in Lactantius his words in opere misericordiae largiter fecerit c. He that is merciful generous and ha's expressed in his life and Actions Perfect Virtue Indeed Serenity being a Supralunary may well be accounted more then ordinarily of nor is it so much a Courtesie as a due debt and homage to Serenity to admire it The Catholique Rational Nature conspires to pay a Devoir to this Deity for the Diffusion of its quality to every thing Serenity is that temper that gives opportunity to all Virtue and then is the Season to do worthily when there is no Cloud no Storm of Obliquity in the Minde but all the Region of it is clear therefore all serene things were accounted excellent aestas serena coelum serenum color serenus lux serena animus serenus doctrina serena frons tranquilla serena yea vitam serenare and domum largo igne serenare are frequent in all good Authours to express the greatest pleasure content and comeliness by And therefore the Positive being so significant its Superlative must have a supereminency of sense reflecting most intense Lustres on a Prince and prolating him not as onely disposed to but accomplished with the liberallest Proportions of humane Capacity whereby lofty Nature is reduced to such an harmonious Mansuetude as makes Majesty comply with Meaness and forbear those superb and monstrous Titles which both intimidate men and intrench on God's Patience provoked by the Arrogancy of them For though Attila may glory in the Title of Ira Dei ego sum Orbis vastitas I am the Anger of God and the World's Devastation and Abbas the Persian King vapour that he is King of Kings and Sultanies Lord of the Imperious Mountain of Ararat Commander of all Creatures from the River Corazon to the Gulph of Persia Governour of all Sultans Emperour of Musselmen Bud of Honour Mirrour of Virtue Rose of Delight while Sapores vaunts himself to be King of Kings Equal to the Stars and Brother to the Sun and Moon and Cozroes will be Lord of Lords Prince of Peace Salvation of men the great Conquerour rising with the Sun giving Lustre to the Night notwithstanding the great Cham give out he is the Son of the highest God and Quintessence of the purest Spirits and Prester Iohn challenges to himself to be Head of the Church the Favourite of God the Pillar of Faith yet all these and such other Rhodomontadoes are but the Lunacies of deluding and deluded Opination the Metretricious Suggestions of light and loathsome Eccentricity Privations of that Serenity which keeps the Minde in a Royal Mansuetude and inclines it to a fertile and frequent Humanity which Nerva probably foreseeing in Trajan's temper rewarded with Adoption of him to the Empire for though Trajan were a Spaniard and neither an Italian nor Italiz'd yea though Nerva himself had many Kindred and none of strange Origen were ever Emperour before Trajan yet 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 He did not prefer the advancement of his Kindred above the good of his Government Trajan he chuses 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Making Virtue a Qualification to Government rather then