CHAP. VIII.

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 speaking, matter and form, these being what go to the composition of natural things; but something analagous 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 particular 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 Commentator calls the efficient causes, these are no other than certain Universalia, which the learned in the law, as well as mathematicians, call Maxims 2,

Lord Bacon, in the preface to his Maxims, has detailed the advantages, which he supposes may result from collecting the rules and grounds dispersed throughout the body of the laws. But the benefit which science has received from the use of maxims, is of a questionable nature, and the adoption of them is attended with danger wherever the ideas are confused. (Locke on the Human Understanding, Book IV. ch. 7.) Perhaps there is a period in the progress of every system of laws, previous to which the formation of maxims will be productive of bad effects, as leading to the establishment of principles which it is not permitted to controvert, but which more enlightened views of law and jurisprudence, would repudiate, (See further concerning the maxims of the English law. Sir I. Dodderidge's English Lawyer, and Doctor, and Student, Dial. 1. ch. 8 and 9.)

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, according 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, whoever 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

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in our own conceits." So, my Prince, there will be no occasion for you to search into the arcana of our laws with such tedious application and study; it will be sufficient, as you have made some progress in grammar, to use the same method and proportion in the study of the laws. As to grammatical learning, which consists of Etymology, Orthography, Prosodia and Syntax, as so many springs or fountains running together to complete it; you are not so perfect a master, it is true, as to be acquainted with all the particular rules and exceptions comprehended 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 King's judgments, though pronounced 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

See note B at the end of this Chapter.

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 knowledge and practice of twenty years is but barely sufficient to qualify for a judge, you will acquire a knowledge sufficient for one of your high quality, within the compass of one year; and in the mean while attend to, and inure yourself to martial exercises, to which your natural inclination prompts you on so much, and still make it your diversion, as shall best please you, at your leisure.

"PROPRIO Ore Rex nullus Angliæ judicium proferre usus est." This passage was quoted by Sir E. Coke, at the celebrated conference between the houses of Parliament, respecting the liberty of the subject, for the purpose of shewing that the King can do nothing in his public capacity, without the agency of some responsible minister. This is a principle of the highest political importance, and it is maintained by the greatest authorities of the law of England, (2 Inst. St. West. 1. where Sir E. Coke again relies upon the passage in the text. Impeachment of Lord Danby, for a letter written by the order of the King, 2. Hargr. St. tr. Danby Memoirs. Harris's Car. II. Vol. V. p. 238. Answer to the King's Declaration, upon dissolving the Parliament, A. D. 1681. Vol. IV. Parl. Hist. Appendix. Harley's Vindication of the Rights of the Commons. Somers's Tracts, W. 3. Speaker Onslow's Note respecting Lord Somers's Answer to his Impeachment in Burnet's Own Times, Vol. IV. 468, 479. St. 12 and 13, W. 3. ch. 2. §. 3.) When any judicial act is by a statute referred to the King, it is understood as required to be done in some court of justice, according to the law; for, in the view which has been taken of this subject by our most eminent legal writers, the King has committed all his judicial authority to the several courts, and if any one would render himself to the judgment of the King in such case, where the King has committed all his judicial power to others, it would be to no effect. (2 Inst. 186, "Maundement del Roy," 3 Inst. 146, " Volunt le Roy,” 4 Inst. 71, and

what

what is there said respecting "Dominus Rex in camerá suð,” 2 Inst. 46, "Nec super eum ibimus." The Year Book, 2 Rich. III. fol. 11, and respecting the invalidity of an arrest by virtue of a personal warrant from the Crown, 2 Shower 484.) Saint John observes, that although his Majesty is said to be the fountain of justice, and although all the justice within the kingdom flows from that fountain, yet it must run in certain and known channels, (Argument for Hampden, 1 Hargr. St. tr.) With this Sir Robert Atkyns agrees, saying, that the light of justice was in the King, but was afterwards settled in courts, as the light of God in the sun and moon. (Tract on the Ecclesiastical Commission.) The principle of the incapacity of the King of England, to exercise any judicial function, was magnanimously asserted by Sir E. Coke, in the presence of King James, notwithstanding that infatuated monarch pronounced the doctrine to be treasonable. (" Prohibitions del Roy," 12 Rep. 3 Lodge's Illustrations, 346.) It is true, that at a period before the principles of the Constitution were settled upon a solid basis, instances are to be found, in which the kings of this country have personally assisted in the administration of justice, (Dial. de Scacc. lib. i. §. 4. Madox's Exchequer, ch. 3. Barrington's Observations on 17 Edw. IV. Reeves's History of the Law. Edw. IV. Henry's History, Vol. V. p. 382. 3 Bl. Comm. 41 n. Paston Letters, Vol. IV. p. 77. Vol. II. p. 275. and concerning the right arrogated by James, of presiding in the Star Chamber, Brodie's British Empire, Vol. I. p. 193.) Examples also of an interference on the part of the Crown, with the ordinary course of justice, may be adduced from the records of the Exchequer, which evince the expediency of every distinct provision, contained in the famous clause of Magna Charta, "Nulli negabimus, nulli vendemus, nulli differemus justitiam aut rectum." (Madox's Exch. ch. 12. §. 6.) Instances likewise in which the Sovereign has tampered with the public dispensers of justice, are to be met with in different periods of English history; and an indelible stigma is affixed to the house of Stuart, for having eclipsed every preceding and subsequent dynasty, in the shamelessness of the practice, and in the enormities of which they made it the instrument, (Luders's Tract on the Station and Character of the Judges in the 16th and 17th centuries. Foster's Dicourses, 199, 200. Bacon's Letters. Burnet's Own Times Vol. I. p. 272.)– So far, however, is the English Constitution abhorrent from any influence, which the Crown might exercise in the administration of justice, that the Judges are expressly prohibited by their oath, from obeying any injunctions, which may interrupt them in the discharge of their duties, (2 Inst. 56. 2 Edw. III. c. 8. 14 Edw. III. St. 1. c. 14. 20 Edw. III. c. 1 and 2. 11 Rich. II. c. 10. see also Lord Somers on Grand Juries, p. 111. et. seq.) The Statutes, which require the Judges to persevere in this independent line of conduct, may be enforced by means of a particular writ, entitled "De Procedendo in Judicium." (Fitz. Ñat. Brev.