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The works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) online

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through a woman.

Cap. V.

The fame is confirmed by the law of England in like cafe. ' .,

^^^ijj^GAIN, by the laws of the kingdom of England, if any pofTeflion, portion of land,
^ yiJy Vffl or tenement be given to any man and the male heirs defcending from him ; gi 'en
^^'^J^JL ^ tliat it he to whom fuch demefne is thus given had two fons, whereof thi: elJer
fhould have a daughter, and fhe a fon ; then when the man was dead to whom fuch j onion
of land or tenement was given, as aforefiid, and the firft-born fon and his daughtei- were
alfo dead, the fon of the woman being alive, the younger fon of the man to whom the demefne
was fo given fhall be heir of that demefne, and the males defcending from him and not he
fon of the woman, for as much as the woman can have no right in fuch inheritance, ; nd
according to the laws "No one can transter more right to another perfon than is kncwn to
belong to himfelf."

Cap. VI.

// is confirmed alfo by the like right in the kingdom of France^ and of Spain alfo, the kings whereof,
like the kings of England, were from ancient titnes anointed. \

^^^Kwlf^jGAIN, in the kingdom of France, if any one v/ere entitled to royalty tnrough a
gv^l^'NO, woman, the right to the crown of France would have at one time defcended to
^^S^ls^ the king of Navarre, and at another time by like title to the Count if Flanders,
and afterwards by like right to the King of England, as clearly appears to any one who reads
tlie chronicles of P'rance. By this manner of title certain Kings of England have for a long
time claimed fuch a right to the crown of France, even to the times of Henry V., who
having found out clearly that no right could have devolved from a woman upon him by the
title of the woman, did, in the prefence of Charles King of France and the nobles of the
kingdom, touching the Holy Gofpels, fvvear that he would by no means, during the life of

De titulo Edivardi Coxitis Maixhice, 8i*

the aforefaid Charles, caufe himfelf to be called, or proclaim himfelf King of France, To fiir
as it lay in his power, being content with the name of only Regent of France and heir of the
aforefaid Charles to the crown of France ; who, having married the daughter of the aforefaid
king, was, by the authority of the Parliament, made and felecTied heir of Charles to the crown
of France, to fucceed him lawfully in the kingdom of PVance ; by virtue of which title, and
not by virtue of defcent from a woman of the houfe of France, our moll: Chriltian King
Henry VI. was after the death of his hither Henry V., and of the aforefiid Charles, anointed
King of France at Paris, and folemnly crowned.

In like manner, alfo, the Duke of Lancafler and the Duke of York, who married the
daughters of Peter fometime King of Spain, would have had a right to the crown of Spain,
if through women any right accrued to their hufbands or their children to the royalty of
that kingdom.

Cap. VII.
Inconveniences ivhich would follow on the oppofitefuppofition.



|GAIN, if through a woman any right to the royalty of England fliould accrue to
the hufband of the woman or to her children, many inconveniences would follow
which are recited in the original, of which a few are inferted here : becaufe, given
that failing a fon to the King of England, he had fcveral daughters, through them or their
children or hufbands there would be made a divifion of the monarchy into fcveral kingdoms.
Again, if an emperor or a king had at the time of his death an only child, a female of the
age of three days, fo great a kingdom would thus be deftitute of king or emperor, at leaft
until the female child were (even years old ; fince a woman cannot be a king, nor can the
fupreme government in temporals over the man devolve upon her by any means, feeing that
the Lord fiid to her, " Thou (halt be under the power of the man and he fhall rule over
thee," After the faid age of feven years, indeed, it is lawful for fuch woman to contract
marriage; which being contraded and folemnly publifhed in the fice of the church as the
laws will in like cafes, ftill fuch hufband will from iuch folemn contracft be able to be called
truly neither king nor not-king, until fuch woman fhall have come to full age ; and fo all the
meantime the kingdom would ftand in fufpenfe without a fupreme governor, and the com-
monwealth would be endangered ; befides many other inconveniences which may follow. Or
if, through fuch marriage, fuch hufband fliould in fuch kingdom be entitled and fluuld be
truly king through fuch woman, then when the woman fliould have come to full aj e, and
fhould be unwilling to abide by her former contract, but fliould have contracfted with another
and have been known carnally by him, by the mere fuch caprice of a woman is loft to the
firft efpoufed the right to the royalty ; and fo he who was before not-king becomes king,
and he who was before king becomes without his own fault not-king; which things feem


., rifjii!

82* De titiclo Rdwcwdi Coinitis Marchice.

abfurd, mod efpecially if we fpeak of anointed kings, fuch as are the kings of England,
P'rance, and Spain, which three only, as is aforefaid, were ancientl)" anointed. Suppofing
that fuch a woman fliould be unwilling to be married up to the thirtieth or fortieth year of
her age, during all that time the kingdom would be delVitute of a king; but if the inha-
bitants of the kingdom iliould in the meantime have taken another perfon for their king,
fhe afterwards having married and having a fon, the firft elec5ted by the people will have to
give way to the perfon efpoufed of the woman, or to his fon, which is ridiculous. Again,
fuppofing the king the hufband of fuch woman to die, the kingdom would in the mean-
while wait without a fiipreme governor through the whole time of her widowhood, perhaps
for the fpace of ten or twenty years or more at the will of the woman. Again, if the woman
fhould live in challity, the kingdom would be without a king all her lifetime and from this
the commonweal of the kingdom would be imperilled. Again, fince compullion is contrary
to the nature of a contra6t by divine law as well as human, the woman may freely take to
herfelf any hufband out of a choice ; who by knowing her will render fuch matrimon) c( n-
fummate and indilToluble, and fo fuch woman might take to herfelf as a hufband fome m; m
vile in race and of the loweft: degree in virtue, a flave or ferf of any inhabitant of the kinj. do n^
making a flave lord fupreme of the kingdom : or Ihe might be efpoufed to fome one wh ) v as
always at enmity with the inhabitants of fuch kingdom, to its perpetual overthrow : or to
fome duke, or count, or king of another kingdom, who would carry ofFall the revenues of
luch kingdom to himfelf, and there fpend them to the impoverifhment and lofs and intolerable
damage of fuch kingdom.

C.^p. VIII.

Showing Argument againjl the aforefaid pretended title, that Philippa was not the daughter

of Lionel. j

raGAIN, in the chronicles and hifi:ories of England is made exprefs, plain, and

„r . xv^ fpecial mention of all the children of ail the tons of Edward III., fometime
King of England, father of the fiid Lionel, that is to fay, who, how many, ind
of what fex they were : but of the iflue of Lionel himfelf, who was Duke of Clarence, that
is, of this Philippa, no mention is made : nay, they are filent even about the ficceflion of
Lionel, as if he had died without iffue or children ; which they would not have been if he
had regarded Philippa as his lawful daughter and heir. Whereof it may be regarded as a
confirmation that neither Edward now ufurping, nor any progenitor of his, defcending as
they fay from the aforefaid Philippa, has had the name of the faid duke, or has iucceeded
in the duchy of Clarence, or bears or bear the royal arms (of Anne) with a difference added
as that Duke of Clarence did, but only the arms (of Anne) of March and Ulfter ; none of

De titido Rdwardi Co.oiitis March ice. S ,*

which, however, they would have omitted, fmce, in confideration of the fplendour of their
origin and honour of nobility, they would have fet no flight value on fuel and fo great
bearings; as the reft of the lords who defeended through women from the faid King
Edward III. have none of them omitted fuch bearings; if this Edward now ufurping, and
his forefathers had been the lawful fuceefTors of fo great a duke in his right through a
woman hcirefs of Lionel. Alfo, if this Philippa had been the daughter and iole ilTue of fo
great a duke fo near to the royal ilock, it is probable that ilie would not have been given i.i
marriage to fo mean a perfon, efpecially defeending from marked and corruptee! blood, that
is, from Roger Mortimer, who for the crime of high treafon committed againll King
l-".dward the fither of the faid Lionel, was openly and judicially convifted.

Cap. IX.

/irgunient proving that lapfe of fuch right, if he could have had any, had been made by legitimate


^^A>M| jlGAIN, taking to be true what is not true — namely, that Edward now claiming
^*y^^i2^^^ the kingdom could have had in right of women any title to the crown of
JW'i^^fe^ England, lb that there had been no cullom or law excluding women from fuch
title, which, however, is not admitted, Edward Earl of March neverthelefs can now have no
right from fuch defcent. For if he could have had any from his parents defeending fi-om
Philipp.a, through whom he challenges fuch right in the kingdom, abandonment of I'uch
right has occurred in feveral ways. Eirft, by lawful prefcription : for Elenry VI. our moft
ChriiVian king, his father Elenry V., and his grandfather Henry IV., have been continuoufly
for fixty years, more or lefs, in peaceable poffedion of the kingdom and crown of England,
and have reigned as kings of England in their times peaceably and quietly, and have borne
the Iceptre of England, have received uncflion and the inlignia of royalty, and each in his
time has reigned fo in quiet, and borne the fceptre, and received undlion and the infignia of
royalty, and has ufed the fame, the fucceflive progenitors of this Edward now ufurping beii.g
prcfent, not contradiding, but filently and expretlly confenting, and in nothing reclaiming ;
although fome of the progenitors of this Edward have confpired fometimes fecretly againft
their kings, and attempted to make trcafons contrary to their fealty, incurring the charge
of high treafon. Since then lav/ful prefcription is a title fufficient to extinguilh a liiht
before acquired, if Edward could have had any title from the faid Philippa, which he never
had, he would be by lawful prefcription fufficiently excluded f'rom fuch right.


,,\ i '■V.'


De titulo Edwaj^cli Comitis Marchicc.

Cap. X.

Confirmation taken from Auguftine " de Civitate Dei," as it is quoted in the book which is calLd

" Compendiuni Morale."

~iir: ITH this Auguftine well agrees, faying that there are four things which approve
„. /S*= the title of any king, and confirm and eftablifli him in any kingdom ; which are
5^-^ Divine permiHion, Ecclefiaftical approbation, Confent of the people, and PolTellion
for a long time continued, and of thefc four none is lacking tu our moll: Chriilian King
Henry. For by the entire confent of all the nobles and commons of th : kingdom, Hei ry
the prefent king, and Henry V. his father, and Henry IV. his grandfather have been for so
long time in peaceable poflefrion of the kingdom and crown of England as fufiicL's to the
lawful preicription of the kingdom, and is fuch a length of time as is required accorduig to
the dictum of Auguftine, and fuffices.

So hir as regards ecclefiaftical approbation it is clear; for without any on or
contradidion the ambafiadors of the faid kings of England and their lawful prof or: have
been admitted and approved in the council of Conftance and of Bafel, and in the court of
Rome generally. All the popes alfo for fixty years more or lefs have tranfmitted to thofe
three in fucceffion, and to each of them as true and lawful kings of England apoftolic
letters, and bulls as well of grace as of conmion juftlce ; have confirmed archbiftiop^ and
biftiops of England at the petitions and dcfircs of thofe kings, and of e.ich of tlicn , and
ordered them to be confecrated. In all which l)ulls or briefs apoftolic they have called them
kings, and each of them king of England, and have confirmed it by their writing ; and now
lately, fince the recognition by the prefent Pope Pius of the ufurpation of the faid L^dward,
in a certain bull of his tranfmitted by the moft holy Pope to our moft Chriftian King Henry,
that is to lay, at the end of November a.d. I461, owing to the pofteftion and righc of his
father and grandfather, that is to fay, Henry V. and Henry IV., the Pope approves the title
of the moft Chriftian King Henry VI., calling him his dcareft fon the king of England, and
thofe who rofe up againft him his enemies, and thofe who died in his caufe at North; mpton
faithful ; he difiipproves alfo the temerity of that moft atrocious legate, as well for aftiftance
and counfel which he furniftied to the king's enemies as for raifing the ftandardof the church
againft him and the army of his faithful, and contrary to the will of the f nie moft holy
Pope, as he himfelf writes to the king's highnefs, abufing the power committed to him by
unjuftly promulgating fentence of excommunication againft thofe who were faithfu' to the
fame king's highnefs, and forbidding due burial to the king's faithful fighting in juft caufe,
and while fo fighting dying valiantly. Moreover, the Pope promifcs in the fame letter to
the king, as loon as it ftnall happen that that moft wicked legate ftiall be recalled, fo to

De titulo Edward I Coxitis Mcwchict. 85'''

Corrr.n and punini him according to his demerits, and according to the demands of his
offcncri, that he llhill Ik- an example for the future to otiiers, left fo hereafter againft the
right! ind the will of the fuprcme Pontiff, whether his own or of his fucceflbr in the fame
•poflolic fee, any in like manner abufe the power of I'eter. Alfo the moft holy pope counfels,
ivA under apoftolic bcnediAion enjoins on the fame our moft Chriftian King Henry to con-
icm! manfully for his right, not fecluding from him the benefit of his right, that is to fxy, that
aJI lui^Iillimen and others lawfully fubjee't to his rule bearing arms againft him, rifing up
agiin(\ him, and rebelling, fhould be, until they rtiall have returned to their true obedience,
held a» excommunicated. Alfo, that the moft Chriftian and moft pious fuldier ot Chnft our
King Henry has reigned by one God from whom is all power in heaven and in earth both
icctpting and approving his reigning appears from thefe things which follow: — Firft, that
when there was lacking to him all pleafure of ruling, all defire of reigning, and all power of
defiring the fame, in the firft year of his age, God had fet him moft gracioufly on the throne
of his father and grandfather ; whom after the feventh year of his age, with the confent of
til the people, I Ic ordained to be folemnly crowned and anointed, not with common holy
oil, but with oil t'orc-ordained by the Lord to anoint him therewith, which his kind patronels
thr nv)ft blclTcJ Virgin Mary delivered to Saint Thomas Archbiftiop of Canterbury in the
phial, ».hicl» even till now is moft caret'ully preferved in the keeping of the fame moft
Chriftian King Henry, faying to him: "The Kings of England who ftiall be anointed with
ihiioii ihall Ik gentle and champions of the church;" by virtue of which uncTion due to
him through the touch of his moft pure hands uncontaminated by any ftain, fuch as the
MooJ of homicide or the hunger of luxury, thofe fick of the king's evil of whom phvficians
halt dtfptiiol <io even to this day receive by the gift of the Lord the defired health,
\o\\vt praife of Almighty (kkI, of whofc grace comes the grace of healings, to the ftrength-
tn»yi in fiJciity to the king of all who behold and alfift, and to the confirmation by the
l.Md'1 ap^'foval of hu rnoA undoubted title. Hut if it be objedted that fuch virtue in the
bct^g oJ' Ihot'c fKk of the ftid difeafc, fmcc it tullows the royal anointing of the hands,
*«Onipin»ea x\ nrgulwly the touch of the hands of lulward as that of our moft Chnlban
King Henry; whence, Ixcaufc fuch curing of the fick with confecrated oil regularly works
iWJl wofka of htiling, it will approve the title of either, or of none of them : \\\ anlwcr ro
Ihrt it u faid, that our one God works not fuch works of healing regularly by any mortal
nuu) »«hoii anoinfwl with fuch confecrated oil, as being by fuch holy unilion ordained lo be
the I-ord'» Chrirt or the VavXi anointed, which none is except he who is duly, regularly and
lawfully anointed. That this may Ix: clearly underftood, it muft be remarked that, as in the
facramcntal anointing of anyone in his ordination to be a prieft anointed of the Lord, among
other things three arc required of neceOity, that is to fay, a due minifter, that is, the biftiop
with intention; a due form of ordination and undion; and due matter, that is, a perfon fit
to receive fuch order and undion ; (on account of the lack of the third of which, a woman is

-., ly. 7c; M'! t

-• ,t

„i i

86^ De iitulo Ed-war di Co?nitis Marcbicc.

neither made, by one believing her to be a man, a priefl: by reafon of the anointing whic"i
flie has received from the bifhop, nor confirmed as a Chrill of the Lord or the Lord's
anointed ;) fo in the royal unftion is required of neceflity, among other things, a perfon du-2
and fit ot right to receive duly fuch benedidtion and undion ; that is to fay, fuch a man as
has among other things a juft title to the crown which he receives or to the kingdom over
which he is anointed, that is, a liege people duly, lawfully, and of right fuhjefted to him ; '
which Edward has not in the kingdom of England, fince he himfelf and all the inhabitants
of the kingdom of England have been and are ftill fubjed to our moil: ChrKtian King
Henry; from which fubjecftion or due fcrvice they cannot revolt or be abfolved on their own
authority or on that of all thofe together who are fo fubjeded to him by any means. For if
fuch undtion and coronation by the Bifhop of Canterbury fufficed to ordaii any one to be ;.
king anointed of the Lord, or the Lord's Chrifi:, then he, at the clamour of infurgents i i
Kent, might at will ordain one other for them as king, even ordain at their pleafure us many
and as great anointeds of the Lord, or Chrifts of the Lord ; which is ridiculous. It i en ains
therefore that, for the lack of a due title to the crown of England, Edward now ufur'iing
will be in no wife by that umftion and coronation ordained to be anointed of the Lord jr a
Chrift of the Lord.

Cai'. XI.

Argumint Jho-iving tJiat it cannot be truly /aid that Edward is chojen by the Lord to be Kin' of
England by a private and Jeer et dijpofition of the Lord.

y^iESlDES by no one is it doubted that fuch a king reigns duly by God, whc


[vl ^^^s according to the law or laudable cuftom of his kingdom, the law of God or of
\^^^ the church not oppofing, is duly anointed, crowned, and holds the fceptte of
fuch kingdom. This is manifeft ; for, in the law of Chrift the Lord is not wo^it to
adign any one's kingdom regularly in any other way : and therefore as after the Lord in
the Old Teltament by a law publifiied immediately by himfelf formed the kingdom
of Judah in the hand of David, entitling the kingdom to him and his lawful fons,
faying, " Of the fruit of thy body will I fet upon thy feat," it was not allowed to the
people of Judah, on account of any fault of the fons of David, to transfer the kingdom of
Judah from his feed to llrange blood; fo neither is it allowed to the inhabitant, of England
or of any other kingdom to transfer the kingdom thereof from the incumbent for the time
reigning according to the law, or lauciable cufiom of i'uch kingdom, to anothe: perfon, and
chiefly on pretext of a private difpofition or elecffion by God of another perfon, provided fuch
cledion or difpofition by God does not make itfelf known openly by manifeft, certain, and
authentic revelation. The force of this reafon lies in this, that the law or laudable cull:om
of any kingdom not contravening the law of God or the Church, is a law publifhed

De titulo Eilwardi Comitis Marchice. 87*

mediately by the Lord and approved, which, by thofe who have from Him power to make
law, is made and approved. It is clear by both arguments that there is no parallel between
our moft Chriflian King Henry and the ufurper Edward on the one fide, and the holy man
David and Saul on the other: firfi: becaufe the kingdom of Judah was never confirmed by
any law to Saul and his lawful fons, nor did he obtain the kingdom of Judah by hereditary
right as our moft ChriiVian King Henry obtained the kingdom of England by hereditary
title; fecondly, becaufe when Saul for his fins was rejeded the virtuous David was promoted
to the kingdom of the Jews ; whereas fuch comparifon would be tranfverfe between the moft
Chriftian King Henry, pious, continent, and honeftly living, and Edward the ufurper of the
kingdom of England.

Cap. XII.

Incidental argument Jhowing the enormous offence of the inhabitants of England who affijled the

ifurper Edward.

'OREOVER, even if this Edward had wilhed to rile up on his juft title, as I e
fays, againft his king that he might caft him down and turn him out of his kini;-
dom ; — then all the liege men fubjcft ot right to King Henry rifing up wiih
Edward contrary to their fealty to the king had offended inexcufably againit the Lord, and
their king himfelf For in the cafe that our moft Chriftian King Henry had held the fceptre
of the kingdom unrighteoufly, as he has held it moft righteoufly, he alone would have finned
in this, and all his liege men fighting tor him according to the fealty by which they were
bound to him, that they fiiould defend their lord againft his enemies, would have fought
virtuoufly and laudably, and would have contended meritorioufly, as it is taken by Auguf-
tine againft the Manichees, and inferted in the Canon XXIII. ; Queftion I. " i^«/V/ culpatur
in bello." 1

Cap. XIII. , I

Argument founded upon that principle of law that by renunciation and contrary aSf lapfe oj

right is made.

I OREOVER after the death of Roger Earl of March, from whom the iforefaid
fy intruding Edward pretends his title, Edmund his ion who fucceeded hi n iii the
earldom of March, in the chancery of King Henry V., as the cuftom is of heirs
after the death of their predecefiors, fued out and prayed livery and poiTelfion of the earldom
of March, and fo received his lands from the hands ot the king as from iiis true natural king
and chief lord ; — and for them as fon and heir of the faid Earl Roger did liege homage and

88* De titulo Eclwarili Comitis Mai'chice.

fealty to Henry V., and by word and deed confcfTed, recognifcd, and approved the {liid Henry
for his true, righteous and natural lord. And afterwards in certain indentures configned as
well with the feal of arms as with the fign manual of the faid Edmund, by which he was
retained as a paid foldier with the aforefaid King Henry V. in his war in his Duchy of
Normandy, he named, affirmed, and recognifed him to be King of England, and his fupreme
and liege lord, and remained during his life his liege and faithful iubjed:. And the fame
Edmund Earl of March after the death of Henry V\ did like liege homage and fealty to
Henry VI. in his moft tender age, as to his king and the true heir of Henry V. Which
Edmund alfo dying without children, the earldom of March came down by hereditary right
to Richard father of the intruder Edward, who in all refpefts did, for the fame pofleffion
and delivery of the fame earldom, fulfil, as Edmund had before done, what was of right by
cuftom of the Court of Chancery. Which Richard alfo having been made lieutenant of
Elenry VI. firft in France and afterwards in Ireland, did, by his writs indented and feuled
with his feal of arms and fubfcribed by his own hand, proniife to the fame king faithfully,
according to the form and efFecft of the agreement, to ferve him as his fubjeft and true liege-
man ; and in both writings named him, by word and deed recognifed and approved him a;
his fupreme and chief lord and King of England.

Moreover, the fame Richard in the time of a certain ficknefs of Henry VI. hin fel
being ordained by the authority of Parliament Protecftor of England during the king's
ficknefs, did, by his writings in that very parliament and after it, frequently recognife, con

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