John Fortescue.

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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^r^fes^ l^w, " I came not to deftroy the law, but to fulfil." And whatever other laws
there are, called human, they are either by this law ertablillied, or by its authority, as fup-

I. .c c.

1 .'. '\

194 0?! t/ie Law of Nature, ["part i.

plenientary to it, they fubfift. For laws put forth by man are all either Cuftoms or Statutes,
as all that crowd of laws which in the Laws of the Emperors are recited under fo many names,
luch as the placita oi princes, /cvWi^/n conJiiltd,plehijcita^ and fimilar laws of civilians, of the
army, of the navy, of trade, and the like ; inafmuch as all thefe have been created by cuftom
or conititution of man ; concerning the excellence of which, and the dignity of this law, the
lacred Canons inrtruet us in thefe words: " Now in dignity, the law of nature is fuperior to
cullom and ftatute; for what things foever are either recorded in cuftoms or comprehended
in writings, if they be adverfe to natural law, are to be held null and void" (viii. IJi. Co.
i^Q jure) ; and not only does all that Diftinftion fupport the fame opinion, but all the
fubfequent Dii^inftion, viz. the ninth, fupports it alfo. Moreover, in the fifth Diftinftion,
firft chapter, we have it thus concerning this law; "Now let us return to the difi-'erence
between natural law and the reft. The law of nature holds the firft place in time and dignity
among all ; for it begins from the beginning of the rational creation, and varies lot by time,
but abides immutable." And upon this text there is an approving Glofs, which fays, " If,
anything be contrary to natural right, that thing is wrong, fince as againft the law of nature
there is no difpeniation," adding that " that law is natural equity."

To this law of nature are auxiliary all fuch Imperial laws as are commonly called Civil ;
and all rights of kings alfo, if they comprehend anything beyond ftatute and cuftoin (which,
as is here fhown, are fubjedt to this law), have got it as it were on loan, not from the prince's
authority, but folely from the force of this law, which proclaims itfelf common to all tiie
powers of the world. Oh, how great, and to be extolled with all praife, is that Law of
Nature, to which all human laws are obedient, which even the Canons, I will not fay as I
faid above, extol, but declare to be a law Divine ! And of a truth it is Divine \ for, as St.
Thomas fays, it is nothing elfe than the participation of eternal law in a rational creaturt. :
under it the power of kings took its beginnmg ; by its authority and force alfo all juft kings
have reigned and do reign. Notwithftanding, left the Writer ftiould feem to be making the'
barren fertile with mere words, it behoves him to explain which among juft kings hasi
reigned under the fole law of nature, and alfo which firft attained the kingly eminence ;
fince experience increaies not a little our confidence in argimients, and Varro fays that ,
" that is an excellent manner of teaching which adds examples of the thing you are about to
tell." For if the law of nature produced one juft king, it is not to be doubted but that it
could have produced many ; and a bad tree cannot bring forth good fruit ; therefore by
the fruits of this law we fhall the more fully acknowledge it, as the Lord lays, " I'y their
fruits ye fhall know them." Again, if the firftborn among kings confefTes himlelf to be the fon
of this law, he will thereby fhow that his brothers, later born, are its fons likewife, or will
rightly fay that thefe are not his true kinfmen. Therefore, what Holy Scripture, or the
holy Dodiors teach concerning thefe, it now becomes us to examine.

PART I.] On the Law of Nature.


Chap. VI.

AlekliiJ'edech tvas made King under the Law of Nature o>ily.

"^'^ N the time of the patriarch Abraham, which was the beginninir of the third age
5^ of the world, Pharaoh was king of Egypt, Abimelech was king of Gerar in
Paleftine, and there were many other kings with diftinft kingdoms, like thofe of
modern days, as the hook of Genefis copioufly informs us, where, in the fourteenth chapter,
we read, that after Abraham returned from the fight in which he had conquered four kings,
who before vanquifhed five kings of the Sodomites and of two other places, to the valley of
Salem, which is the Valley of the King, there met him the king of Salem, concerning whom
in the fame place it is thus written, " But Melchifedech, king of Salem, bringing forth
bread and wine, for he was prieft of the Moft High God, blelTed him, and faid, Elefled be
Abraham of the I figh God, who created heaven and earth, and blelled be the High God under
whofe protection thine enemies are in thine hands; and lie gave him tithes of all." The
city of Salem was afterwards called Jerufalem, and the valley above mentioned was the way
to Jerulalem, as Jofephus fays in the firft book of his Antiquities. That all thefe things
were faid and done at a time when the human race was governed under the law of nature is
not to be doubted. Oh, how fruitful are thefe words of Genefis in facred graces, and in the
rudiments of our religion ! The Sacred Hiftory is not content to honour this juit man with
the title of King alone, but, for the greater-beauty and glory of his eminence, it difplays him
refplendent with the dignity of prieflly exaltation, by naming him Prieft of the Moft High.
Oh, what a facrament of a greater ficrament is here ! when the prieft of God, crowned with
kingly honour, ftill living under the law of nature, ofters bread and wine to the vidor !
Who could have been found more faithful, more juft, or holier than this man, who having
learned of God by the law of nature alone, (which yet the Moft High left not without
grace,) confefTed that Pie is the Creator of heaven and earth, and that lie fo governs the
aftions of men that only by His grace could vi6tory come out of the exploits of the greateft
war. Did not this man deferve that the great Patriarch, by giving him tithes, fliould not
only prefigure but initiate man's duty to offer tithes to priefl:s, or rather to God, as a per-
petual facrifice ; which thing his grandfon Jacob alio promifed that he would do of all things
which God had given him (Gen. xxviii). But thefe things happened not but in the /alley
of Salem, which is the way to Jerufalem, where afterwards, not in a figure but in realit/, the
true facrament flowed forth in the time of the law of grace. Flave we not now fo md a
king reigning jull:ly under the law of nature, whole empire confifted in no human law, fince
at that time there was none other law tlian the law of nature ? whom alfo not only Scripture
here affirms to be the prieft of the Lord, but the Prophet alfo confirmed as rightly filling
that ofBce, when he faid of Chrift, " Thou art a Prieft for ever, after the order of Melchife-


196 0)1 tJie Law of Nature. [part r.

dt!ch." For he faid not " after the order of Aaron," who had been conflituted High prie<l
in the time of the huv given (by iMofes), but "after the order of Melehifedech," who was
made prieft in the time of the hiw ot nature.

Lo how highly the law of nature iy here extolled ! whence afterwards it grew into a
cuftom to call juft men priefts ; wherefore Jethro too, Mofes's kinfman, was called the prieft
of Midian (Exod. xvlii.); and the Civil Laws, when they define jus, fay that it is " the art
of the good and the equal, on the ftrength of which they call us Priefls." It hath now, if I
am not millaken, been clearly fliown, that the law of nature did juflly conlfitute a jull king,
whom Divine grace fent not away empty. Wherefore we have rightly weighed the power
of the ffid law, nor can we doubt but that it can produce like effed: in all other cafes, if men
be willing to fubmit themfelves to it ; feeing that the Canons referred to decide it to be in
force for ever. Neverthelels, (incc we pi-omiled above to inquire who wa; the lirll; king
under this law, which Melchiledcch is thought not to have been, the bond of our promife
requires us to examine more certainly what tlie Scripture fiith touching this matter.

Chap. VII.

Nemhroth was the firft voho had a kingdom, a>id yet lie was not a King.

"^^mEFORE the above-mentioned nine kings, of whom four conquered five the
C^ hifi:ory of Holy Scripture calls none by the name of King. Yet in the tenth
^^3%;^^ chapter of Genefis it is thus written, " And Chus begat Nenibroth ; he began
to be a mighty one in the earth, and he was a mighty hunter before the Lord:" and a
little after it is thus written, " And the beginning of his kingdom was Babylon, Aroch, and
Aroth, and Caloniie in. the land of Sennaar. Out of that land went forth AlTur, and budded
Nineveh, and the ilreets of the city, etc." Lo here have we found the firll: potentate and
the firfl kingdom ; but as yet we have tlifcovered no man reigning, or marked with the name
of King. And yet that kingdom was the kingdom of the mighty one Ifimfelf', (\\\<ni the
Scripture faith that " Babylon was the beginning of his kingdom." But the pofi'eiTor of
this kingdom was not worthy of the name of king (rev), feeing that a "rex" is lb calk|il,
antonomatic'i, from ruling, {Ji regendo), and " ruling" hath its origin from the rule of right {a
re£lo) ; whence he alfo who rules not rightly hatli no right to the name of king (;va ),
although oppreding the people by his power he feem to reign, like Nembroth, " who was
a mighty hunter before the Lord,'' that is, an oppreffor and deflroyer of men ; even as
hunters are deftroyers, and not rulers, of wild beafls ; vvhich Nembroth alfo /Uiguftine,
in the fixteenth book of the De Civitate Dei, calls a giant. But fuch an one )s nothing
but a hunter in the fight of God, although, in the fight of man, one who opprefTes and
doth not rule may feem to be a king (;v,v). In like manner alfo a tyrant, although he
hath been eftabliflied as king, yet when he hath cait away the cares of kmgfliip, and learnt

PART I.] 0)1 the Law of Nature.


the manners of a Nembroth, puts off the name of king, and puts on that of tyrant. Wliere-
fore, when the people rife againfl; fuch an one, they are wont to fay that tluy have not (lain
a king, but, in their own defence, a tyrant.

Thus did the people of Rome in killing Nero ; thus alfo the Senate fiid that they had
jurtly defended themfelves when they made an end of Domitian ; whence Tully fays, in
the third liook of the Offices, that to kill a tyrant ieems no crime to the Roman people,
who of all noble deeds confider that the noblclt.

Neverthelefs, although the death of thefe and fuch like men came opportunely for
the world, it was not lawful for any one to do this thing, leaft of all for their fubjeds, to
whom many times, as required by their own deferts, the Lord appointed wicked kings,
faying by his prophet Ofee, "I will give them a king in my fury," and calling Nebu-
chadnezzar, the opprelTor of the people of Ifrael, his " fervant" (Jer. xxv.). Neither ( oes the
Law, which fays in general, " Thou {halt not kill," fuffi;r any man to be flain without judg-
ment. Yet let the tyrant, whofe death is good for the people, yea, a thing to be prayed
for, beware left they ilay him, fince Homer fays that " avenging wrath is fweeter than
honey ;" but let the people fear to kill their king, although a tyrant; for though like Nem-
broth he be not worthy of the name of king, yet the kingdom is his, as that of Babylon,
which Nembroth poffefred, was faid to be his; and though it muif needs be that offences
come, yet "woe unto that man," faith the Gofpel, "by whom the offence cometh.'"

Truly, however, to thofe who rightly look into the matter, this which St. Thomas fays,
" The dominion of tyrants is not wont to laft long," contributes not a little towards the
patient enduring of oppreffors. Whence Ariftotle, in his Politics, reckoning up many
tyrants, proves all their reigns to have been brought to a fpeedy end ; wherefore alfo that
grave and moral Seneca, commending his opinion, concifely alTerts, that the greater the
vehemence of the florm the fhorter time it lafts.

Thus have we now diicovered the firll kingdom and its ruler, but we have not yet found
any one to whom firll a kingdom came, or who was firft called King. And fince Holy
Scripture, which difclofes his kingdom, hath not condefcended to record his name, it is
believed that his charaifler was not as worthy of memory as his dominions.

Notvvithftanding, as we have promifed to fearch out what was the name of the firft king,
and as Holy Scripture hath pafled it over in filence, and as Diodorus Siculus fays, in the firft
book of his Ancient Hiftory, that fome hiftorians do not hand it down, we will endeavcur to
make it out from one ot the Saints.


1 '! :


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9^ 0)1 the Law of Nature.


Chap. VIII.

Belus was the fir ft King, Jo named, and reigned in Babylon, the capital of the AJfyrians.
(My^AlNT AUGUSTINE, in the fixteenth book of his De Civitate Dei, chap, xvi .,

ftith thus, " In Afia prevailed the domination of an impious llate, the head of
which was Babylon, which earthborn city hath a moll fitting name, that is,
Confufion. There reigned Ninus, after the death of his father Belus, who had rirft reigned
there for feventy-five years. But his fon Ninus, who on his father's death fucceeded to the
kingdom, reigned fifty-two years. He was in the forty and tliird year of his reign when
Abraham was born, which was about the year one thoufand and two hundred before Rom;,
like another Babylon in the Weft, was founded." See how, although N jmbroth was the
firft who poflefTed the kingdom of Babylon, yet this writing fays that Belus was the firft who
reigned there. Hence it is one thing to have a kingdom, as Nembroth the firfi: tyrant had
it, and another thing to reign, as Belus the firfl: king, after whatever manner, dia reign.
Thus have we difcovered the firft King — (though not being ftrong in his morals 1 loly
Scripture condefcended not to commemorate him) — Belus by name, whom Vincentiu ; ii his
book De iMorali Inftitutione Principum, calls Belus Nembrothides, whofe fon Ninus founded
the city ot Nineveh, and honoured it witli his own name, whence from Ninus it was ca led
Nineveh ; although the hook of Genefis iays that out of the land of Sennaar went AlTur,
and builded Nineveh ; for, a long time after its firft building, Affur, who was of the feed of
Shem, poflefted the kingdom of Nembroth, who was of the feed of Ham, and built, that is
enlarged, Nineveh, and his kingdom was called the kingdom of the, whic i v as
long the greateft kingdom of the world. (St. Auguftine, Book xvi. chap. 3.)

Ch.ap. IX. ,

// is doubted whether before the Deluge there were kings in Enoch, which Cain built.

■ . I

OW, before the Deluge we do not read that the human race had any king. Yet,

Auguftine (De Civ. Dei, Book xv. c. 20), fays that it is poftible that Cain and

his fons, who are named in Genefis, were kings of Enoch, yet does not himfelt

affirm that they in facfl were fo. And if they were — and although many evil me \ reigned

in the beginning of kingdoms — yea, if thefe very evil men were the firft beginners ot thefe

fame kingdoms, all this is no hindrance to what we have faid : — namely, that kingdoms were

firft inftituted under the law of nature. For the fratricide Cain himfelf was the firft to found

a city, even as the fratricide Romulus produced the city of the Romans; Cain alfo firft

taught men to fow the earth, and his fons the art of working in iron, and the fciences of finging

PART I."] On the Law of Nature. 199

to organs and building houfes ; and, as Jofeplius fays, Cain firft caufed weights and meafures
to be made, and fet up land-marks for fields. And, although he and his ions were the word:
ot men, yet what coukl be more convenient for man, what more iull and hoi, ell than thofe
things, which from them took their beginning ? Do we rejeft the medicine which a wicked
phyfician exhibits to us ? Do we condemn the truth which an infidel proclaims to us ? Cain
and his ilTue the Lord enveloped in the waves of the Deluge, yet the good inventions he
extinguiilied not in the waters, but enriched his beloved jull: ones, whom he refervcd from
the waves, with the inventions of thofe evil ones whom he drowned. What good thing has
ever perillied by means of the moll: finifhed wickednefs ? Doth not Solomon fay in Eccle-
fiartes, chap. 2, " To the finner God hath given affliilion and trouble above meafure, that he
may heap up and gather together, and deliver up to liim who hath pleaied God." Oh ! how
great is the weight of Divine power, and how great is the goodnefs ot His Providence,
which is Eternal Law, that not only the good things of the good man, but alfo thr- good
and bad things of the bad man all work for the advantage of the good, and that
no impious man hath ever perpetrated anything which is not turned to the glory
of the univerfe ! Thus good things praife God, and all evil things praife Him alfo,
which, though not fo ordered by men, difpofed by God's judgment, work out His honour
in due order, confer good things upon the good, and beftow jullice richly upon the bad.
Thus nothing remains in the world that fmgeth not with the Angels — " Glory to God in the
higheft." The Lord not only commanded but approved of the royal dignity, and the infti-
tution of it; fee Genefis, chap. 17, where Lie faid to Abraham — " Kings fliall come forth
from thee" — and the 26th chapter of the fame, where Lie faid to Ifaac (ojournmg in the land
of Palefiine — " For to thee and to thy feed will I give all thefe regions, fulfilling that which
I promifed to thy father Abraham," and the 36th chap, of the fame, where the Lord faid to
Jacob, "Kings fhall go forth from thy loins, &:c." Was not that a good thing which the
Lord fo diligently promifed to t^efe Patriarchs, as if to crown the heap of all the benefits
with which Lie had fo copioufly endowed them, in decreeing that a people acceptable and
peculiar to Himfelf fiiould be begotten from them? In like manner the Apofl:le approved of
the royal fiate, when he enjoined all to obey the king as fupreme. And feeing that all men
are fo much the better as they are more like to God, who can be better or holier than the
king, who as a ruler of men is like unto God, who ruleth all things .'' This we may gather
from the opinions of St. Thomas, in the book which he wrote to the king of Cyprus Con-
cerning the Government of Princes.

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On the Lcnv of Nature. [part i.

C H A P . X . • '

Here the AutJwr Jheiveth that all Jupenur kin^^doius were eftablljlied under the Law
of Nature, and ought to be ■pojfejj'ed by her autlwrity.

I HER F. FO R E the kingly power is good, altliough it were begun by wicked men ;
and, whether it originally arofe and burll forth before the Deluge, or after the
Deluge, yet it took its beginning under the 1 ,aw of Nature only. For before the
Law of Mofes there had been no other law, except certain cuilonib introduced by men in certain
territories, which could not have begun the kingly dignity, fince cull:om only grows from
repeated a6ts and length of time, and fo could not have been the origin of the rank of
king; and the conftitutions of princes, which only bind fubjee'ts, were not cr-pable of coniVi-
tuting the kingly height, which knows no fuperior, efpecially as tliefe had their origin from
the time of Mofes, as it is written in the feventh Dillinftion, firft Chapter. Nor do the
ordinances of men, by which fome of them are railed into kings, deferve to be called :or,fti-
tutions, but rather atls ot the law of nature. The law of nature, therefore, alone eflablifl'.ed
the tirlt beginnings of the kingly elevation ; wherefore, it would be fully to hefitate about t lat
law having been capable of governing the fame dignity, feeing there is lefs virtue in govrrn ng
than in creating ; nor do we doubt but that it did govern that fupreme rank after J av ng
founded it, inafmuch, as there then exiiled no other law which could poilibly govirn it.
Moreover, that the law of nature is forever able to do the fime the facred Canons do not
allow us to doubt, which proclaim this law to be perpetual and incapable of change. Ai d,
if any cuftom hath grown into ufe, which for the pofTedion of kingdoms fuperadds any-
thing to the law of nature, if fuch matter of fupererogation be repugnant in any refpidt :o
the law of natin-e, the Canons adjudge it to be annulled, and that it is not to be called a
cuftom, but a corruption. Wherefore it is by the Law of Nature alone that the queijion
propofed can be terminated, and by it only can every right of royalty be difculTed in any
kingdom whatever which knows no fuperior. Was it not then rightly written above, that
the kingly power took its beginning under this law, and that all kings of the earth have
reigned, and ftill reign, under its guardianfhip, thofe, I mean, who reign juftly and conftitu-
tionally (civiliter), and who have no fuperior. For this Law is the mother of ali human
laws, and if they degenerate from her they deferve not to be called laws. What fhe adjudges
isjuft, and what fhe condemns is condemned by every human law. May fhe therefore,
come to us as our Wifdom ; may (he take her feat as our Judge !



PART I.] On the Law of Nature.

Chai'. XI.

Firft Obji-aton.

lUT if a man fliall have raifed a towtr, although of the rtrongeft, and fliall not
have furniflied it infide with the ftrength of brave men, his infulting enemies will
undermine and proftrate that tower, or, their aHault not being repulfed, they will
climb its walls, and ravage, and carry away all the treafurcs hid within it. Kvcn fo, the law
which we have proved to be fo firm, if it be not defended againfl: the infults of objeftors, by
a ifore of right reafons laid up within, will foon be undermined and fall into ruins from ihe
very foundation, or elfe the enemies climbing up upon it by the might of their ^rength, vill
fpoil it of all its treafure. If therefore the tower which we have built, 1 mean the law of
nature, feem now to be befieged by envious foes, before we go farther in this Treatife we
will florm their trenches as beft we can. It is written in the firft book of Kings (Samuel),
in the 12th chap., that when upon the petition of the people of liVael a king was firft fet up
for them, the prophet Samuel faid to the people : — "I will call unto the Lord and he will
fend voices and rain, and ye fhall know and perceive that ye have done great wickednefs in
the fight of the Lord in afking a king over you." And after a little, and after the voices
and the rain were fent by the Lord, it is written in the fame place, tliat " the people feared,
and faid unto Samuel, Pray for thy fervants unto the Lord thy God, that we die not, for we
have added unto all our fins this evil to afk us a king." Thefe words fhew that the chofen
people finned in afking them a king ; for this the Prophet afterts ; this the people confeis .
and the terrors of Heaven, fent to ftrike the finners with the fear of death for their oftence,
confirmed it. If then it be fo heavy a mifdeed to afk for a king, how much heavier a i\n is
it to make a king. That people only afked for one king, the law which is praifed above
hath conftituted a thoufand kings. How many kings were there in the time of the Law
of Nature, when at the very exordium, fo to fpeak, of the Law given (by Mofes) Jolhua,
the firft of the Judges, ftew thirty-one kings in the entering in of the land of Canaan, the
greater part of the land being hardly got in poiTeOion, as appears from the I2th chapter
of Jofhua? Can a law be proclaimed to be good which hath worked fo much evil.? If to
afk for a fingle king be condemned with fo heavy a fentence, with how much heavier a
judgment will a law be vifited which conftitutes fo many kings ?


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202 On the Law of Natiwe. [part i

Chap. XII.

Second ObjetJion.

■"OREOVER, in the 8th chap, of the aforefaid book of Kings (Samuel), Samuel is
commanded by the Lord to declare unto the people the law of the king who was
about to rule over them, and he among other things fays this, " Alfo he will
take your fields and your vineyards and oliveyards, even the bed of them, and will give

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