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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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them to his fervants." The law which we have juftified, forbids to all indifferently, that
any fhould do to another what he would not have done to himfelf. What king ever wifhed
or could wifh this to be done to him, that the beft things for which he had aboured fhould
be taken from him and given to one who had laboured not ? And if he can.iot be fu(pe6ted
of wifhing this to be done to himfelf, and yet can lawfully do this to another, then doth the
law which the Prophet pronounces judge that to be lawful to him (the king), which the aw
of nature forbids to be done. Doth there then arife between thefe two laws implac: bie
war .^ Oh! what a battle awaits the Author who was Ifriving to anfwer the eiueflion
propofed, and finds himfelt driven into contention with the Prophet. Is not the tower which
he has built befet by the enemy .'' Lo ! here comes Samuel the leader of the hofl, and v ith
him the people, more than fix hundred thoufand of them, faying, "We have finned." Ihe
thundering heavens fhake, as if with artillery, the walls of the tower. The Prophet under-
mining them, with his rights of the king, threatens their ruin. The people, repenting of
having afked for a king, if, as they are bufy in doing, they fcale the tow ;r, will deftioy
ail the kings which that law hath created, now contending beneath the tower walls, and ^/ill
carry off their treafures, that is to fay, all their kingdoms. The builder, therefore, of the
tower, ftricken with fuch great calamities, hath condefcended to treat tor peace, and 'hath
addreffed the befiegers as follows : — , i

Ch.-m'. XIII. ' I

Anjwer to the firfi caiife of this zvar. But firjl the Author throws together the
Motives rtWi/ ///£■ Cause.

^1" T is held that the caufes which have kindled this war between us aie two; one
jfpj? hath crept in from the wickednefs of thofe who afked for a king ; ■ t!ie other
l^^^S^v^ confirts in the law which is conceded to kings alone. The firft, even if it have
force to move the ignorant to Ifrife, can neVer provoke the circumfpecT:. For the people
which afked for a king declared to the Prophet that tliey had three reafons for their aiking,
faying, " For the king will be over us, and we fhall be like all the nations, and our king



PART I



] On the Law of Nature. 203




will judge us, and will go forth before us, and fight our battles for us." Lo ! how they
afked for a king, in order that they might be like unto all the nations, that they might be
judged by their king, and that he fhould fight their battles. Now, if it be proved that
thefe three things could not move that people to afk for a king, then did they without
caufe demand a king, and fo the children of Ifrael defiled themfelves indeed with the fin of
ingratitude, but notwithftanding blackened not by their adl the dignity ot king. Where-
fore thefe motives we will firfl: examine.

Chap. XIV.

An fiver to the fir Jl Motive.

j|^T is written in Exodus, chap. 19, that the Lord fpake to the people of Ifr;el, by
■^j- Mofes, the following words : " If ye will hear my voice, and keep my co\ enant,
ye fhall be for a peculiar treafure unto me from among all people : for all the
earth is mine : and ye fhall be unto me a kingdom of priefl:s and an holy nation." Had not
the children of Ifrael then a king, at the time when they afked for a king .'' But not like
all the nations ; for the nations had a man, thefe had God for tlieir king. The former
were the people of the God whofe is all the earth ; the latter were His peculiar people, whom
the Lord, when He chofe all nations, chofe fpecially for I limfelf. What king of the nations
ever ruled his people as this king ruled His peculiar people l Did He not entertain in taber-
nacles this people fojourning for forty years in the vaft folitude of the wildernefs .'' Did He not
feed them with bread from heaven ? Lie fuffered not their garments to be corrupted with age,
nor their fhoes to be worn by fuch long ufe. With a pillar of cloud He protefted them all that
time from the fun's heat by day, and with a pillar of fire from the darknefs and roughnefs
of the defert by night. By the mere fight of a ferpent lifted up He deftroyed the ferpents
which treacheroufly befet them. Yea, that people was a peculiar one unto Himlelf Was
it then well for them to have another king, or to be like all the nations ? And what king
ever fo judged his people as this king His peculiar people ? For at His decrees the earth
fwallowed up the rebels, fire devoured the infiirgents, the ferpent bit tlie murmurers, and the
fvvord of the weak ones brought quick defiruiition upon the defpifers and the idolaters. What
more fhall I fay ? The overwanton this king cut off by the worll: of deaths, and the
chiefs of the fornicators He caufed to be hung upon gallows. Nor did He ever leave a
crime of theirs which He did not moll juftly and mercifully punifh. And what king :ver
fought his people's battles as He did ? Kor He conquered the kings of Amaiek, of the
Amorites, of Bafan, of Midian, of Canaan, of Moab, of Amnion, of the Phililliines, and of
all nations, which were enemies to this people. Nor did He fuffer any kings or nations to
get the better of tliem, except when that people heard not His voice and defpifed Him, or
tranfgrefiing Llis covenant, — the condition, under which, as is written above, He adopted



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in ^: v.rifi-3
'. Lii'ff Off:
iu;i :.fb Me
11.'? ■.■•:w



204 ^^ ^he Law of Nature. [part ].

them to be His peculiar people, offered facrifice to idols. Oh ! how great was then their
fill, to abandon fuch and fo great a king, and to defire to he like as all the nations were who
had only men tor their kings ;- to change king (iod tor king Man; — when the Scripture-
laith: " Curfed be he who maketii his lot worfe ; '" and the prophet Jeremiah : " Curfed is
he who trurteth in man, and niaketh flefli his arm, and his heart departeth from God."
(xvii. 15.) "They have not deferted thee (faith the Lord to Samuel), but me." O, word
to penetrate a heart of il:oiic ! " They have left me, the vein of living waters, their God."
(Jer. ii. 13.) Of a truth well faid the prophet Samuel: "Ye fhall learn and fee that ye
have done great evil in the fight of the T.ord in afking a king over you." And, doubtlefs,
well faid the people : " We have added to all our fms this evil that we fliould afk us a king."



Chap. XV. '~ .

The couclnfio)!, ivliich difproves the firft ohjetlioii.

)ND although that people committed a great offence in aflving for a kim^, his
j^ proveth not that the kingly dignity which they demanded is an unjull: thi ig,
^^^)^© nor doth it condemn the law under which that dignity came into being. V^hnt is
there more facred than the Pontifical office, although it is ot'ten fought by wicked men ? .'Vg;- in,
the aftive life is not condemned, iiecaule he who hath profeffed the contemplative doth wrong
if he abandon It, defiling himfelf thenceforward with the affairs of this world. For in thefe
cales it is the mind, not the condition which is in fault ; for "virtue is the only thing" (as he
Philofopher and Auguftine fay) " which may not be made a bad ufe of." hoc by how m\ ch
the better the thing is which the human mind defires, by fo nmch the worle is the lui of 't, if
it come by it wrongly ; even as Boethius fays, that the greater the dignity is, the morejdef-
picable it makes bad men when they poffefs it. Now, the Lord in this proceeding, although,
when the law of the king was pronounced. He confounded the arrogance of the people, yet
approved and commended the kingly power in divers ways. I'^or he appointed them a king
chofen by Himfelf alone, and not by them, and anointed him with the holy oil and made him
His Anointed {Chrijium), which He never did tor any king before. Moreover, He filled that
king with the tpirit of ftrength and fpirit of prophecy, and changed him into another man,
(as is contained in the 10th and iith chapters of the laid iiril: book of Kings) ; and fo alfo
the Lord did to David and Solomon, and many others, whom He afterwards nade kings
over that people. Long alfo before thefe things He pronfifed by Mofes (Dent x\ii.) that
He would Himfelf choofe a king to reign over this people ; and taught in the fame place,
as fingularly zealous for the kingly power, the rules by which the kings fo to be cholcn by
Him ffiould govern themfelves and their people, and promifed to the king, it he adted thus,
a progeny to lucceed him on the throne. Who, then, reading thefe things can be ignorant



PA



RT I.] 0?i the Law of Nature.



205




that the kingly dignity, thus loved and confirmed of the Lord, is a good and holy thing;
and that the law alfo under which it fird came into being, was all the more facred as it
produced fuch an offspring. The Lord, neverthelefs, in this proceeding rebi ked the folly
and ingratitude of His chofen people, though not the dignity of the kingly height. Wherefore
the dignity of king is good, and the law which inftituted it is good. Wherefore let the
people that afked tor a king, which befieged our tower with its repentance, return home
fatisfied to the full with this difcourfe ; and let the Prophet who thus extols the kingly law
draw nigh, and let him hear what fliall be faid.

Ch.^p. XVL

Anjwer to the jecond cauje of the war above mentioned. But the AutJior firjl dlftingidjl'es the
^ right of a king reigning royally from the right of a ki)ig reigning pulitickly and , oyaily
[politice et regaliter).

V^H ! Samuel, Prophet of t!ie Lord, the Lord did not command thee to proclaim
to the people of Ifrael the law of what king foever they pleafed, but He Himfelf,
^(<i ftirrcd up to that feverity by the rafh requefl: of the j-)eople, fiid unto thee :
"Hear thou their voice, but take them to witnefs, and tell them beforehand the Law of the
King (Jus Regis), not the law of every king, but the law of the king who is to reign over
them." Nor didft thou, the Prophet, fet before them the rights of a king in general, but
following faithfully the command of God, thou didft fay to the people: " This is the law of
the king who is to reign over you. He lliall take your fons and fet them in his chariots,
&:c." St. Thomas, in the book above mentioned, which he wrote to the king of Cyprus,
mentioning the various kinds of government which the Philofopher teaches, commends
efpecially for his own part the regal government and the political government [dominium
regale et dominium politicum), which kinds of government /Egidius Romanus defcribing
in his De Regimine Principum, faith : " That he is the head of a regal govern-
ment, who is fo according to the laws which he himfelf lays down and according to his
own will and pleafure, but he is the head of a political government, who governs the citizens
according to the laws which they have eftablifhed." But that there is a third kind of
government, not inferior to thefe in dignity and honour, which is called the political and
royal {politicum et regale), we are not only taught by experience and ancient hiftory, but we
know hath been taught in the doftrine of the laid St. Thomas. For in the kingdom of
England the kings make not laws, nor impofe fubfidies on their fubjecfts, without the confent
of the Three Eftates of the Realm. Nay, even the judges of that kingdom are all bouna
by their oaths not to render judgment againlt the laws of the land, although they fhould have
the commands of the fovereign to the contrary. May not, then, this form of government be
cal led /)o//V/Vrt/, that is to fay, regulated by the adminiftration of many, and may it not alio delerve



r ':».'(









•I'-! "I



2o6



On the Laiv of Natiwe. [



PART



to be named a royal government, feeing that the fubjeifls themfelves cannot make laws with-
out the authority of the fovereign, and the kingdom, being fubjeft to the king's dignity, is
podeired by kings and their heirs fucceflively in liereditary riglu, in fuch inanner as ni
dominions are poflefied which are only politickly ruled. And in Roman hiftory we are
taught how that people firft tried the monarchical form of government under feven kings ;
then how, becaufe they could no longer endure the indolence, luxury, and fpoliation of their
princes, fhaking off the kingly yoke, the profcribed Tarquin their feventh king, and the
kingly rule together, and afterwards fubmitting themfelves to a political form of government,
they were ruledfor more than five hundred years underConfuls and Diftators, regulated by decree
of the Senate. But at lail: Julius, being one of the two Confuls, impatient of power fliared
with a partner, feized for himfelf alone the monarchy both of the City and the world ; whenct
from that time he thought to live like a king, yet would not be dilHnguifli :d by the name
of King, which was hateful to the Romans, but chofe rather to be called Emptror, a title which
certain of the Conluls when Dictators, before affecfted. But he on account of this arrogimce
of his being at lail put to death, Oftavianus, a man of the mildell: character, being raifed to
the monarchy of the whole world, governed it not royally only but politickly by advic ; of
the Senate ; and in like manner did fome fucceeding Emperors, whofe government St. T.ioi las,
in his book above mentioned, calls royal and political — royal, becaufe their decrees wt re law
tor all their fubjecfts, but political, not becaufe they always confulted the Senators, for m u:y
ot the Emperors to tlieir own damage defpifed their advice, but becaufe they governed the
commonwealth for the advantage of the many, namely the Romans, and becaufe the Roman
empire did not defcenci to their own heirs, as kingdoms are wont to do. Thus alfo the child -en
of Ifrael, as that Saint (Thomas) fays, before they afked for a king, were politickly govt rmd ;
whence their government was political and royal ; political, becaufe the Judges under whom
they were ruled adminiftered everything for their common advantage, and nothing for the
individual advantage of them, the Judges; (whence Samuel, tiie lad of the Judges, offered
himfelf before Saul, the firil king of the nation, to anfwer for everything that he had ilone
in the office of Judge; and how great was then the affembly of the council of that people
the Book of Numbers, i6th chapter, reveals, feeing that it is written that two hundred' rnd
fifty, who were called by their names, were in council in the fedition of Corah, in v hich it is
evident that none were engaged but thofe of two Tribes, Levi namely, and Reuben, by
which it may be conjeftured that there was a great multitude in that council of all the Tribes
of Ifrael;) and their government was a royal one, becaufe the King of all kings had ruled it
as His peculiar kingdom. In this kingdom, before they had obtained the kint , it was not
lawful for any man to do to another what reafon would not fuffer him to willi done to him-
felf. No one could take away the lervant or handmaid of another againfi: his will, nor give
another man's field to his fervants, as the Prophet fays it was the king's right to do. Thus
the law of the king which the Prophet predifted was not then the law in that kingdom,



PART I.] On the Law of Nature.



207




even as fuch is not the law in any kingdom politickly governed. Wherefore the Prophet
did not fay fimply and precifely that the law which he promulgated was the Law of the
King {Jus Regis), but he faid relatively that it was the law of the king who was to rule
over the children of Ifrael, as if he had Laid : " This ftifF-necked and ungrateful people,
which knoweth not its own good, fhall not henceforth be ruled under a political form of
government, nor under a royal and political, as before, but fliall be governed dominio tantum
regali, by which, as by hook and bridle, its obftinacy fhall be held in."

Chap. XVII.

Next he compares the Law of the Kbig with the Law of Nature, and /hows .
the difficulty of this difcuffion.

"^JFE. have now related, in fonie fmall degree, the ftrife which was confidered to exift
^ between the law of nature and the law of the king, fo that there now remains not
^f^ the whole law of kings, but only the law of a king ruling by mere kingly power
to compete with the law of nature. But this Jus Regium, fighting as it does under the
greatelf princes of the world, and trufting to their protc^lion, would feem able to engage in
no fmall combat with the law of nature. For St. Thomas, in his book above mentioned,
feems to think that the more nearly any form of government refembles the Divine govern-
ment, the more excellent it is; even as all things are better the more nearly they approach
to the Divine likenefs. From which truth the Saint clearly deduces, that as the one (jod
governs all things folely as He wills, fo every kingdom is better governed by one man of
the bell charader, than by many rulers. But fuch a government can be no other t!ian that
of a king ruling with abfolute power, whofe law confilfs of fuch rights as the Prophet
predidled. Wherefore it follows that that law is not only not to be blanied, but deferves
to be adjudged the beft, feeing it is the law of the bell ruler, and moll refembles the law of
God, who governs all things atcer His own will. Doth not then the law of the king not
only make a ftout defence in this confli(::t, but doth it not put the law of nature in fome
danger, inafmuch as it afferts for the kingly law in this refpedt the foremoft place among
all laws ? What punifhment could follow to the people of Ifrael upon the promulgation
of fuch a law? or with what terror could the beif ot laws, inider the beft of kings, infpire
them? Could the law of nature condemn the law which the Lord of Nature eilablifhed ?
Nay, if that had not been a fupremely good law, the good and all-righteous Sovereign vould
not have fuffered His peculiar people to be governed by it. But, on the other hand, wh';ii
that people, chofen by the Lord from among all peoples to be His peculiar kingdom, and
moft tenderly brought up by Him, as an only fon by his father, and ruled by laws which
He, in His great kindnefs, gave for their fingular rule and favour — ungratefully making
light of thefe things — abandoned Him, even as He Llimfelf complained, and defired to be



'1 ■"■ /<:■])



' /. J 1.1



2oS On the Laiv of Natm'e, [part i.

again like ail the nations, and to have a man for their king to judge them, as all the nations
then had, even as it is contained in the eighth chapter of the firft book of Kings aforefaid ;
when the Lord, ftirred up to anger, commanded the heavens to affright them with rains and
thunder, and bade the Prophet bear witnefs and declare unto them the law of the king, and
that not of every king, but of the king who was to reign over tl:ei)i, with whom He was
offended, as though in order that they, affrighted by the feverity of that law, might defift
from their ftupid and flioit-fighted requeil, can this law, which the Lord fo rigoroully
affigned to an ungrateful people, be called the beft of laws, or point to any good for then ?
What judge awards good things to him who deferves evil, feeing that every juft arbiter
recompenfes good to the good, evil to the evil ? Could that people be governed by man
under a better law than that under which the Lord had ruled them before ? or can that be
pleafing to the fufferer which is inflifted upon him for his iln ? h'or tli.'ir fin was then at
the door, when they were forced to fay, as is above related, " We have abided to all our .ins
this evil in afking us a king."

Yet that a law is bad, which the Lord commanded not only to be publiflied, Jut to be
written for a perpetual memorial, it is monftrous to think. Well now, is not h( who
handles thefe things toffed about as by (lormy waves, like a fhip in a troubled fea ? For if
he fays that the law of the king is the aforelaid moi't: excellent law, he finds fault wit'i i divine
Providence, which gave that law to a finful nation for its guilt ; and, on the other ha id, if
he condemn it, may he not be found to have condemned, at the fame time, God the author
of it ? Lo ! what llraits on every fide ! What courfe then is to be taken, except th;)t the
Author purfue with modeily that negotiation, to which he above condefcended, by N/hich
perchance he will find fonie confolation in this his critical fituation ? With this intention he
thus addreiTes the Law of the Kins.



HERE FOLLOW CERTAIN REPROACHES AGAINST THE '
FOREGOING COMPARISON. ;

Chai'. XVIII. ' ,

The Law of Nature zvorked out the kingly Jlation in its commencement, a/though the unjujl
made the firft beginnings of that rank.

HINK over again, I pray you. Oh ! Law of the King, and confide in thy mind
how thou didll: hear above mofl: truly declared, that the kingly power took its
origin under and from the law of nature, and by it always was and is regulated ; to
which it is no objecftion that wicked men began that power ; for although the Jews gave Chrift




PART I



.] O71 the Law of Nature. 209



to death, God the Father alfo delivered him to death by their means; but the Jews did it for
envy, the Father for pity; and in like manner although the unjult began the kingly dignity tor
ambition, the law of nature began it for man's good by means of thole unjuil: -ihcy by fm, the
law by a molT: righteous working, fo that in one and the fame aft not only the virtue of julHce
but the malicioufnefs of fin contended in the works of nature's law. Thus, alfo, the iniquity of
Cayn firft for avarice fet up landmarks in the earth, and the pride of Ninirod firll ufurped
dominion over men, and yet nothing better or n\ore convenient than thefe things could have
beflillen the human race, inafmuch as if all things had remained common as bctore, and there
had been no dominion over men upon earth, public affairs after man's fin would have been
managed very ill for man, and for want of jufi:ice the human race would have torn
itfelf to pieces in mutual flaughter. F'or "the Gentiles," as the Apoil:le fays in the Romans,
chap. 2, " although they have not the law do by nature the things which are of th : law,
and not having fuch a law are a law unto themfelves, who fhow the work of the law v ritten
in their hearts." But as to the manner in which the nations began the kingly power by
means of the law of nature, or rather in which the law itfelf began it by means of the
nations, St. Thomas, in the ifi Book of his treatife, De Regimine Principum, is believed
to have truly taught when he faid, that among all things which are co-ordinated into
one, fomething is ever found which is naturally regulative of another ; as in the univerfe
of bodies, the earthly bodies are regulated by the firll: body, that is tlie heavenly, and the
fame are governed by the rational creature, and man's body by his foul, and the parts ot the
foul, as the irafcible and the concupifcible, by the reafon, and all the members of man's body
by the head and the heart. And as it is the nature of man to be a focial and political animal,
living in a multitude, (as in the fame book is clearly proved), and as everyone naturally provides
and contrives for his private and particular interefi:, the multitude of human fociety, it it were
not ruled by tome one who would take charge of it, would wafte away and perilh, more
efpecially fince man's nature has been fpoilt by fin, by which it has been made prone to go
wrong. Hence, alfo, fince art, as the Philofopher frys, imitates nature fo far as it can,
nations have conflituted rulers for the multitude of their focieties, jull as nature in every-
thing made up from the union of divers things, contlitutes fomething to rule, and the
power of thefe rulers, becaufe they rule (region) others, the nations have called nntonomatici:
the regal {regiam) dignity and power. Thus did the kingly fupremacy get its origin and
being, although under or from unbelievers, yet naturally and by the inftitution of natu-es
law. And inafmuch as that which is always good and equitable is called right {jus), (ff. De
Jullitia et Jure.) the inrtitution of the kingly power, by whomfoever it was made, -vas
righteous [jujia], feeing it is held to be always not only good but equitable. Holy .Scripture
alfo fuffers us not to doubt but that the Lord Himfelf ratified it, feeing that He delegated
angels for the protecflion of the kingdoms which the nations formed, as of the tnan whom He
had created, as is evident tVom the 9th chapter of Daniel; and although it hath been (ul-

J .E E.




2IO 0?i the Law of Naturae. [part i.

pefled by fome that the Princes of the Grecians and Perfians who are there mentioned wer;
bad angels, yet Vincentius affirmed in his De Morali Inflitutione Principum, that St.



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