John Fortescue.

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

. (page 29 of 87)
Online LibraryJohn FortescueThe works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) → online text (page 29 of 87)
Font size
QR-code for this ebook


firegory wrote that they were good angels. Again, it was no fmall mark of approbation
of heathen kingdoms, that God commanded Elijah the Prophet (HI. Kings, chap. 19), to
anoint Azahel to be King of Syria, one of the Gentile Kingdoms.



Chap. XIX.
The Law of Nations makes not laws for the Faithful, but often gives names to their laws.

OR we cannot allow the kingly [jower to have been inltituted at the firft by any
other law than the law of nature, fince it hath been fhown abov_' that there was
no other law at the time of its inftitution. And although the Civil Laws fay, that
nations have been divided and kingdoms founded by the law of nations, as is expreifeO in
the aforefaid Title of the Digells, yet that in no way detrafls from what hath been laid
above. For in the fame Title it is exprefTly taught that that which natural reafon eftablil les
among all men is preferved among all nations, and is called the Law of Nations, as beinj a aw
which all nations ufe. And what is it which natural reafon has elLiblillied among al nen
but that natural equity which is nature's law ? What elfe, then, is the jus gentium which
our laws fo highly extol, but thofe laws of nature's code which all nations obferve ? For
when the nations adopted for their own purpofes certain laws of nature, which were fo con-
venient for them that withou|,them they could not live rightly, thofe laws fo ad'nitted by th> m
obtained the name ot the Law ot Nations. b"or let it not be fufpcfted that the laws cf the
nations become the laws of the faithful becaufe the nations made ufe of them. For the
Gentiles of old time reckoned idolatry among their chiefeft laws. Yet what more abomintihle
could be named among believers ? But in truth it is only thofe laws of nature wiiich
the nations have admitted tor their own government, as diftinguiflied from other law^ of
nature to which all nations do not allent, which the civil law defignated by the name of
jus gentium. For nowhere in the whole feries of the Old Teflament do we read of .my
laws being defignated " law of nations," for it was the civil law only which firft ,iif-
tinguifhed laws from laws under that name. For it is known beyond doubt that cuftom
among the Gentiles, although of the longeft, and although it have paffed into a cuftomary
law, is not on that account binding under the name of law of nations upon :he faithful
among whom the cuilom itfelf hath not taken root. For although thofe facred Ci\ ilLavvs tell
us that by the law cf nations were eftablifhed buyings, fellings, hirings, and the like, it is
neverthelefs clear and beyond doubt that contracts of this kind exifted lawfully thoiifands
of years before nations began to be. For before the Deluge there were no nations, but as
St. Auguftine fliows, in the 15th Book of the De Civitate Dei, in the days of Phaleg, who



,,*.. ,: I



PART 1.] O71 the Law of Nature. 211

was fixth from Noah, and whofe name is interpreted divifion, the earth was firfl: divided,
and the people was parted into feventy-two nations and as many tongues, whilft the fons of
Noah built the Tower of Babel (Babylon), and before this divifion it is evident that there
were no nations, but in the whole world there was but one nation, one people, and one
tongue.

Whence in the tenth chapter of Genefis it is thus written: " Thefe are the families.
of Noah after their peoples and nations, and by thefe were the nations divided in the earth."
And in the eleventh chapter of the fame book the Lord fays, " Behold the people is one,
and they have all one language;" words which the Saint aforcfiid remarking, faith in his
book above-mentioned, " And the Lord God iaid, Behold the people is one, and they all
have one language." That, therefore, which the Laws tell us, namely, that the contrads above-
mentioned were infliituted by the law ot nations, is and can be nothing more than if th :y had
fiid that fuch contracts were inftituted by that law of nature which nations ufe in thofc cafes,
and thus not primarily or originally, but fecondarily and by way of aflent were inftituted by
the law of nations ; and in this ftfhion ought to be underitood the words above quoted,
which fay that nations were feparated and kingdoms founded by the law of nations. For
before the feparation of nations a law ot nations did not exift. Wherefore nations could not
have been put afunder in the firft inftance by the law of nations ; but it is evident that
nations when feparated created that law. Neither, therefore, were buyings, fellings, and
the like begun by the nations, but, having been invented by the law of nature according to
right reafon, were according to the fame reafon ratified and admitted by the law of nations.



Chap. XX.

The Law of Nature created contracts among men, and was not changed by man s fin.

'Q^^HEN the Lord had fiid to Adam, " In the fweat of thy face thou ihalt eat thy
bread," was it not lawful for Adam from tliat time to fell to another the bread
which the Lord had called his own ? and when it is written in the fourth chapter
of Genefis that Abel offered of the firftlings of his flock, were not thole things then his own
which Holy Scripture fpeaks of as fuch .'' And at that time it is evident that no law of nations
exifted, feeing that two brothers could not conllitute nations. Wherefore it mull be of
necelTity conceded that property in things, et"pecially in things acquired by the fweat of the
brow, firfl accrued to man by the law of nature alone, feeing that there was then no o:her
human law ; and confequently buyings, fellings, lettings, hirings, and the like, took tneir
origin from the law of nature, which is a perpetual law, and, as the Canons above-mentioned
fay, began from the beginning of the rational creation, and varies not with time, but fubfifls
unchangeable. The Hate of man, however, was changed by fin, but not the law of nature,




^■f.A'?



'1::) :,■ ■ _ v", '



;■! oil '3it'f<
.■■»i.'y/)oi
:..-Mr;vV
J-, ,'ico^t 'io

'■'■• .-: LnA

..7 >{ood



•. J,, -ri






2t2 On the Law of Nature. Tpar'



r I.



concerning which the civil laws f.iy, that the natural laws which are ohfcrved among all
nations, being ertabliflied by a certain Divine Providence, abide always firin and innmitable.
For the very law which now makes us fay, " this is mine and that thine," before the fin of
man forbad to lay fo. b'or that law is the lame when it decrees the innocent man to enjoy
his liberty, and when it deprives of his liberty and thrulls into fetters the fame man confcious
of guilt, and for his crime ftrips him of all his goods; for in thefe things there is a change of
man's condition and deferts, but not of nature's law. It is the fame fun which condenfes
liquid mud into brick, and which dilTolves frozen water into liquid ; and the breath which
kindles the lighted torch into flame is the fame which cools tlie lK)t porridge ; for in thefe
cafes the qualities of the objeifts affetled produce the changes which the objects themfelves
undergo; but the efficient caufe continues rtedfaft and is not changed; and thus the equity
of natural julfice, which once allotted to man m his innocence a lliare of all things, is no
other than that equity which for his offence deprives man, corrupted by fin,' of the hlclTmg
of fuch community. Is the law of nature then not confliant and perpetual ? and doth it i ot,
itfelf unchanged, always allot to each and every one that which is his due ? Oh ! Law of
Kings, how dolT; thou compare thyfelf with this law? Thou haft ever been converfant v ith
finners upon earth, this Law once in Paradife had the glory through grace of governing :he
innocent. Thou wall conlfituted by man's cunning, this, as the laws fay, by ])ivnie
Providence. Thou didft: proceed tVom the nations of the earth, this from God. Thou art
changeable with thev.ill of man, this, unchangeable, abities ever one and the fame. And
fince fhe rules the king under whom thou ferveft, fhall fhe not govern thee his fetvaut?
For, truly, to rule the king is nothing elfe but to rule his afls, among which thou art cun-
fpicuous. Ceafe then to ftrive with the Law of Nature, for flie is thy millrefs, and he
miffrefs of thy lord. If thou dolt well thou wilt be adopted and loved by her as a daughter,
but if ill thou wilt be puniflied as a handmaid. 1

Chap. XXL

The evil whiich might befall the people of IJrael through the Law of the King being difclofed,
the author ridicules the coriipariJo)i above mentioned.

)^-i ({Bonder alio in thy mind, thou Law of the King, how during al! the time in
which that people over which thou doll: prefide was governed undei the Law of
God, politickly, as His peculiar people, neither the exceffes of any one ot them
efcaped unpunifhed, nor, as is written above, had any one the liberty to do to another what
he would not have another do to him. But when once a man was made their king, although
all the reft of them remained as before under the difcipline of the law, yet the king himielf
was left fubjed to none, who by force of any law could reftrain his mifdeeds ; and thus the'




PART I.] 0?} the Law of Natin'e. 213

king raifed up at the demand of the people received fuch power, that although he could
compel others to live honeftly, he himfelf, neverthelefs, from that time forth, could do
wrong, free from all bonds of human law. Whence even if he opprefs with labour the fons
and daughters of the people which alked for a king, or if he wafte their goods, or appro-
priate their fervants and handmaidens to his own fervice, or give their fields to his lervants,
that king finds none to reprove him, for he had received from God the fupreme and abfolute
power upon the petition of the opprefTed people, fo that no power of correfting his excefTes
had been left to any man. What more penal announcement could be made to this
people, which by afking a king had provoked the Lord to wrath, before fuch a king was
granted to them, than to proclaim to them the law of the king who lliould fo reign over
them ? And left any hope fhould be left them that God upon their cry would beat down
the tyranny of their king, if he fhould fo ra^e againft tliern, the Prophet lays, " W fhall
cry out in that day from the face of your king whom ye fhall have choien you, : nd the
Lord will not hear you, becaufe ye have afl<ed you a king." Hath, then, the law ot the
king any likenefs to the law of nature ? As the Lord faith in irony to Adam, when after
his fin he clothed him in a coat of fkins, — " Behold Adam is beconie as one ot us."

Ch.vp. XXIL

y/ King ruling royally, and a King ruling politickly, are equally likened unto God.

5j(i/y'^))'^|ND although thou, oh! Law of the King, hall: moft rightly confidereJ the prince
'jl under whom thou warreft, who at his nod direfts everything in his kingdom, to
be in this like unto God, who governs the univerfe as He wills, whence thou
didft no lefs wifely boaft thyfelf, as his decree, to be like unto the Law ot God, whole will is
law ; — take heed, neverthelefs, with trembling, left, pufted up vvith thefe thoughts, thou ridhly
exalt thyfelf above the laws of a king who governs his people royally and politickly. J-'or
thou art like unto the Law of God by which He rules in the whole earth ; but thole laws are
like unto that Law by which all the Blefted reigning together with Chrift are ruled in their
native country, in that peace which they long tor, (of whom fome are fenators, and fit upon
thrones judging men; yea, and fome, as faith the Apoftle, fliall judge angels;) where there
fhall not be wanting the confent of all the citizens in every judgment of the King.

And St. Thomas faith, in the and book of his De Regimine Principum, that the
political government is to be preferred to the royal, if the former be referred to that found
ftate of human nature which is called the ftate of innocence, in which there was not ; royal
but a political government. Neverthelefs, fince God ruling in heaven and earth s ever
of one and the fame power and majefty, and the judgments which ye Laws both
pronounce, are not the judgments of man, as Jchofaphat fays in the 19th chap, of 2nd







-^.>i/;^>t":,?



On :'ri Ljtr ;''X;::.-



van"



Chronicles, and lo neither of the kings to whom ye are Ibbjecl, but are the judgments of
God, who is no accepter of perfons, nor yet of peoples; for, as St. Peter faith in the loth
chap, of the Acts, "In every nation he who feareth him, and worketh righteoufnefs, is
accepted with Him" — wherefore, feeing that the equal hkencfs of God hath rendered equal
the kings under which ye rule His people, and both are monarchs in their kingdoms, as God
is fole monarch in the world, fo reckon ye yourfelves as equal laws, without difparity of
power or dignity.

i
Chav. XXIII.

Ad-vice to him who reigneth royally, to reign aljo politickly.

UT thou, O King, who reigneft royally, make it thy bufinefs, as befl thou canft,
to rule thy people politically alfo. For " polity" (policia) is fo called from Tro/.bi,
which is plurality, and ikwv, adminijlrationy as it were a J'yflem of government '
adminijlered by advice of many. Manage, therefore, the commonwealth of thy Realm by the
counfels of many. The kingdom ot the Romans, long regulated by the coimfel of thirty-
two Senators, grew from the fmalleft into the greatefi: empire of the world. Solomon, wifi ft
of men, exalted to be a king, prayed not only for wifdom with which to rule the people, b it
alfo for a teachable heart by which to learn more than he knew by nature. But his foi,
Rehoboam, defpifing the advice of the wife, loft more than ten parts of his father's kingdom.
Whence we are inflru6ted that the good fenfe of a king, whofoever he be, is not fufficient to
rule a kingdom without the fupport of counfellers, even though the king were a fon of
Solomon. He who is taught by the wifdom of many, is ftrong in their prudence, but 1 e
who depends upon his own wit hath evidently only the wifdom of one.




Chap. XXIV. ' |

He ivho reigns politickly is here advifed to govern in certain cajes royally.

y\v'))^|GAIN, O King, who governefl: politickly, govern thy people royally alfo, vhen
1 v^ occafion demands it. For it is not all cafes which will admit of being embraced
~-'S"'|r^ in the ftatutes and cufloms of thy kingdom ; wherefore, fuch as remain iire left
to thy difcretion ; for thou doft deal with all criminal matters according to thy w 11 and
pleafure, and doft mitigate or remit all punifhments, provided only thou canft do fo \ ithout
damage to thy fubjefts or offence againft the cufloms and ftatutes of thy kingdom. iZquity
{epikaia) alfo is left to thy fagacity, left the ftriiftnefs of the words of the law, confounding
its intent, fhould hurt the common good. For the law which forbad to afcend the walls of



PART I.] 0;z the Law of Nature. 215

the city that man Is adjudged not to have broken, who mounting the walls without licenfe drove
back the enemy rudiing in of a hidden, who would otherwife have taken the town. For on
that occafion the obfervance of the law would have fwallowed up the law aiong with its
authors. Nor would thofe Maccabeans, who were flaughtered on the Sabbath-day, have
been defpiiers of the Commandment which prefcribed without condition the obfervance ot the
Sabbath, although they had gone forth on the Sabbath-day trom the caverns in which they
were hiding, and routed their infulting enemies (ift Maccabees, chap. 1). Equity, as faith
iEgidius Romanus, is indulgence above what is juit, for human nature always begs for'
pardon. This virtue, as the Philofopher fays in the fikh of the Ethics, detracfts not from
legal juflice. For epickma is fo called from epi, which is above, or praije, and kaid, which is
lax, (1 being changed into i,) as it were z J'uper-laiidahle relaxation of the JlriblneJ's of Lviv.
Hence that fuperior authority is held to have abfolute power, not indeed fo as to vio ate a
perfeft law, but fo as the rather to fulfil a law of his own kingdom by reaion of the law of
nature, which is natural equity. For oftentimes the written law lies as it were dead under a
covering of words, though not wholly lifelefs, and then the Prince, by means of equity, roufes
its vital fpirit as if from fleep, as a phyfician relieves a ftupefied patient in a fyncope, fo that
then that faying of the Gofpel may be ufed concerning two laws repofing uiuler one covering
— " There fhall be two in one bed ; one fhall be taken, and the other left." Often, alfo,
the mind of the lawgiver did not perceive all that the words of the law embrace. Wherefore
in fuch cafe the office of a good prince, who is called a living law, fupplies the defeft of the
written law, which, like a dead thing, continues always immovable. Whence the Philolo-
pher fays, not without caufe, that a kingdom is better governed by the befl: king than the
beft law. But let a king ruling politickly ever beware left, repudiating fuch laws of his own
kingdom as are pregnant with juftice, he enaft new laws without confulting the chief men of
his kingdom, or bring in foreign laws, fo that, rcfufing for the future to live politickly, he
opprefs his people with \\\sjus regale.

Chap. XXV. ;

Here are explained certain cafes in which a political ruler will of neceffity govern royally.

EVERTHELESS, there are other cafes, and very many of them, in which it is
fometimcs right and expedient for a king governing politickly to ad; rega'iter
1^ againft fome of his people ; as if his people has rifen in arms againft him, ir a
foreign people has invaded his kingdom, where time will not allow to do everything w lich
the neceflity of refifting and repelling attack requires in due form, and by procefs of the
laws which prevail in that kingdom in time of peace. Wherefore that king will be at liberty
at his own will to take the fons of his fubjefts, and fet them in his chariots, and make them




;'Ar






'-;■; ' .:!<.;
■;: :;;.:. f)

:; K vr...



:ig!ii;i sir!
1 ^b-' f[0



2i6 0)1 the Lmv of Nature. [part i.

riders in his chariots, and do everything clfc which the Prophet warned the people of
Ifrael was the right of the king. I'^or as the phyfician takes care of the fick man, fo c.oth
every king of his kingdom ; for as difeafe is the weaknefs of bodies, fo vice is the weak lels
of fouls. A phyfician often hinds a fick man labouring under a cancer or a gnawing difeafe,
left: the fufferer, impatient of the bitterncfs of medicine, fly from his own fafety ; and fom >
times the furgeon cuts off the afl-'eifted limb, when he cannot five the reft: of the body by ai y
other means ; nor does the phyfician or furgeon err, provided he reftore the fick man to health,
though maimed. So neither doth the good king err who, in a time when fucii commotio.!
hath arifen in his kingdom, waft:es the goods of his fubjeds or expofes fome of them to
inevitable perils, or opprefTes others with burdens and toils fur the iatety of the kingdom,
which otherwife he cannot preferve. For fince art, as is faid above, imitates nature, and
nature works everything for the beft, and the art of living holds the primi cy among all ar s,
inafmuch as all other arts refer to it; as nature fuffers the human body to be mutilated by
the furgeon rather than pcrilh outright, and iiTipels the ieveral members to expo.e them-
fclves to blows rather than allow their head to be endangered, fo, rather than the k.ng who
is the head of his kingdom, perifti, his fuhjects mult: be expofed to danger ; and as the king,
as St. Thomas fays, is given for the kingdom, and not the kingdom for him, inafmuch as he
is related to the kingdom as the thing caufed to the caule, he ought to iurrendei hi iifclf
to all forts of dangers, rather than tliat the kingdom perifti. Wherefore, when the fore[ oing
is confidered, it is not the dignity or ftate of a king reigning royally, and fo only, or of a
king prefiding over his people both royally and politickly, that doth fet one of thefe above
the other, but only the goodnefs and juftice of the ruler. 1' or the likenefs which their dig nity
hath to the governance of God makes them equal, but yet thofe individual kings are of tei un-
like in refpeft of that likenefs whereby they are affimilated to the Divine aftions. Th.-reibre,
clap your hands, ye fubjefts of a king ruling royally, under a good fovereign, when fuch a
one there is, becaufe ye muft needs mourn when an inioient or grafping king rules ovel-you.
And you, ye fubjefts of a king prefiding royally and politickly over his kingdom, ci^nfole
yourfelves in this refpeft, that, if your king be equally arrogant, he hath not a loofe reui for
it, like the other. ', i

Chap. XXVI. '

A king ruling politickly is of equal power and liberty ivitli a king governing royally.'

ND although a king governing politickly cannot change his laws without the
affent of the chief men of his kingdom, but yet when laws ; re deficient
can fupply their place, let not the law royal on this account exalt itfelf,
as thinking itfelf more powerful or freer than the law political, or its king more
powerful or freer than a king governing the people politickly ; leeing that the poftibihty




PART I.] O71 the Law of Nature. 217

ot finning is not the danger of power, but of impotence and flavery, as in the cafe of priva-
tion of liy;ht or ignorance of virtue. For if the breath of pride fo affcft the foul of a man,
that abandoning humihty and moderty, he Is raifcd into ambition and plundering; of kingdoms,
or if luil hath fo fired his flefli, that he lapfe into luxury and lewdnefs, or if the crime of
covetoufiiefs, or Iwclhng ot anger cai1: a man down into the villany of theft or murder, doth
not that man's fin then proceetl from his impotence, feeing that unlefs he furrendered himfelf
a conquefi: to thofe vices, fuch fins could not be accompliflied ? Thus, alfo, every fin with
which a man is rtained proceeds from the impulfe of vice and the folly of man, by which
he makes himfelf a flave to thofe vices ; whence it mull needs be confefied that it arifes from
the impotence of a fpiritlefs and dafliardly being. Wherefore to be able to fin is not power
or liberty, no more than to be able to grow old or rotten, nor can he who is powerful to {\\\
be called powerful abfolutely, on account ot the contrary quality contained in the adju it^l, no
more than a dead man can be called abfolutely a man. Oh ! how confpicuous then is the -niner's
impotence, and how great is his flavery proved to be, when he, firll: vanquifhed by evil vices
afl^ed:ing his mind, as though by tyrants too ftrong for him, through his own pufillanimity
and fluggifiinefs of foul, hath yielded himlelf to them as a flave ; even, as the Lord faith —
" He who committeth fin is the fervant of fin." Whence, afterwards, by his own affeiftions
and pafiions (which the ancients cMtd perlnri^a/io)ies), as though under chains and fetters,
he is thruil down into the dungeon of flavery ; concerning which Roanhius writes thus in
rhyme :— " For although the Indian land afar tremble at thy laws, and fartheft Thule ferve
thee, yet not to be able to banifh black cares or put to flight wretched lamentations, this is
not power." And feeing that all the aftions of man, as the aforefaid Bocethius fays in his
fourth book, De Coniolatione, &c., are accomplifiied in two things, will, namcl,, and
power, (concerning which a certain rhymer lays — " Two thmgs make all domgs — will and
power; put them afunder and they effeift nothing;") it is evident that when a man hath
done a thing, he hath had the will and power to do it; and if a man hath wifiied to do a
thing and not done it, he is judged of necellity to have been in that thing without power.
But inafmuch as the Supreme goodnefs hath fo afic6ted the nature ot human kind in its
beginning with His own goodnel's, that man ever wifiies for good, (as the fame Booethius
fays — " Man, unlefs feduced by error, cannot wifli tor anything but what is good, which is
diftinguiflied as an objedl of the will"), it follows that, if a man torfake the doing of good,
it comes of impotence, fince it cannot have proceeded from \sill. Wherefore, it it be good
for every people to be governed by laws to which they themfelves aficnt, it will be admitted
of neceifity that the rule of a king who governs his people by fuch laws, which is cal ed a
regimen politicuin, fprings from the power, as it doth alfo from the will ot fuch a king ; w lere-
fore every fuch king is powerful ; nor can he by reafon of fuch a kind of government be called
powerlefs, or not free, feeing that what he wifhes he does, not hindered by any more powerful
than himfelf. Moreover that it is good tor a people to be ruled by fuch laws, St. Thomas, in



Online LibraryJohn FortescueThe works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) → online text (page 29 of 87)