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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2 1 8 On the Law of Natin^e. [



PART



the firft book of his treatife above mentioned, feems to have moft openly taught. For wht'n
in that place he had condemned oligarchy, which is the rule of the few bad, and democracy,
which is the rule of the many bad, and had preferred ariftocracy, which is the rule of the
few good, who are called optiniatds, to the rule of the many good, which is called pulitia, he
adjudged monarchy, which alone is the rule of a fingle prince, to be the belT: rule of all.
And as he held that rule to be the bcil: ot all under a good j-irnice, fo imdcr a bad prince,
which he himfelf calls a tyranny, he held it tor the worft. Wherefore, finally, he feems in
that place to wiili that the government of a kiiigdom fhould be fo difpofed, that all occafion
of tyranny fliould be withdrawn trom the king, as well as that his power be fo tempered
that it decline not eafily into tyranny ; by which words he is not only proved to fay, that it
is good for a people to be ruled by laws to which itfelf confents, but alfo himfelf to give na
fmall commendation and approbation to the government ot a king ruling politickly ; inalnuuh
as fuch a king, proceeding according to the laws and cufl:oms of his kingdom, c.nnot i.ilily be
turned into a tyrant, and to rule a people in fuch fafliion can be no hindrance tc k'ngly
freedom, even as it is no hindrance to the tree will of the angels eftablifhed in glory that now
they cannot defire to lln. Wherefore it may be concluded without more delay that a King
governing politickly, who is moft iirmly bound by the laws of his kingdom to juft judgi lent,
is a prince of no lets power or liberty than a king governing royally, who futJering n) I ridle
can freely wanton as he will ; feeing that ability to fin is not power ; nor is a political law,
excellently well cftabliflied with alTent of the people, of lefs efficacy or virtue than a royal
law the mofl: equitably promulgated by the belT: of princes.



Chap. XXVII.

The right of the king is the pozver of the king, which when it hath done augJit contrary to
the Laiv of Nature, hath never cfcaped punijhment. \

SI p/^ HE law of the king {^fus Regis), which the ]-'rophet explained to the people of Ifrael,






^-^ relatively to the king is nothing but the king's power, which a prince governing
^-j royally can exert over his people; but when that law is referred to the people.



to them it is always law, though fometimes good and ibmetimes bad. But teeing that tor a
king to opprefs his people is a deteftable fin, it is well to inquire why the pc wer of doing
this is called Jus Regis, left this word jus fliould fcem from the Prophei's opinion to
jultify nefarious aftions of kings, which God forbid, feeing that the Church i lith — "They
who have done evil ihall go into eternal fire." Let us examine then how that which is
unjuft can be called law {lex). Wherefore in this matter we thus proceed — As a piece of
land which is given to me is called my right (jus), to the power which is given to the king i§
rightly named the king's right ; under which mode of fpeaking the Laws fay, that a man



PART I.] 071 the Law of Nature.



■9



compelled by force to do anything was then not Jui juris, that is, in his own power, and
that a woman united in marriage to a man is not /ui Juris, becaufe, being fubjct'l to the
power of her hufband, fhe is not governed by her own power. Wherefore to fay, Tell this
people the law of the king, was the lame as faying, Tell them the power which the king when
fet over them will be able to afiume. And although an unjull king may unjuftly ufe that
power, the power itfelf is always good, nor can it be defiled by the ufe made of it by the
ruler, fince all power, even as all good, cometh from God. Neverthelefs the dignity nay
be, in a manner, brought into ill-fame by contagion of an unjuft prince, even as an unjult
prince becomes delervedly infamous ; for, as Boethius fays, " the greater the dignity of the
wicked, the more defpicable it makes them; for not with impunity do the wicked make
compenfation to the dignities which they pollute by their infeClion." Thus the power of
Pilate, ot which he made an evil ufe, and in like manner of the Devil, who is ah 'ays evil,
was always good ; for the fault is not in the power, but in the mind of him who abufes-
it. Thus we often abufe free will, which is good ; and the kingly power, which is moil
excellent and is called Jiis Regis, many moft iniquitous kings, if kings they ought to be
called, abufe to the ruin of their fubje^fls. Far be it, then, from us to intend that a king
tyrannizing over his lubjefls aifts legitimately, although he hath received of the Lord the
power of thus venting his fury upon them ; or that Pilate put Chrill: to death juftly, although
the Lord had given him the power of fo (laughtering Him. Ahab, once king of Ifrael,
poflefTed the Jus Regum, as the Prophet proclaimed, yet when he had unjullly taken the
vineyard of Naboth his fubje(fl, the prophet Elijah threatened him for his crime with the
moft fhameful of deaths. So alfo the prophet Nathan, under a fearful fimllitude, moft
bitterly upbraided David, king of Ifrael, when he offended againft his fubjeft Uriah. And,
as Jerome faith in his Comment upon the 19th chap, of the fecond book of Kings, (2 Sam.)
becaufe David unjuftly divided the inheritance of Mephiboftieth, the king's (Saul's) grandfon,
witli his fervant, the Lord alfo parted the kingdom of David himfelf between his grandfon
and his fubjedt ; and although Ahab feemed to have proceeded, lb to fjieak, not regaliter but
politice towards the aforefaid Naboth, inafmuch as he did not dcilre to take away his vineyard
by his royal power, but offered him the price of it, and, when even fo he could not get it,
obtained it in proccfs of law by means of witneffes produced, and by fentence judicially paifed
upon Naboth ; yet, becaufe that deed was done againft the decree of nature's law, which
fuffers no one to do to another what he would not have another do to him, the kin<f himfelf
by the Lord's command was terrified with the aforefaid moft grievous tiireatening. I'or no
edid or aftion of a king, even if it hatli arifen politickly, hath ever efc.qied the vengea ice of
Divine puniftiment, it it hath proceeded from him againft the rule of nature's law.



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3:'!
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On the Law of Nature.



PART I.



Chap. XXVIII.

Concerning unjujl laws and ^Tyrants.

^s^yVOT^Nr) althoiiQ-h, as the Laws f;iy, " the Prince's nleafure hath the force of law," and fo
^sr^^T\Mp '^ properly called Lex Regia, yet is the law itfelf oftencr had than good, ns was
^^^■^^ Herod's decree, by which all the children In I'ethleliem and all the bounds thereof
were put to death ; for that was the prince's pleafure from which it acquired the name of law,
neverthelefs nothing could be conceived more iniquitous than fuch a law. Concerning a like
law the Apoftle fpoke when he fiid, " I find a law in my members warring againll: the law
ot my mind, and leading me captive under the law of fm which is in my members." Behold
here the law of the flefh and behold the law of (in ! Neverthelefs the Apollk calls one and
the other "a law," although a mod: unrighteous one. Thus alfo may a prince anrighteoufly
ruling fay of his unrighteous law, that he finds a law in his mind warring againft the law of
nature, and carrying him captive under the law of fin, then dwelling in his will. For as th; t
imperious virago, lull, wantoning in man's flefh, is called by the poets the tyrant of natun ,
fo a king domineering in luxury, and opprelTuig his fubjefts, deferves the name of tyiani.
For tyrant (^tyrannus) is fo called a tyro, that \s,, Jlroiig, or anguftia, as though by his ftreigt i
ftraltening his fubjefts ; and a tyrant, according to St. Thomas in his atorefaid book, D ;
Regimine Principum, is a prince who rules for his own pleafure, and not tor the good ot his
people. This man fliall occupy the loweft and molT: grievous place in punifhment, being of
that fort of princes of whom it Is written in the Book of Wifdom, " To thofe who are (^n
over other men fhall the hardelf judgment be done, for to the feeble mercy Is granted, bu;
the mighty fhall fufFer torments mightily."



Ch.ap. XXIX.



Epilogue of the difcuffwn bet-iveen the Liiw of Nature and the Laiv of the King.

^A^irsav^A) . . . ... .'

'^iTpl U y^ IMF,, Impatient of our now prolonged difcourle, interrupts us with the warnintr
ijjiq p^25 'I . . . :

9>tt\ 1*^ '■'^'^'- ^^ I-"-"- ^'^ ^"'-^ more fuccinc^ly to the negociation which we have entered up )n
^(T^^^ with the Law of the King. Wherefore we now deem it expedient to colled, as it
were into an heap, whatever we have gained in our progrefs fo far In this prol x treatKe,
making thereof a fum total, after the manner of accountants ; fo that, if anything dill remain
to ftir up againft us the minds of thofe who aflault our ftronghold, we may, it it 1 e pofiible,
ward that off alfo ; by which means we may afluage the fury of our befiegers, and clear av/ay
the circumvallation of our citadel, fo that, to our joy and rejoicing, all who infult us may go
back to their own place. For, firll: of all, we have declared by a clear diftiiKlion that the






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PART I.] Oil tfie Law of Nature. 221

Royal Law, which the Prophet explained to the people, is not the law of all kings, but of
thofe only who rule over tlieir fuhjefts with merely regal Iway, fuch as were the kings of the
nations to whom the people of Ifrael wifhed to be made like. Whence we have taught that
the law of a king ruling royally and politickly, which is always fubject to the rules of the law
of nature, is foreign to this difpute ; and, the labour of our conflid being thus lellened, we
have fhown that the royal law is not fuperior to the law royal and political, which thus
humbles itfelf under the hand of nature's law ; v/hence it becometh not only the law royal
and political, bat the law merely royal alfo, to be fubjed: to the commands of natural law.
We dilplay alfo in all its greatnels the majefty and authority of the Law of Nature, when we
allege that that law not only, through grace, ruled man in I'aradife in the time of his
innocence, but alio governed him in like manner in this wildernefs of his exile, and that it hath
never abandoned any man — ^jull man or unjulL Whence we have proved that 1: w to be
eternal, and, while man's ftate has changed, to be wholly unchanged itfelf; tor we have taught
that all the decrees ot" the royal law, when they are in error, ought to be correfted by the
rules of the law of nature. Thus alfo we have proved that the rules of the political law, and the
fanftions ot cuftoms and conlVitutions ought to be made null and void, fo otten as they depart
from the inftitutes of nature's law, which we have above defined as the mother and millirefs
of all human laws. Upon the other hand, we have faid of the Royal Law, that it did not
take its rife in Paradife, or from the beginning of the rational creation, like the law of nature ;
but, when man's nature had been polluted by fm, and the purity ot original innocence loll:
under pagan kings in the earth, that law burll forth, promulgated by man and lubjed to his
inconftant will, by means of which will and pleafure of his, changeable and changed, fome-
times good was wrought, hut ot'tener evil ; yet under cover ot this inconrtant condition, that
law was allotted out of a certain Divine feverity to the king of Ifrael for the ruling of an in-
conftant people, ftifF-necked and unthankful, who, by defiring a king, had provoked God to
wrath. How, then, doth fuch a law compare itlelf to the law ot nature ? Can any com-
parilbn be made of a fly with an eagle, or of a bHnd mole with a lynx ? Nay, it it can,
much greater is the unlikenefs between the law ot kings and the dignity of nature's law.
This Law of Nature fprang from God alone, is iubjed: to His Law alone, and under Him, and
with Him, governs the whole world ; whence it comes that all other laws are its fervants, fo
that there is not a law on earth put forth by man which obeys not theconmiands ot nature's
law. This law hath never been feduced by error out of the ftraight path ; this la^v hath
never changed in any part, but, as is fhown above, abides unchangeable, though wounded by
fm ; yea, the Law of God, whofe Divine commands flie hath never tranfgrefTed, ru es her
ever, as a mother doth a daughter. Whence, by reafon of her high birth and origin, as
well as for her dignity, power, and magnificence, the order of nature requires that all laws
that are called human do pay her deference. Let, theretore, the Lav.' ut the King give
place to her, as to its miftrefs and elder, nor prefume any more by coniparilbns to make



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222 On the Law of Nature.



PART I



itfelf her equal. Thefe things the Prophet hearuig, with all his hofl: of kings and all their

laws, thus began : " Let us retire from thefe abodes. Let us afiault this citadel no more.

For this is Zion the Tower of David; this is the myftical, impregnable Throne of Solomon.

Here he fet at reft the difpute of the quarrelling harlots ; here he folvcd the riddles of the
wifell: of Queens, and, by Divine grace infpired, wrote three thoufind parables ; here, defpifing
worldly pomp, which he likened to vanity, he taught men to defire Wifdom, and falute her
with the embrace of delight, — Wifdom which is the maker [credtrix) of nature's law. What
more can we fay i" Truly the Lord is in this place. This is no other than the Moufe of
God, and the entrance gate of Heaven. Fur here Jacob, by revelation of God's Spirit,
having a ftone under his head, faw a ladder (landing on the earth and its top touching heaven,
and the angels of God afcending and defcending upon it, for he faw the Lord alfo refting on
the ladder. Truly this fortrefs is no Tower of Babel, bur is a ladder dired^ed to Heaven,
upon which the Lord leaning, by means of afcending and defcending angels, pouretli faith
and grace upon man, while he refts upon the rock, whicli is Chrift." And this faid, the
Prophet raifed the (lege of the tower; by which means Peace (which, .as St. Auguftine
faith, is tranquillity of rtate) killed Juftice, and the Royal Law recognized its own ordei", a id
refted therein. So every one of the befiegers departed in peace to his own country.



Chap. XXX.

I

Difference between " Jus" and " Lex."

i|OW, feeing that in what goes before we have named the law which we choo:e lo
decide the queflion propofed fometimes Lex Natin\e, fometimes Jus l^atm\t,
it feems expedient to declare wherefore we thus vary our terms, or produce thjsm
indifcriminately, letl in confounding the terms we confound at the fame time the fubjed of
which we treat. Now it hath certainly not efcaped our perception up to this point, that ^us
is to lex as genus to fpecies. \ox jus is fo called from jujlitia, and is everything which is
equal and good. But all fuch is not lex ; neverthelefs all law ought to be equal and good,
otherwife it would not be a fpecies of Jus. Thus, therefore, all law \sjus, but it is not ccn-
venient to call aW jus law ; for every man who feeks to have back what is his own before a
judge hath the right (jus), but not the law (lex) of claiming it. The law n'fides with
the judge, whereby he decrees relTiitution to the promoter of the fuit of the things
which he demands, and in doing fo he renders him both right {jus), and law (A'.v).
Lex, as fome think, is fo called a legendo, and is a ficred fanc5tion commanding things
honeft and forbidding the contrary. But this is Statute law, which is uilially written
when enacted, but Cuftomary law is not enafted, nor always written. And if cuftom
be by the prince's order committed to writing, thenceforward it transforms the name of




PART I.] O71 the Law of Nature. 223

cuftom into the name of ftatute, and then puniOies offenders more flaarply than before,
becaufe then there is contempt of the command of the prince. Wherefore the law of
cuftoni, knowing nothing of letters, and the law of nature, which for fo inaiiy thuufmd
years was unconfcious of writing, are not named a legendo, but a liga>ido, becaufe they bind
and are not always read. And if derivation knows not fuch an origin of the name of /Vx,
yet etymology, which tells of lapidein as Lcdentem pedent, and pigriim as ped'thus .vgrmn, will
not refufe to affirm that legem may be fiid to be, as it were, legain. Whence law may be
faid to be the bond of right, by which a man is conftrained to do or fuffer what is jull.
And though Law, as above faid, is a fpecies of lliglit, yet as thus defcribed it is itleU a
genus in relation to the Law of Nature, of Cuilom, oi Statute, and to all fpecial and pru'atc
laws, of which, as above related, the number is like that of the rtoiies in the heap or the
trees in the foreft. Therefore (o often in this Treatife as we fpeak of things which r -late to
iurifdi(5tion we ufe the word lex or jus abfolutely ; but when the difcourfe turns upon the
title to the poffeflion or having of a thing, or fuch matters as regard not jurifdidtion, we ufe
the word_/'//j, not lex. And now let not the reader of this and the foregoing wonder at
our pollponing by many digreflions the decifion of the queftion propofed ; feeing that a
woman too much haftened to her delivery often produces an abortion, or by the number of
her labour pangs expofes herfelf to peril of death. And fo, in order that the progeny of
this pregnant queftion may, if the Lord will, be born fafe, and the mother be troubled
with fewer pangs, the Author amplifies the more, fo that, if by the envy of aflailants dangers
befet the mother or the child, there may be found in this Treatife antidotes whereby the
fame may be remedied, feeing that the Writer cannot always be forthcoming, when his
detraftors vomit forth their poilons in fecret. ■



Chap. XXXL



v^pTJ-* HE ftrength and authority of the Law of Nature we now underfland, but its fpecies
^'a vi ^^ '^^ "^"^ y'-''^ perceive ; whence we are not a little in dread left fome other law
^Sj^Ll^ afTuming its name climb into the judgment-feat of this trial, by which means we
fhould be ventilating this cafe before one who is not a competent judge, and fliould fpend
our toil in vain. Wherefore it is neceffiry to examine diligently what this law of nature is
which we have fo hailily heralded, fo that, its nature once recognized, we may be able to
avoid the court of any ftrange judge. But as to the means by which its nature m: y be
recognized we are under great doubt. Tully, in the introduiflion to his book, De O.Hciis,
faith that every difpofition of a fubjecT: undertaken by reafon ought to (tart from a definicion,
that it may be underftood what it is concerning which the diij)utc ariles. Yet, if concerning
the law of nature we afk for its definition, that definition will difclofe to us the genus, but



I/; (■:-".






2 24 0;; the Law of Nature. [



PART



not the fpecics ot the law ; becaufe the general defcription of the law {jits') o\ nature doth
not feparate that law of nature by which legal queftions are decided, of which we are in fearcl ,
from tliat law of nature by which offspring is begotten, nor from the law by which all fentient
beings produce their fcttus or progeny, nor from the law by which birds build their
nerts and bring up their young, and the like, feeing that the defcription itfelf embraces all
thefe laws under one context, when it fays, " Natural law is that which natiu-e h-ath taught all
animals." What can be more obfcurely or indliVuK'-lIy faid than this ? — to fuch a degree that no
one fpecies of laws can be diftinguiflied from another, feeing that it thus embraces them all
promifcuoufly as it were in one bundle. It is the fpecies that we feck tor and not the genus ;
tor the genus cannot judge the caufe of mankind, but the fpecies, nay, to fpeak more truly,
an individual of the fpecies. And was it not no fniall difficulty to Samuel the prophet, t(
chooie from among the ions of jelTe the one moll: pleafing to God who fhou d reign over thj
people ot Ifrael, when he tound {^vtw ot his fons in one houle? But it is a much greater
difficulty to choofe one out of fo many fpecies which the Law of Nature contains to rule over
the world. What if Senfuality, which is embraced under the definition, and feems to bt the
firll-begotten of human nature, were chofen, even as Eliab, Jefie's firll born, was broi ght
before the Prophet to be anointed king over the people ? I think that what the Lord fai 1 of
EHab would be faid of it : " Regard not his countenance, for I have rejeded him." And if
a fecond kind were brought forward, as Abinadab, the fecond ion of JelTe, was brought
before the Prophet, I mean Natural Reafon, which, after fenfuality, human nature hath in the
fecond place produced, would it not be faid of it, as the Spirit faid of Abinadab ; " I'Jeii.her
hath the Lord chofen him ?" And fo concerning the other forces and powe-s which nat ire
hath taught all men ; fo that that may be faid of all thefe which was faid of the feven Ton . of
JelTe: " The Lord hath not chofen one of them." Neverthelefs, after this JelTe faid to the
Prophet: " There is yet a little one left, and he feedeth the fheep;" and Samuel faid km to
him : " Send and fetch him hither." But what readier mefTenger can be found in this bufi-
nefs than Reafon? For it is thus defined: " Reafjn is a force of the mind partakii.g of
divine light, which of necelTity brings in truth." But what truth can it bring except the truth
of juftice ? And is not this our very law of nature of which we are in fearch ? Yea, the Canons
infpired by the Moly Spirit, intrenched alfo in the writings of the Saints, call the law of nr.ture
the truth, where they exalt it above cuftoms, faying: " When truth is manitelled, let cullom
give way to truth ; " (Di. viii. Cap 4, De Veritate,) and in the fi^me place : " Let I'o one prefer
cuftom to reafon and truth, for reafon and truth always exclude cultom." And in the fame
Dillindion (Cap. 7, FruJIra) it is thus written, after the opinion of St. Augullin • : " Vainly,
indeed, do they who are overcome by reafon allege cuftom againft us, as though cuftom were
greater than truth." Lo how thofe facred writings defignate the law ot nature by no other name
than that of truth, and how they affirm that reafon hath the power of clearly ftiowing forth truth !
What elfe, then, can the Law of Nature be but this— //^^ '■Truth of Juftice, which is capable of



PART I



,] 0)1 the Laiv of Nnttc'c. 225



beini^ by ri^ht rea/on revealed? We have thus found by inftrui5i:ion of the facred Canons, how
the law of nature can be nioft rightly defined, feeing that a definition, as Januenfis fiith in liis
Catholicon, is a boundary line (^terminus) denionil:rati:ig what the cflence ot a thing is. It leems,
therefore, that the law of nature hath the ianie relation to realon, as the centre to its circum-
ference. A true circle proves its centre, hut yet more truly the centre indicates the truth of its
orbit ; fo alio right reafon reveals the law ot nature, but yet more furely that law difplays the
certainty of reafon. Now, methlnks, is brought from the field that little one left, who
feedeth the fiieep, David, namely, ftrong of hand, able to govern the people of Ifrael ; he is
fair in feeming and comely in face, (ill: Kings, chap, xvi.) So, alio, this Truth ot Jultice,
which hath now come as our Phronefis (moral wiillom), is comely of face and lovely ot
afpecl: ; concerning which Sorobabal faith, that it is ftronger than a king, conquers, is
powerful, prevails, and lives to all eternity, and lafts for ever and ever, (i Efdras, hap.
iv. j8.)

Chak XXXII.

Hoix) ive jJwiild caft back the maUcionfneJs ofjiich as cavil at what hath been /aid.

SrST^^flE mind of him who writes the above is greatly fliaken by two rocks in his courfe ;
WM ^'^^ ^^^, left ^ny one fiy : " See tliis fellow who hath defcribed the law of nature ;
^,J5^^ he only fought at the firft qn.v fit lex ilia, and now he hath defined quid ipfa Jit ,
he inquired concerning the fpecies, and he only defcribes the lubftance." What if, having
afked concerning two men whether one ot them were John, he were to be contentcil with
this anfwer : " He whom you leek is an aiiimal bipes rationale?" feeing that although he
perceives both to be bipeds, and by their fpeech underllands them both to be rational, he
cannot by that defcription diftinguifli John from the other ; for the fpecies of John is known
by demonftration, and not by definition. So, alfo, not only can the fpecies ot the law of



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