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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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nature be fliown by demonftration rather than by definition, but by that means the Writer's
queftion might be more fitly anfwered. In the fecond place, it feems as though the Writer
may be marked with the ftigma of rafhnefs, in having nov/ had the audacity to defcribc that
Law of Nature by which human atftions are governed, when in thofe illuftrious Civil Laws
which have fo long borne, as it were, the care ot all the world, we read no Ipecial defcript'on
thereof! What could injure the Writer's tair tame with a heavier charge of impudence ; nd
rathnefs than thefe two things ? Having, therefore, this tear before his eyes, although he
have an ample field to till, he will keep his oxen at a ftand ftill for awhile, imtil he h; ve
removed thefe ftumbling-blocks from the furrow of his plough, left by them the inftrunient
be fhaken, and the tillage of his field retarded. And firft of all, he fays, that bodily and
fenfible things are more furely known by demonftration than definition — tor the knowing ol

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2 26 On the Law oj Nature. [



PART I.



them hath its fource from the fenfes ; but things intelledlual and incorporeal, being acquired
by the fearching of the aftive intelleft, are made clear to us by definitions rather than by
demonftrations. Wherefore rhetoricians feek out perfuafions, a, id not demonftrations, to
fhovv their conclufions, (ince what they rtrive to prove is an intellectual probability; but
mathematicians ufe demonftrations when they conclude anything, becaufe what they fliow i;
a phyfical neceflity. And if a man hath once apprehended with the lenies the form of tht
above-mentioned John, and afterward his perfon be removed to a diftance from the bodily
ienfe, what doth the intelled: then retain of all that it perceived, but only a defcription ot
the Ipecies or fubftance of him, whom the fenfes reprefented {tlemonjtravit') to the faid
intelled ? Whence although a corporeal fubjeifl {Jit ppofi turn) like John may be better
known by demonibation than defcription, yet can nothing intelleftual, fuch as fcience, lav,
virtue, and the like, be fo known by demonlfration as by defcription, ( r moll of all, by
definition. But the law which we have defcribed, or rather have defined, is demonftrated
by the aforefaid defcription, when it iays chat right reafon reveals to us the law of na'-ure ;
wherefore, let thofe who like not that definition as a definition, ufe it as a defcription or
denionftration, becaule, as we believe, it dcferves either name. And to the Iccond obji. ftion
let the Writer aforeiaid fay that the Civil Law, which, as is faid, hath fo long borne, a^ it vere,
the charge of all the world, cumbered with (o many offices, hath not cared to un "ok the
feveral particulars which man's mind fwelleth with defire to know, but hath left veiy i lany
to exercite the fludious, and perhaps out of reverence hath been unwilling to fhut up within
the barriers of a defcription that Law of Nature which gave it birth ; wherefore it hath left
it free, and given it the rein. But our Holy Mother, the Church, the Bride of Chrilf, who
hath not leant once on the Lord's breaft, like John, (by which means he drank in fuch
copious floods of wifdom), but repofeth ever in His flowery bed, having His left hand under
her head, and embraced with His right, fetting the law of nature before cuftom and
ordinances of man, hath proved it moft clearly, from the writings of the Saints, to be the
very truth of juftice which by right reafon may be known. Whence, then, can the Jliarge
of rafhnefs be laid upon the Writer, feeing that in thefe things he hath written nothing out
of the audacity of his own invention, depending upon his own genius, but hath put I forth
that which he hath drawn from the breaifs of fuch a mother, out of the flilnels of her
charity; even as Solomon lays (Prov., chap, i) : "My fon, hear the inftruftion of thy
father, and forfake not the law of thy mother, that it may be an adding of grace unto thy
head, and a chain about thy neck, &c. .'"'



PART ].



On the Law of Natii7'e.



127




Chap. XXXIII.

'Hie reajun wliy the author invejligates th.e Law of Nature.

;OT only now do the dignity and power of the Law of Nature iliine mod: boun-
teoufly upon us, but aHb what and of what nature it is, is made clear and certain
to us ; and yet its origin, by which the nobihty of its high birth would be made
evident, hath not yet come to our knowledge ; this, therefore, let us now fearch out, for
upon the knowledge of it will follow no fmall honour and veneration for this law. For in
fuch a fcrutiny will be revealed to us at what time, by whofe ordinance, and in what manner
this law affumed the empire of the world, and many other of its diftinftions, ftyles, an J titles
will become known to fame, and in the end its nobility and all its graces will be abuidantly
and clearly evident. Wherefore we will not be flow to fearch out the nativity of this Law.



Chap. XXXIV.



Hoiv to the man alone was promijed the Prelacy of the world before man was created.

-T is written in Genefis that, on the fixth day from the beginning of the creation




^- of the world, the earth being furnifhed with herbs and trees, the water with fifh,
the air with birds, the cattle, bealts, and reptiles being alfo formed, the Lord faid :
" Let Us make man in Our image and likencfs, and let him prefide over (prufit) the fifhes
of the fea, and the fowls of the heaven, and the beafls of the earth, and over every living
creature and every creeping thing that moveth upon the earth." From which words we are
plainly taught that Divine Providence then decreed two things to be made which were not
yet made ; that is to fay, man and his office, the prelate and the prelacy (prelatum et prela-
turam), the minirter and his minirtry, by which, under God, the world when founded lliould
be governed. For the Lord doth not fay, " Let Us make man that he may prefide over the
fifhes of the fea," &c., as though that prefidence were the end of man's creation — man, who
was to poflefs the enjoyment of God, to whom God was to be the end as Fie had been the
beginning ; but, conjundively, the Lord faid : " Let Us make man, and let him prefide over
the filh of the fea, and over every creature, &c. ;" whence the Lord made a fignal diftini.tion
between man's efience and the dignity of his office; not that one ought to exift withou : the
other, but that man as fubftance and the office as accident fhould always endure together.
The Lord, then, was about to create the fubjedt and the accident — not like every accident
which may be prcfent or abfent, fuch as piety, pity, and fuch like virtues, which confift in



2 28 0?i the Law of Natin'c. [



PART I.



man's will, (though not by nature, hut by grace and God's goodnefs, wherewith among other
things the firft man made in God's hkenefs had been adorned,) but an accident indelible and
natural to man, which lliould be fo imparted to and united with his nature that, far fror.i
being voluntary like the virtues aforefaid, it fhould, like obedi.ence, to which man muft be
lubjed: by compulfion if not by will, necelTarily cohere with human nature by a perpetual
bond. Thus the Lord determined to make two things — man, as aforefaid, and man's office,
by which God himfelf would govern the world which He had founded. For what elfe is
the prefiding over the whole earth and its living things but a certain office of ruling the
earth and all things contained in it, feeing that the Lord did not then ordain the firft man to
be the lole doniinator of the earth, but even in his creation referved that dominion for the
man and the woman whom he was about to form out of him, a dominion which was eve
after to be conferred upon the man and woman in common. Wherefore t( man alone this
office of ruling the globe was granted ; nor fhould that office be properly called dominion,
but primacy or prelacy, (pr.ctiUnram,) feeing that, by God's decree, man was preferred not
to be lord {dominari), but to be firft over {j>ra-ejje) all things. For fo alfo the Church
names thofe who rule its dominions prelates, and not lords, fince thofe dominions are part
and parcel of the Church, and thofe who rule them, or are fet over them, are not ther hrds
and mafters. Neverthelels, Saint Thomas in Prima Secunda:, and alfo, in the thirt. took
De Regimine Principum, laith that dominion may be taken in a double fenfe, in one way as
a man hath dominion over another as a flave, which happens when he ufeth him for his own
profit and advantage, and that dominion was introduced by fin, fo that man would not 1 ave
fuch dominion over man in a ftate of innocence ; in another way dominion can be takei , as
it is the office of governing and guiding free men to their own good, or to the common
good ; and that dommion is natural, and fuch as man would have had in a ftate of inno-
cence, inalmuch as man is a focial antl political animal, and cannot live in fociety wkhout
ibme prefident and ruler, as the Philofopher delivers it in the firft of his Politics. And
in like manner, if one man have a fupereminence in knowlci.lt2;e or juftice, it wouM be
improper if he did not contribute a fliare of it for the good of others. Wherefore it
is written in the firft of Peter, fourth chapter, "As every man hath received thd 'nft,
miniftering the fame one to another." And Augufline, in the 19th Book De Civitate Dei,
faith that " the juft bear fway not from the defire of power, but from the duty of taking
care of others." And feeing that the apoftle faith that "thofe things which ari; of God are
ordered by Him," and that "order," as laith Auguftine, "is the difpofing of things equal
and unequal, aftigning to each man that which is his due," — if there were not inequality in
human fociety, there would be no order in that iociety, becaufe the name of order imports
inequality. Thus, therefore, in the time of innocence, order, which is the grace of the
univerfe, required that man iliould have iuperiority over man ; and thus, in a perfect ftate of
the human race, man would have direfted man, and, through the duty of taking care for



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PART I.] 0?2 the Law of Nature. 229

others, the hufband would have governed the wife, the father the fon, the wifer the lefs
wife. Wherefore, alfo, the Philofophcr faith, in the firft of the Politics, that he who is
vigorous in intelled: and induftry is naturally niafter, and he who abountis in (1 length and is
deficient in intelled: is naturally fubjeiit ; whence, by taking dominion in the atorefaid iecond
fenfe, as by Saint Thomas declared, the pre-eminence which man had over the-other creatures
may rightly be called dominion. Neverthelefs, this hinders not that doniinioir to be
alfo named prelacy, feeing that the faid dominion is the oflice and dignity of being the
firft over {p]\eejfcndi) all creatures. Yet Saint Auguftine, in his 19th book aforeiaid, dildains
apparently to give the name of dominion to the pre-eminence and dignity which man would
have had over man in a time of innocence ; for he fays in that place, " The Lord would not
have tlie rational creature, made after His image, to have dominion over any but irrational
creatures, not man over man, but man over cattle." Thefe are his words. We thereto re, it
feems, may moil: fitly, and without incurring the indignation of any objecftor, give the lame
of prelacy to the fupreme dignity and office of the firft man. Which things John
Chryfoftom rightly confidering, gave the name, not of lord (^doniinus), but of prefident
(prafc-j), to the firft man, preferred {prielatiaii) as he was by the Lord to the office aforefaid.
For, as the prelate draws his name (one preferred before the reft) from him who appoints
him, fo, when a man hath taken his feat in the office of prelacy, he may fitly be named
prefident, or one who fits before the reft. Whence the fame Chryfoftom, in a certain
Sermon, thus fpokc concerning the firft man, " God made man, whom He was difpofing to
be prefident next after Himfelf, full and perfeft, having in himfelf the dignity by which he
fhould excel, and the power by which he ftiould govern all living things, fo that he fhould be
ruler of the world and fervant of God, by whom all things had been made (ubjed: to hrm."



Chap. XXXV.

Divine Providence ordained at once the Prelacy of the world and juftice. •.

^^^jHl^OM thefe words of Chryfoftom it is clear that the duty of the firft Trchite was
^ Y^^MA "^^ I'ul'^ ^" living things of the earth, and govern them righteoully, for the per-
^1^^^ formance of which he poftcfted full power and perfecft dignity ; but feeing that
for fuch performance he could not be full and, perfeft if he had not poft'efted juftice, wh ch
is the rule and model of governing, inafmuch as Chryfoftom faid that he was full and perf xT:
for the ruling of the world, without doubt alfo he confidered him to have polTeffed tl.at
juftice which would enable him fo to do ; for the civil laws fay that when one thing is
granted, everything is granted without which that one could not be ; but without juftice the
world could not be governed. Wherefore, fince the government of it had been coniniittcd






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230 On the Law of Nature. [part i.

to man by the Lord, we muft needs confcfs that juftice alfo was beftowed upon him at the
fame time, and this was not only thus inclufively ordained, but was afterwards accomplifhed.
Solomon, that wifcll of men, confidcring rhclc things, fiiith in L'.ccicfiaftes, "This only
have I found, that God made man upright." Now he was not made upright without
polTefrmg uprightnefs, even as he is not a ftrong man wJio does not poflefs ftrength ; or ho v
can any man be judged healthy if he be opprefled with ficknefs ? The firft man, thcrefon-,
poffeffed uprightnefs at his creation, fince Solomon thus declares him to have been upright
then. But whether that uprightnefs was julVice, which is the mould and rule ot all
government, it becomes us further to examine. Now Anfelm, defining juilrice, faith that it is
"rectitude of will obferved for its own fake," and, as a definition ought to be convertible with
the thing defined, if juil:ice be reftitude of will, it muft needs be allowed that a right will is
juftice. Wherefore alfo the Civil Laws fiiy that juftice is "a conftant a'ld perpetual wdl
affigning to each and every man his right " Whence it follows that the firft man, as he
was created upright, poflefied a conft:ant and perpetual will aftigning to every m; n his
right ; and, confequently, he poflelTed juftice, by which he was able to rule the whole world,
and thus prefide over every creature. And that in the begiiuiing of his creation he liati fuch
a will, and that all the foregoing has been moft rightly concluded, St. Auguftine, in ihe J4th
Book De Civ. Dei, affirms, when, embracing all this as it were under one fentence, he fays,
"God made man upright, and thereby of a good will ; for without a good will he w.iul I not
be upright; a good will, therefore, is the work of God, feeing that He made man in pof-
feffion of it." Such are his words. Nor is it any objecTiion to this that the firft man,
tranfgreffing the Divine Law, did notpoflels a right will, but ai: unrighteous and incon tant
will, fo that we cannot call it perpetual ; for it did not aftign to every one his right feeing
that it withheld from the Lord God that which was His right, b'or that will by which the
firft man worked fuch evil was not the will conferred upon him by the Lord, which wej have
above defined to have been juftice ; but the firft man abandoned that good will, when, with
his will which he had himfelt made unrighteous, he committed a crime fo abominable. ' P'or
the firft will v/hich the Lord conferred upon him could not be properly called his own will,
if he had not had the power of abandoning it when he wilTied. But that firft; will itfelf was
conftant and unchangeable, becaufe it willed nothing but what was conftant and uncliangcable,
although the firft man, by the incitement of his own inconftant will, repudiated it; and thus
the will with which the firil man lb unrighteoufly played the adulterer, was not that will
which is defined to be juftice, but another, which deferveth not to be called ji ftice but in-
juftice ; for it pofTeffed not that rediitude which Anfelm defined to be juftice, concerning
which, after a little, we muft more clearly treat in what is to follow.



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



231



Chai'. XXXVI.



Juftice and the Law of Nature are of one quality and of accidental effence.

^^1^ UT is not juftice, which the Lord commanded to be made in the form aforefaid,
that Law of Nature whofe beginnings we are in fearch of? Vainly indeed do we



unfold the manner of the nativity of juftice, unlefs by the fame explanation we
difclofe alfo the origin of the law of nature, which we have determined to fet forth ; which
we fhall never do by the way we are now taking unlefs we demonftrate juftice and the law
of nature to be of one quality and eflence, although accidental ; which, if we do, when the
origin of juftice is made clear, then is the origin of the law of nature equally difplayed.
Therefore, before we turn to anything beyond, let us inveftigate the nature and viruie of
juftice and of the law aforefaid, as though they be of the fame efficacy and virtur. In
courfe of which labour, firft of all it behoves us to inquire whence jus is fo called, or
whence the reafon of that name proceeded, io that, perchance, in exploring the mode of its
emanation from the depths of juftice, we may have the good fortune to penetrate thoroughly
into its very nature, which once known, its identity with juftice, or the difcrepancy by which
they are feparated, will lie clear and open before us. The Civil Laws fay that jus is fo
called a jufiitia (ff. De Juftit. et Jure). But how doth the etymology of the name advantage
us in this fcrutiny .'' For etymology and derivation which grammar teaches inftrui5l lis in the
nature rather of words than of things. Notwithftanding St. Ifidore, in his book of Etymo-
logies, makes known to us fome natures both of laws and of other virtues by force of
etymologies; and it is not to be thought that thofe illuftrious Civil Laws have inconfidvrately
afterted _//« to be fo called horn jufiitia. Wherefore, we are bound to conjeiilure that as jus
hath derived its name from juftitia, fo from the fame it hath derived the origin of its
generation, and is thus entitled to be diftinguifhed by the name of its parent, lluis le.\
and rex, not without a caufe of like affinity, obtain their names a Uganda and regendo, as if
from their proper parents. Neverthelefs, it we fay that jus proceeds forth from jujlitia, as
a fon from the fuhftance of his mother, then, fince the fon can project himlelf beyond the
maternal limits, we ftiall needs confefs that jus alfo may be far removed from juftice, and as
this is not true, we muft of neceffity fearch out the mode and nature of another generation.
F'or we cannot fay that jus hath taken its name from juftice, either by way of relation, as the
fon to the father, who in point of fubftance, as aforefaid, may be either abfent or prefent. or
by way of abftraftion, as humanity from man, which is always other than the concrete, finct we
are endeavouring to prove that jus is ever the fame as juftice; but as the luftre from the
light, the heat from the fire, the gufliing ftream from its fpring, fo doth the law (jus) ot
nature come from juftice, yet fo as not to be other than it, even as the luftre is not other than
the light, the heat than the fire, and the running water than its fountain. And as thefe



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232 On the haw of Nature. [part i.

emanations or produ(5lions are the fame as the things out of which they emanate or are p-o-
duced, but the latter, becaufe emanating in and through the former they pour forth thiir
forces in diverfe modes, obtain diverfe names, fo alfo the law of nature is the fame thing as
juflice in nature, and of the fune quality, excellence, and eflicacy, although jus and JLiftice
pour forth tlie virtues of their unity in diverfe modes, and therefore obtain diverfe names.
For as the human mind, according to Augurtine, in his fifth book, De Trinitate, begets
knowledge, and mind and knowledge produce love, fo that mind is, as it were, the parent and
knowledge the otfspring, and love proceeds from both, — -fo jurtice begets law (Jiis), and
juftice ani-l law proiiiice equit}', and law and natural equity are one with juilice, as knowledge
and love are one with the mind from wliich they flow. Wherefore, if we teach perfectly the
origin ofjuftlce, we teach at the fame time the generation of the Law of Nature.

Chap. XXXVII. . '' ■

Law is born of Jujlice^ as tJie Son from the Father in things Divi/ie.

mI pij^rf UT left fuch high things being difplayed, fo to fpeak, under an humble in age,
f}] C^^B* fhould feei7i to be treated with any lack of reverence, we are glad :o raile
i^,^:=^i^'^ them out of higher fimilitudes, as from a nobler fountain. St. Au.;juline,
in his book De Dignitate Conditionis Ilumanae, compares man's memory to God the
Father, his intellecft to the Son eternally begotten, and his will, proceeding t -om
memory and intelled, he makes an image of the Holy Spirit, which proceeds eteri .dly
from the F'ather and the Son. Not that thefe powers are eternal, like God, b it ;hat
thofe three powers, perpetually operating, bear within them the image of the Eternal
Unity. For as three Perfons in God are one God, fo thofe three powers in thel foul
of man are one ioul, even as the fame Augufline in the fame place more largely and clearly
declares. So alfo thofe fupernal fpirits, than whom the Lord made man a little lower j He,
as the facred eloquence witnefleth, made lovely with the llamp of his own likenefs. Thus,
alfo, the other creatures of his handiwork, whatfoever they be. He adorned out o^" the
plenitude of His beauty, fo that there is not a worm nor a creature fo fniall but th.it it bears
the traces of its Maker. Wherefore we are furely not at liberty to think that the
Lord left deflitute of fo great a gift that Law of Nature, which next to man's fubilance
He created with him the nobleft of this world's creatures. Whence as tie Almifdity
Himlelf diftinguifhed man by three fuch noble dignities, fo muft we think that He adorned
with three noble infignia, as with powers and dignities like to the others, that Law of Nature
which He would have to be His rule and inftrument for governing the world in things
temporal. Wherefore, as in God there are the Father begetting, the Son beg(jtten, and the
Holy Spirit proceeding from both, which three Perfons are one God, fo mull we think that



PART I.] On the Law of Nature. 23-5

in the Law of Nature there are jullice begetting, law (ywi) begotten, anJ natural equity
proceeding from juflice and hivv, which three nobilities, like footprints of (Jod, form one law
of nature. Nor can the writer be charged with the crime of rallmefs on account of this
opinion, feeing that the Lord hath woiked in like manner in other creatures ; for, as
the Philofopher lays (De Coelo et Mundo), there is nothing perfed: but IVinity, becaufe
three things are required for the perfedion of everything — that is to fiy, fubftance, virtue,
and operation. And Dionyfius fays the fame itr his book De Divinls Nomimbus.
St. Auguftine alfo fxys that in the fun there are his fubftance, ray, and heat ; the ray is
born of the fubftance, as the Son is begotten of the Father; the heat proceeds from both,
as the Holy Spirit is breathed forth from Father and Son ; the fun proceeds from none of
thefe, even as the Father is not begotten nor proceeding, and yet all thefe are one f m, even
as three Perfons are one God. In like manner, alfo, in the loweil: things the miag: ot the
Trinity may be perceived. For the fountain begets the llream as the Father doth the Son,
and the fountain and ftream make the pool, as the b'ather and Son produce the Floly Spirit,
and yet the fountain iHlies from none of thefe, even as the Father hath His exigence trom
none ; and notwithftanding in fountain, ftream, and pool there is the lame water, as in
Father, Son, and Holy Spirit there is the fame fubftance. And although in the footprints
and fimilitudes of creatures there be no true likenefs whereby the creature may be truly
admiilated to its Creator, no more than the fliadow to the body, the footprint to the toot,
or the image to the real thing, yet in all things fome likenefs, liowever feeble, is dilcovered
to their Creator. Wherefore we cannot fuppofe the law of nature to have been devoid ot fo



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