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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decide law-fuits by the rules of the law. It is, therefore, necedary for the parties iii this
cafe to come before a judge, i( they would gain the peace they feek by obtaining a know-
ledge of the truth. For it is only a judge who can by his authority reveal truths that lie
concealed, and untie by decifion ol law the knots of litigation. Let us now therefore
inquire what competent judge can be chofen in this difpute. The Civil Law fays that Juftice
is " a conftant and perpetual will afiigning to every one his right;" now fhe who afllgns to
every one his right, can without doubt allit^n their rights to the dlfputants in this cafe alfo.
Jullice is alio a judge, for a judge is fo named from pronouncing judgment {fjiidex quafi jus
diceiis), and Hie pronounces judgment, fince, as the Laws fay generally, judgment is given
by her; fhe is indeed herfelf the judge of all human acflions, fo confl:ituted by the Supreme
and Almighty Lord. Hence, no more powerful judge, nor, in our cafe, more fuitable can
be thought of than flie is. Nor is it any obiLacle to her power that women are by 1 iw
excluded from the judicial office ; for although the word juftice {jujlitia) be of the feminine
gender, ftie herfelf is not a woman, nor of the female fex ; for fex hath no place in virtues
any more than in fpirits. Let, therefore, the parties aforefaid draw nigh to Juilice, and let them
effeftually afk ot her, that fhe condefcend to decide their quarrel by her fcntence. Truft-



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250 O}} the Law of Nature. [part



II.



ing, therefore, to this found advice, they made good halle fo to do, and came to her, anci
with faces prone on the earth, addrelled her in thefe words : " O greateil of Judges, on whom
the Lord hath conferred not only, as on man, the power of ruhng the globe, but alfo the
power of ruling man himfelf in civil fociety, take companion upon the world now wandering
aftray beneath the clouds of our quelHon, and agitated, like a troubled fea, by no fmall
tempeft. Clear up by thy decree the minds of men darkened by their ignorance of this
queftion, and unlock the truth of this riddle. Come, come and judge our cafe, and by thy
decifive fentence difTolve this litigation. For in thee we acree as our judn;e, and we appoint
thee arbiter in this caufe." JulHce, upon this, embracing thefe things with benevolent mind,
and feeling a pious compalfion for the world toiled about beneath the gloom of this igno-
rance, touched alfo by the calamity of the inhabitants of the kingdom for which the faid
parties were contending, whom flie iiiw trembling with fear under their unll eathed fwords,
at length took upon herfelf, and that cheerfully, the burden of judgment in this caufe ; then,
proclamation having firft been made in accordance with her jurifdidion, after the manner of
law courts, fl-ie alligned to the parties a term for fetting forth tlieir petiuoiis in form of law ;
upon the arrival of which, and Hie lierfclf being feated in a place alligned as judsTmenc-k at,
the aforefaid parties, to wit, tlie Daughter, the (jrandfon, and the Brother of the ivii g,
appeared in perfon before her, and fevcrally petitioned that the kingdom of the deceafet king
might be adjudged to him or her by hereditary right. And rirll the King's Dau rhur,
addreding the Judge, began as follows.

Chap. II.

The title of the King's Daughter.

tf/^)^ MOST prudent of Judges, Ruler of the world ! The late moft illuftrious Pr nee,
rVV'O/ ^ King of the All'yrians, monarcli of the whole of Aha Major, my lord and faiher,
fu^fer^^ who in temporal matters acknowledged no fuperior, departed this life having no
fon, and left, as heir of his whole kingdum, m)felf his only daughter; whereat my fonj Wie
offspring of my womb, now prefent before you, being grieved, had the boldnefs, in lefpi'-e of
nature, to exclude nie from the kingdom, and to invade and pofltfs, or rather ufurp, it as his
own. In like manner, alio, which is llill more fliocking, my uncle, who is alfo now prefent
before thee, has done me like wrong. He futlers not even my fon to enjoy tlu faid king-
dom either by mine or his grandfather's title. What, therefore, is the law in :h.is cafe, we
three, by mutual content, entreat thou wouldeft deign by thy fentence to define. It were in
truth a thing more wondrous than any miracle, if a grandfon by a daughter fliould, in the
lifetime of his mother, and to her exclufion, fucceed to the patrimony of his grandfather.
But it would be ftill more monftrous if, in the lifetime of the daughter of the deceafed, and



PART 11.] On the Law of Natui'e.



251



of that daughter's fon, the brother of the departed king might hiwfully polTefs his empire.
Am I alone ot womankind e:;cluded by law from inheriting from my f.uhcr, or fliall the
magnitude ot the inheritance avail to dilinherit the offspring, and endow my father's brother
with my father's patrimony ? Surely this would not be confonant to natinv, but moll alien
from the Divine law. For in the book of Numbers, chap, xxvii., tlie Lord fpeaks thus:
" When a man lliall have died without leaving a fon, the inheritance fliall go to hlsdauuhter ;"
by which fentence the Lord excludes not from the daughter's fuccelfion either the higheft
fummit of rule, or any dominion of whatever magnitude ; but decides that a woman is as
capable of receiving a kingdom as any private domain. Wilt thou, then, O difcreetell of
judges, hefitate to fandion what the Lord hath fanftioned ? The law which the Lord hath
declared lies open before thee molt clear. Do, therefore, according to the fafhion which
was fliown thee in the Mount, and be not flow to end this quarrel by thy decree. Thefe
things the Son heard witli eyes call: down upon the earth ; then lit'ting them up toward the
Judge, he addrelTed him as follows.



Chap. IlL
Reply of thti King's Grandjun to the fir ft allegation of the King's Daughter.

aTh:T^OST truly, O beft of Judges, has my mofl dread millrefs and mother ftated
^K^^llf throughout her fpeeth the truth cor.cerning the matter of faft which is the
^i^^4^ exciting caufe of this difagreement. Woidd that flie knew the ruHng of the law
as well as flie knows the truth of the fads ! Thou wouldft not then, I think, be troubled
with the fit'ting of this cafe. It is ignorance of law and not of fac^ which urges her on to
this luit, for, without an adviler, the pious fimplicity of a woman cannot diflinguilTi the
difference that exifts between the rights ot fuccefflon to a kingdom and the rights of fucceflion
to a private eftate. Human law doth not regulate a public office as it doth a field, nor a
public as a private funftion. lu)r if my intelligent mother would revolve in her mind how
thefe things are, flie would of herfelf, I fulpecfl, very fpeedily withdraw from this fuit, and
would not reproach her ion as degenerate, althotigh lie now burn to enter upon and govcn
his grandfather's kingdom, to which it is not lawful for his mother to fucceed. But the
lowly office and the private fervice, in which the cares of the man may be greatly lightened
by the woman, nature doth not forbid the woman to exercife, who has been formed fur his
help ; for luch duties are fuited to the female fex, and to fuch the woman is compelle 1 by
Nature, who fubjedts her to the man with a fubje6tion both domeflic and focial. The parents
of Sarah, the wife of Tobias the younger, duly confldering thefe things, admoniflied her to
rule her houfehold, and govern her houfe. (Tobit, chap, x.) But from the dilcharge of
higher and public offices, which are fit for men alone, as are the offices of Conllable and



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252 0)1 the Lmv of Nature. \



PART II.



Marfhal of any kingdom, Nature hath exckided women ; wherefore fuch offices cannot
defcend to them, fo long as everything tiiat defcends tends only to 'ts natural place. And
if fuch offices be not allowed by nature to defcend to women, how can the office of King,
which is public, and the greateft uf all earthly offices, inafmuch as it rules all men, and is
fubjeft to none, — how can it defcend or be fuited to the woman, whom nature hath fubjeded
to the man ? P'or nature makes a woman unwilling to reprefs with the fword the audacity of
men, or to adjudge criminals to death, according to their deferts; and yet nothing is more
incumbent on the regal office than thcfe ads. Therefore, that the office of King is foreign
to woman's adminiflration, is in every way rhe decifion of Nature's law; for it is not as my
mother complains, that the law removes her alone from the paternal inheritance ; for all her
father's private poffeffions, fuch as houfes, fields, and all kinds of land, which things woman's
nature is capable of holding, flie polfelfes without the leaft hindrance from me her fon ; nor is
it the vaftnefs ot the domaisi, as ihe conjeilures, that in any way bars her from fucceed'ngto
her father's patrimony ; but it is only the fupreme royal dignity which flirinks from iinun
with her, jull as the above-named offices proper to men alfo refufe to unite themfelves to h .-r,
although they be unadorned and lowly. At the commencement, however, of this exa 7iii a-
tion, let certain falvcs, as it were, of refleiflion fuffice ; and if they cannot alleviat; tie
fwelling of maternal grief, we will then take care to remedy her complaint with mere
powerful unguents.



Chap. IV. , ^

T^he Grandjop's reply to the Jecond aUegation of the Kings Daughter.

MOREOVER the Divine judgment, whereby, on the failure of male ifllie, the I'.ord
l^\V^P hath declared that women ihould fucceed to their parents, will not influence tjiee,
O Judge, for thou weigheft the merits of that judgment in a jull: balance, and
no truth of Holy Writ efcapes thee. For it is not hid from thee how the Lord promifed
to Abraham, to Ifaac, to Jacob, and to their leed, the Land of Canaan as an hereditary pof-
feffion ; nor how the five daughters of Zelophehad, who was defcended froni ManalTeh, the
ion of Jofeph, Jacob's fon, when he died in the wildernefs without male heirs, — how they
demanded of Mofes, that he would decree that part of the Promiled Land vhich their
father, had he lived tor it, would have had, to themfelves to poflcfs it in his right ;
and, when Mofes referred this cafe to God's decifion, the Lord fays — " The d ;ughters of
Zelophehad afk a right thing ; give them a pofleffion among their father's kindred, and let
them fucceed to him in inheritance ; but to the children of Ifrael thou (halt fpeak thefe
things, when a man dies without a fon the inheritance Ihall go to his daughter, &c." Are we
not taught by thefe words that in the Land of Promife females did not inherit like males,



PART 11.] Oil the Law of Nat II rt



^53



inafnuich as the women did not at all fliarc with the males the inheritance ot' their parents?
But, male ilTue failing, the Lord was vvilliny that they lliould enjoy the inhei-itance of their
parents. And what has this to do with our cafe, who are tlifputing about a kingdom? A
kingdom is not, like a private patrimony, to be divided among males, and fo not
among females. It is only a political dominion that admits a plurality of rulers, but a royal
dominion never. When this fentence was given, the children of Ifrael had no king, nor had
they one tor three hundred and fitty-fix years afterwards, according to the reckonint^ of St.
Augulline in the iSth book of his De Civitate Dei, and Jofephus the Hiftoriographer of
the Antiquities makes the number of years mucli greater. Hence there was no quellion
concerning the fucceil'ion to a kingdom at the time when this Divine decifion was given ; fo
that there can be no reference to a kingilom in the reply to the queftion whicli conferr d fuch
a right of fucceifion, as it did, on women. Befides, it was only to the children of Ifr 'A that
the Lord publiflied that law, faying, " Thou fhalt fay unto the children of Ifrael thefe
things;" wherefore another nation is not bound by this decifion. Hence there are many
other nations which have not hitherto been ruled by this law. b'or in the Kingdom of
France men and women indifcriminately fliare the paternal inheritance, and in the Kingdom
of England neither do the males divide among themfelves the inheritance, nor do the women
fhare with the men, but the eldeft fon acquires the whole right of the parents. The fame
likewife is the cafe m many other provinces and kingdoms. Befides, private patrimonies
ought to be lliared by women as by men, in oi'der that they may have wherewithal to
fupport themfelves. But fuch is not the caie with public offices. For concerning a kingdom
St. Thomas fays, in his third book De llegimine Principum, that the kingdom is not
made for the king, but the king for the kingdom. And it is hard to think that women
can be of that fort, fmce it becomes them better to be ruled than to rule. Nor is the
government of a kingdom by women advantageous for them or for the kingdom. Where-
fore, although the aforefaid law lays it down in a general maxim that the inheritance of a
man, who dies without a fon, fhall pafs to the daughter, we difcern that this is to be under-
ftood only of private patrimonies, which the people and the vulgar poflefs, and not of public
and royal dominions. For after the proclaiming of this law and before the creation of a
king in Ifrael, and ever afterwards, all the private pofielfions of any deceafed perfon were
divided equally among all the fons, and, fiiling them, among all the daughters, except that
the firlf-born received a double lliare of all the goods ol the deceafed. Nor had the lither
any power of changing that law from affeftion for a more dearly-loved daughter, as is clearly
manifelt from Deuteronomy, chap. xxi. But with refpeift to the right of reigning the laws
of the Old Teftament are very different. For the kingdoms of Ifi'ael and Judah were
neither divided among the fons of the kings, nor always defcended to the firft-born, certainly
never to the daughters. The father alfo fometimes made that fon king whom he lov^d- bell,
though he were not the firft-born, as may be clearly learnt from the Book of Kings. A



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2 54 On the Lcnv of Nature. [



PART II.



difference of a like nature alfo between public perfons and private perfons was brought
about by that law; for although it prohibited any of the children of JlVacl withcjut diltinc-
tion from marrying out of his own 'j'ribe, yet it allowed the 1 ligh Piielts and Kings to take
wives from any Tribe whatever. Thefe confiderations make it evident that the aturefaid
law, which is fet forth in the Book of Numbers, ought to be uiulerifood to fpeak of private
pofledions, and in no wife extends itielf to the (ucccllion to kingdoms, and ct]nfeL|uently does
not repeal nor can be an obftacle to that right of fuccellion of which we have f]Hiken, in the
cafe of royal and public dominions.

Cfjap. V.

Women never had th.e rigJit of Jucceeding m the kingdoms cf Ij'rael and Jh iah.



OREOVER, in the whole leries of the Old Teflament there is not a trace ci i
/a p woman reigning, by right of her parents, in Ifrael or Judah. Nay, that women



^9A3«^ ought not to iucceed to thofe kingdoms the fiicred utterances of that Teftanunt
abundantly inform us. In the firfl: place, indeed, becaufe, before the children of Ifrael fad
any king, the Lord, by the mouth of Mofes (Deut. 17 chap.) commanded that people t lat
they fhould take unto themfclves no man as king except he whom the Lord himlelf fhould
direft. In like manner, Mofes, in the fame place, explained alfo how the king fo chofen
fhould behave, warning him to aft according to that which he taught in that ])lace, in on'er
that he and his fons nfight reign long over Ifrael. Lo ! how Moi'es fays tliat the king's fons
could fucceed the king ; but that the Lord granted right of fucceffion to tlie daughters is rot
read either in this place or eliewhere in any page of Holy Writ. And, befides, Ahaziah,
king of Ifrael, died without a fon, and was fucceeded in the kingdom by his brother Joram|,
as is written in the Second Book of Kings, chap, i., where it is exprefsly written, that he had
not a fon. But it is not written that he had not a daughter, though it would have beer
neceffary fo to write, if by his death he had, as that Scripture tells us, transferred the
kingdom to his brother, while it was lawful for a daughter to liave i'ucceeded him ; and fo,
alfo, we are hereby taught by implication, that a daughter could not have lucceeded him in
the kingdom. In like manner, as often as the Lord threatened the kings of Ifrael, as
Jeroboam, Baafa, Ahab, and other idolaters, that on account of their wickednefs He would
put an end to their kingdoms, Ele almofl: as often, among the weighty words of his tireaten-
ing, fays that He would not leave o^ them mingen/em ad parietem. Now this a'I'on is
the aftion of a man, and not of a woman, the Lord thus diftinguifhing the fons of thole
wicked men from their daughters, as the male dog is diflinguilhed from the female, a
diftindlion which He would certainly not have made if the female, like the male, could have
fucceeded to thofe kings ordained to dertruflion. In like manner, alfo, the extermm.itors ot



PART 11.] On the Law of Nature. 255

thofe kings are faid to have flain their fons and not their daughters, although Ahah, whofe
feventy Ions Jehu had {lain, and other Icings, whole numerous ions were put to death, had,
without doubt, fome daughters among fo many fons; and Athalia, dauglUL-r of that moft
wicked woman Jezebel, who believed that fhe had flain all the offspring of the kings
of Judah, even flew the fons of her own fon, in order that ilie might herfelf poflefs that
kingdom in greater fecurity ; and yet llie was not at all anxious to kill JeholliL-ba, the king's
daughter, and wife of the High Prieft. iMom tliefe and many other evidences, in which the
Books of Kings abound, we are taught, that, although in the cafe of private patrimonies the
laws of the Old Teflament have allowed women to fucceed to their parents, they have by no
means promifed them the fuccellion in the cafe of kingdoms.



Chap. VI.

The Grandjoiis Title to his Grandfather's Kingdom.

MKiOREOVER, as the huitandman makes not hafte to fow the earth, until he
|| hath firlT: rooted up the briars, in the fmie way it was not until I had firft cleared
^ the ground of the arguments put forward by the noble lady, my mother, that the
time came fur me to difclofe the title by which I claim the kingdom. It is now, therefore,
the fitting moment for me to untold the right by which the kingdom of my grandfather
belongs to me, even in the lifetime of my mother. She has herfelf, however, in no obfcure
or humble manner made evident that riglit, in that flie afferted that that nioll Serene Prince,
my lord and grandfather, formerly king of the Affyrians, died pofleiled of that kingdom
without leaving male iffue ; wherefore, fmce, owing lo the caufes before fet forth, that
kingdom could not tall to her, it is to me, that king's grandfon, whom tio right debars from
the poffedion of a kingdom, that it ought, in like manner, to defcend, and by all right does
defcend. Thus our Lord Jelus Chnl!:, in the lifetime oi his mother, wms, by hereditary
right. King of the Jews ; wherefore, while he was yet crying in the cradle, the Magians laid,
" Where is he who was born King of the Jews r" Did not lie who was born King of the
Jews poffefs that kingdom at the very time of Mis birth ? Wherefore, fmce Chrilf had no
human father, we muft of neceffity acknowledge that, as He reigned, He reigned by right ot
His mother's parents. Behold, how we are told in one and the fame fentence ot Holy Writ,
not only that the fon is permitted to reign in riglit of his mother, but alfo that the iiother
herfelf is not allowed to reign. The Son is called King of the Jews, but the Mother, who
is Qiieen of Heaven, is never called Qiieen of the Jews, nor could J le Himlelt, at tl e (;.me
time have been king, and his mother queen of one nation by hereditary right. Thus, alfo,
all the doubts and difficulties, if any there were, of our cafe are made clear by the holy
fentence; and the fame judgment wliich we beg tliee, O molf excellent Judge, to form was



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256 0)1 the Law of Nature. [



PART II.



in old times uttered by the Three Kings, under the infpiration of the Moly Spirit, and
miraculoufly guided thereto ; wherefore, there fcarce remains any difficulty for thee in
pronouncing judgment in this thrjuitc. Pronounce, therefore, that wliich is pointed out by
the dic1:ation of t!ie Holy Spirit. When the King's Brother hatl heard thefe words, he was
ftirred up, and fpoke as follows to the Judge.



Chap. VII. i

Tilt' Propofitiun of the' King's Brother.

(t^V*^ MOST learned of Judges, who, like a man, explorell: the hidden things of the
' Divine counfels, whence it belongs to thy virtue to unfold Divine a; well as
Ul human reafon in this difpute, clear up by tlie rays of thy wifdom t le truth,
which the dark difputation of Mother and Son hath concealed. l-~or although the mother hath
of her own accord related the truth as to the matter of \:\i\ about which we are contending,
the truth touching the right which we are in fearch of fl^e has hidden under thick clouds of
error. But although the fon, impatient of his mother's mirtake, from which he fears injury
to himfelt, has by an impregnable argument proved that the fentence in the Book of
Numbers, brought forward in behalf of women's rights of fucceifion, cannot give lupport to
his mother, and has moll truly alTerted that in the cafe of a kingdom a woman is not able
to lucceed as in the cafe of any other patrimony, yet the legal caufe which thus excludes
her from the crown he has, out of I know not what partiality, very faintly demonftrated,
and has very cunningly fupported his title to fucceed to the kingdom now in qucftion
beneath the fhadow of certain hftions. But, inafmuch as nothing is rightly known which is
not known by its caufe — in the words of the Philofopher, n the fecond book of his
Metaphyfics: " We know not what is true, apart from its caufe, and we think we know a
thing when we know the caufes themfelves;" — left the fon, tempted by partiality tor his
mother, or by the hope of fucceeding through her to the faid kingdom, fhould defire this
difpute to be pafTed over without laying bare the caufe aforefaid, to the injury of my right
and title, I will explain, as beft I may, that caufe; and after that I will ftrive to recite the
title which he has fabricated for the kingdom. If, after having gone through thefe matters,
I ftiall have duly demonftrated that neither mother nor fon have any right to the faid king-
dom, I befeech you to declare by a final fentence that the kingdom of the departed king
belongs by hereditary right to me his Brother.



PART II.] On the Law of Nature. 257

Chap. VIII.

He Plows ^ in the fir ft place, the reafon why a Woman fucceeds not to a Kingdom,
as to any other property.

iT^^r^HE Philofopher, in his treatifc on Animals, Hxys that the members of women, which
f^J "^ ^""^ ordained for the generation, gelation, and nutrition of offspring, Inch as the
^l^rj^^ belly, the pofteriors, and the brealb, are larger than thofe of men, but that their
other members, fuch as hands, feet, arms, and legs, are fmaller than thofe of men ; that is to
fay, the bones and fmews in which flrength refides are fmaller, weaker, and of lels virtue in
women than in men. He alfo fiys that the woman is a muk'^ted male {mas occafionattis),
that hence, as fhe is deficient in her phyfical framework, fo flie is in her reafon ; ai d that on
account of their lack of heat and deficiencies in conftruftion, women are timid, and tilled with
too great a fear of death. Is it not then the cafe that, as from thefe fa6ts we can perceive
that the fhape and fize of the belly, loins, and breafts of a woman, fliow her duties to be
in certain refpeds naturally different from thofe of man, in like manner both the fize and
ftrength of other members in men have declared their offices to be in certain refpefts naturally
diftinguifhed from thofe of women } For in this way the claws, teeth, and jaws of lions,
which are ftronger and larger than thofe of other wild beufts of prey, fhow that thei-
prey is larger and more powerful than that which other wild hearts devour. In the
fame way the eagle is armed with ftronger beak and talons than the kite. Thus, alfo, the
monfter of the deep furpalTcs in fize and itrength the fifhes that it devours. So that there
is no living animal, bird, or fifh which doth not by its organs, form, or powers lignify the



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