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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office for which nature created it: who, as the fame Philofopher in the fame work fays, in
the 8th book, gives to every animal members adapted to the work for which flie defigned it. j
What workman ever framed an implement which was not a .apted to the work he intended
to do? Thus the axe is fitted for hewing, and the blunt mattock is adapted for digging, i
Wherefore, feeing that thofe other members in women are fmaller and lefs efficient than thofe
of men, the bodily organs and powers of women manifeftly prove them to be formed for '
leffer and inferior duties than men. Wherefore St. Thomas fays, in the 4th book o.'" his
De Regimine Principum, that, as in a polity the various offices are diilinc^, fo alfo in
economy they are divided. For the man devotes his attention to affairs outfide, the woman
hers to the internal bufinefs of the family. Whence it is the duty of a woman, as he himfelf
fays in the fame place, to keep quiet at home, and to look after the concerns ot the houfehold.
Wherefore Solomon, at the end of Proverbs, attributing the fortitude of a woman to this alone,
has commended her exceedingly for her care of her houfehold, as the whole fum of her duty,
compofing, as he fays himfelf, a treatife thereupon and a Canticle, (the firll: letter of each
verfe following the order of the Hebrew alphabet,) which begins in this way, ^' Who fhall

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258 On the Ltt'iv of Nature. [



PART II.



find a brave woman ?" in which he refers the whole regimen of women to domeilic aftion,

as will be clear to any one who confiders the text with care. Wherefore the Saint, while he

declares the woman to be by nature fubjeft to the man, fays that flie is put under him in the

way of houfehold {yconoiiiiLd) fubjeftion ; and thus her whole duty is confidered to be of a

houfehold and domeftic nature only, efpecially as nature has not provided lier with appliances

fuited to other purpofes. Wherefore it now becomes proper to explain what the duty of a

king is, in order that we may thus be taught whether a woman is competent to perform it.

Now the Apollle, in the 13th chapter of the Romans, fpeaking of the duty of a king, among

the reft, fays this, " For he beareth not the fword without caufe, for he is the minifter of God,

a revenger to execute wrath upon him that doeth evil." In like manner alfo St. Peter, in his

firft Canonical Epiftle, chap. ii. fays, "Submit yourfelves to every human creature for God's

fake ; whether it be to the king as fupreme, or unto governors, as unto the a that are fent

by him for the punifliment of evil deeds, and for the praife of the good ; " by 'vhich words wc

are taught that it is the king's office to reprefs the bad with the fword, and to defend and

cherifh the good ; fo that he hath the duty not only of fighting, but alfo of judging, i le ice

the children of Ifrael, when alking for a king, faid to Samuel, "Our king Ihall judge as,

and go out before us, and fight our battles for us." (i Sam. chap, viii.) Behold, thei eft re,

to fight and to judge are the duties of a king! Is then a woman able to exercife that ofi^ce,

Fighting and or is the female fex equal to fuch duties ? For fighting is the greateft of all the aftions ot m; n's

the^lolde'ft'of bo'^yj ^"'J j'-"%''''g 's the loftieft operation of his fpirit. For the performance of the greaieft

jII human adtions of the body nature has adapted the limbs of men, which fhe has made of larger fize

require the ^""^ greater ftrength than the correfponding limbs of women ; and for the greateft acnieve-

highelt ments of the fpirit nature has given to man a perfeft reafon, in refpeifl of which ft e las

dt^iTfce of *^

nmj made the woinan the weaker veflel. Were not, then, thefe greateft adions of the body and
fpirit alligned to man and not to woman by nature, when fhe gave to man alone the perfedl
power of performing them .'' Who will ever do that which he is incapable of doing } ' For
the performance ot thefe aiflions nature hath given to women neither the organs nor| the
ftrength of nrind. Thus, therefore, the office of king, which alone hath its exercife in thefe
higheft afts ot men, nature hath granted to the man alone, and the female fex ftie .hath
made alien therefrom. Have we not now, then, rightly ftiown the caufe why women cannot
fucceed their fathers in the royal office, nor even in thofe offices of a like nature above
fet forth, fo long as the Law ot Nature cannot join together that which Nature herfelf doth
feparate ?



courage
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PART II.] 0?i the Law of Nature.



259




Chap. IX.

Here he makes a fuller difclojiire of the Jaid caufe, and proves that the King's Daughter
has no ground of complaint.

^OCRATES and Plato have adjudged it to be matter of public policy that women
^ (liould go to war. But Ariftotle, in the fecond book of his Politics, has con-
]^x^ demned their opinions by the foundeft arguments. Soalfo has St. Thomas done
in his fourth book afore-mentioned. For women have not ftrength fufficient to meet men in
conflift, feeing that nature has made men itronger than them ; nor are they bold enough to
encounter the terrible array of the camp, feeing that nature has made them timoro as ; nor
are they able to efcape from the perils of war, iince nature has not made them fagac ous like
men. And for this reafon they cannot aft as judges, fince of all things human the judicial
funftion requires the moft difcernment. From a confideration of thefe things lawgivers
have not fuffered women to be judges, nor to hold a public magifterial office, and confe-
quently, it would feem, there remains for them no concern with the office of king. (ff. De
Regulis Juris, Lege Femhhe.) In like manner the facred Canons alfo have denied to women
the faid offices, (xxxiij". q. v. Ca". Alulieretn.) Moreover, fince nature, as the Philofopher
fays, works in the beft way in all things, becaufe fhe is herfelf guided by an Infallible Agent,
and likewife is never waftting in necefiary inftruments, as St. Thomas very often relates in the
faid book — if nature had ordained woman, who is weak, timid, and of a lefs perfeft reafon,
tor duties that require the greateft courage, boldnefs, and authority, fhe would not have
worked all things in the bell: way ; nay, fhe would have even been wanting in things necelTary,
in affigning an unluitable, inconvenient, and inefficient inftrument for fo great an office. The
Philofopher, alfo, in the fecond book of the Politics, fays that a city is badly governed by
women. Is it poilible to doubt that a kingdom would b' ftiill worfe governed by them .''
And whereas in the firft book of the Politics he fays that the counfel of women is feeble, we
cannot doubt that their rule, efpecially over kingdoms, would be much more feeble. Where-
fore, whenever a woman hath made her way into fuch an office, it is not the force and
excellence of nature that hath done it, but the iniquity of a mind filled with an evil ambition.
And befides all this, art, as the Philofopher and alio St. Thomas fry, imitates nature to the
beft of her power; but nature works nothing except with fuitable and the fitteft inftrunents ;
art, therefore, which imitates nature, works not otherwife. Who ever hunts hare; with
cats? Nature difpofes greyhounds for the fields and the purfuit of hares, but c; ts for
ftaying at home to catch mice. It is a ffiame, as though a man fhould hunt game with
cats, to draw away from home, for the purpofe of governing nations, the woman whom
nature has fitted for domeftic duties. Nature did not make woman a fit inftrument for that
purpofe. An artificer is not fo inconfidcrate as to cleave wood with a mattock, nor a failor



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26o 0)1 the Law of Nature. [part ii.

lo carelefs as to entruft the oar to the hands of one with the palfy. A carpenter may fallen
planks to planks with glue, jull: as a mafon may unite ftones to (tones with mortar, but
neither carpenter nor mafon will find it pofTible to falten planks to ftones, either with mortar
or glue ; for no art can unite thufe things which nature utterly disjoins. Behold, then, a
fufficient caufe clearly fet forth why a woman cannot fucceed in a kingdom, efpecially in one
where the king acknowledges no fuperior. To the Mother, therefore, there is left no
matter for complaint. Wherefore it now only remains for us to make an end of the Son's
arguments, of which there are two, namely, that a grandfon born of a daughter ought to
fucceed to his grandfather in the lifetime of his mother; aiid that Clirift, while his mother
was ftill furviving, in like manner fucceeded to the kingdom of Judah ; with the firll of
which I proceed to deal as follows.

Chap. X.

He now proves that the Son cannot Jucceed to the Kingdom in right of his MotJier.

"3^F any one fliall have granted lands to a man and the i/Tue male of his body, und
that man has a daughter, but dies without leaving a fon, no one doubts that the
lands revert to the donor ; becaufe to that gift there is annexed a condition, m-
plied though not exprefled, viz. that if the donee fliall have no male offspring, the la. ids
fliall revert to the donor by his original right; and fuch a gift tacitly impofes on the
lands this condition, that only the male offspring of the donee fliall poflels them. And it
the faid daughter, after her father's deceafe, marry a hufband, by whom fhe bears a fon, we
cannot doubt that this fon has no power to recover the faid lands from the donor, who tl en
has lawful pofTelTion of them. How then can there be any derogation from the donor's
right, if the daughter in her father's lifetime have borne this fon in lawful wedlock ?
Can the hafte of his birth prejudice the right of the other, who contributed nothing 1:0
his begetting ? How filly it would be to imagine (uch a thing ! And in tliefe mattere
the certainty of the law cannot efcape our notice, fince cafes of tlie kind are of very
frequent occurrence in almofl; all the kingdoms of the world ; fo that in the fentenci'^s
of judges that certainty is very conftantly made known. For in the Kingdom of I'ranci^
when kings have alligned their dominions in the form above fignified, and the grantees
have left behind them daughters, and have died without male progeny, the kings of
that realm immediately refume thofe dominions, and from that time retain them by ancient
right of their crown, none ever refifting that right. And although, owing to ai unufual
cuftoni that prevails there, poffeflions of all kinds are fliared alike between the fons
and the daughters of the deceafed, yet the daughters have no Ihare with the males
in the cafe of patrimonies given under the above condition, nor have the fons of
daughters any part thereof with their uncles. The cafe is the fame in the Kingdom of



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PART II



.] Oil the Law of Natu?'e. 261



England alfo, where a gift of this kind is called a gift of entail. And where the eldeft
fon alone fucceeds to his father's inheritance, it fuch a donee has two fons, the elder of whom
begets a daughter who gives birth to a fon ; if that elder fon dies without leaving fons of his
own, the inheritance thus entailed, after the death of the grantee, fliall dcfcend to his
younger fon, and no (hare of It whatever fliall fall to the daughter of his elder brother, or
to her fon. Thefe f;i(fts are fufficiently well known to the prefent Writer, who tor more than
forty years fludied and praftifed himfelf in the laws of that realm, and at length difcharged
for a long time the highefh judicial' tundtions of that land. In what refpeifl, then, doth tht
cafe about which we are difputing differ trom the cafes jult quoted ? Hath it not been Ihown
that, as a kingdom owning no fuperior is proved to defcend to males alone, fo lands alfo which
have been conferred upon a man in the form now fpecified, are inheritable by the male fex
only ? Wherefore, by analogy, as thefe lands cannot defcend to a grandfon bo n of a
daughter, fo neither can this kingdom, which is held by a like right, defcend to the Gr mdfon,
who is now contending for it. And how can the mother tranfmit to her Ion a right v/hich
fhe herfelf is incapable of poffening ? The Rule of Law is, that no man can transfer to
another a greater right than is adjudged to belong to himfelf. Surely it would be a thing
more marvellous than any prodigy, if a woman, never pregnant, (liould give birth to a child,
and become a mother before fhe had conceived ; nor would it be lefs monftrous if the fon
fhould fuck, I will not fay barren breafts, but honey from the rock. Since thefe things are
altogether repugnant to nature, the law of nature decides that they cannot be done ; to alfo a
woman, whom nature fuffers not to reign, cannot tranfmit to her fon the right of reigning.
But further difculfion on thefe points hath neither profit nor pleafure, Icll the hearers fay.
Why doth this man bufy himfelf to adorn the manifell; truth ? Will he make the fun's rays
clearer by his arguments .'' I therefore ceafe, and haften to refute the fecond argument put
forward by the Grandfon ; fince it requires a much more lengthy method of reafoning tlian
thefe naked truths, nor can it be explained without the guidance of Holy Writ.



Chap. XI.

He here JJiows that Chr'ijl -was not King of the 'Jeivs in right of His Mother.

F our Lord Jefus Chrift had, by right of his parents, been King of the Jews, as the
King's Grandfon allerts, it were impolfible to give a rational explanation why, in
like manner, the grandfon himfelf Ihould not, by right of his parents on the
mother's fide, be king of the Atlyrians. But if by other right than that of fucceflion Chrill:
was King of the Jews, His Kingdom gives no fupport whatever to the faid grandfon in this
fuit. Now it is certain, and we firmly believe that Chrift was King of the Jews ; for that He
fhould be fo the angel promiied before He was conceived, in thefe words, " The Lord Crod




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262 0?i the Law of NatU7-e. [



PART II.



fhall give unto Him the feat of David His father, and He fhall reign in the Houfe of Jacob
for ever, and of His Kingdom there fhall he no end." And after He was born, the Magi
affirmed that He was King of the Jews, not only by right but in very faft, faying, as is
quoted above, " Where is He who is born King of the Jews ?" Holy Scripture abounds alfo
in many other facred utterances, by which we are clearly taught that Chrift was without doubt
King of the Jews. But, neverthelefs, the ficred hillory does not fet forth that he was King
of the Jews by hereditary and temporal right of fucceflion ; nor are we fo taugh*: by the
opinions of Catholic do(5lors. Nay, St. Matthew, the Evangelift, in the beginning of his
Gofpel, fliows that Jofeph, Mary's hufljand, was at the time of the birth of Chriil:, the true
heir to the kingdom of the Jews, and the true heir of every one of the kings who reigned
there from the times of David and Solomon — to whom that kingdom was granted and con-
firmed by the Lord, — until the carrying away iiito Babylon, and that the fanu Jofeph is the
lineal defcendant of all thofe kings. And although, after the time of that canying away
until the advent of Chriil, no man of the lineage of thofe kings liad been named king c.f
Ifrael or Judah, or diftinguifhed v/ith the royal diadem, yet the faid Evangelift fliows that the
right of reigning had come down to Jofeph by direcit line from the lail of the kings wha
reigned in that country before the carrying away ; and that Jofeph, alfo, was himlelf in like
manner defcended from all thofe who, during that interval of time, had the right to thi
kingdom of the Jews. In like manner, alfo, was he defcended from Judah, fon of Jacob, cf
whom his father prophefied, Hiying, " The fceptre fhall not be taken from Judah, nor a leader
from his thigh, until He who mufl be fent (Shiloh) come, and He fhall be the expeftation cf
the Gentiles." And that Jofeph was himfelf living at the time of the Lord's birth, and Ion;;
afterwards, the fame Matthew clearly reveals (Matt. chap. ii.). Wherefore, fmce two per 'on i
could not have been kings of the Jews by hereditary fucceflion at the fame time and jointly,
and fince it has been proved from the Gofpel that the right of reigning over them hjad
defcended to Jofeph, while the Magi affirmed, in the lifetime of Jofeph, that Chriil: was king
of the Jews ; we are therefore compelled to acknowledge that He reigned over them by
fbme other title than an hereditary title of defcent. And what his title was we have already
acknowledged, when we faid that, before He was conceived, the Lord promifed that Lie
would give Him the feat of David His father, who was king of Ifrael, and therefore of the
Jews alfo, and that He fhould reign in the houfe of Jacob, who was alfo called Ifrael, for
ever, and that of His kingdom there fhould be no end. But fince His kingdom vas eternal
and without end, of fuch a kind as no human kingdom could be, we can underftard without
difficulty that Chrift was King of the Jews in a fpiritual manner; king of that kingdom
whereof we daily fay to God, " Thy kingdom come;" which kingdom comes and goes here
in via. And Chrift Himfelf, when afked by Pilate if He were King of the Jews, without
denying it, fays, " My kingdom is not of this world." For He does not fay. My kingdom
is not in this world ; but He faid, " My kingdom is not 0/ this world." But His kingdom



'Ar<T II



,] 0?i the Law of Nature. ?.6 <



would have been both of this world and in this world, if the kingdom of the [cws had
defcended to Him from man by right of his mother, or by any other temporal right. Yet,
in truth, not only in a fpiritual, but alfo in a temporal fenfe, in faft and ol right, was He
King of the Jews. Thus when queftioned by Pilate concerning the nature of His kingdom,
He would not difavow his right, but faid, " Thou fiiyefl: that I am a king ; unto this was I born,
and for this caufe came I into the world, that I might bear witnefs to the Truth." Again, when
He fat upon the afs, He would have Himfelf called King ; and the people cried, '' Bleffed is
the King of Ifrael, who cometh in the name of the Lord ;" even as the Prophet fpake con-
cerning Him, " Kear not, daughter of Zion, behold thy King cometh unto thee, fitting upon
an afs"s colt." For, before a king had been granted to the people of Ifrael, the Lord, by
the mouth of Mofes, ftraitly commanded that no one /hould be appointed king, except him
whom the Lord fliould direcft. (Deut. chap, xvii.) Wherefore the Lord Llimfelf cli jfe Saul
their firft king, and caufed him to be anointed, and appointed him king. So, ikewife,
David and Solomon, Jeroboam alfo, and Jehu, and fome others the Lord himfelf made kings
of liVael and Judah ; and they were made kings not by title of fucceliion, but by right of
Divine appointment. Wherefore, though not by temporal right of iuccelTion, yet in a
temporal, as well as in a fpiritual fenfe, Chrill had been appointed by tlie Lord King of the
Jews and of the whole world ; of whofe reign there fhall be no end, and whofe Vicar on earth
is the Supreme Pontiff, poffeffed of the higheft power, to whom all earthly power is made
fubjeft, even to the kiffmg of his feet. Far be it then from us to think that a power fo
exalted as this had defcended from man by temporal fucceliion. Nor can thefe conclufions
be refuted by the faift that Matthew, at the opening of his Gofpel, promifed to conftrud: the
generation of Chrift ; which promife he certainly was not going to perform, if he made known
the genealogy of Jofeph and not of Chrill, a thought which all v.'ould teel to be a fin. For
that all whom he calls anceftors from Abraham to David inclufive, of which David Chrift is
very often called the fon, were anceftors of Chrift, is admitted by all ; but of the reft, as of
Solomon, and of all their defcendants down to Jofeph, whether any one of thefe was or was
not an anceftor of Chrift, the livangelift does not explicitly reveal ; yet he ftiows by impli-
cation that Chrift was born of the fame ftock as Jofeph, in that he calls Jofeph Mary's
huft)and; for if fhe had not been one of his Tribe it would not have been lawful for him to
have married her ; fince in the laft chapter of Numbers the Lord fays by Mofes, " Let all
the men take wives from their own Tribe and kindred, and all the women receive their
hufbands from the fame Tribe." Wherefore that Mary, our Lord's mother, belonged to the
fame Tribe as Jofeph, namely, the Tribe of Judah, is made fufRciently clear in that C ofpel.
In like manner we believe that flie was defcended from David alfo, fince Chrift is fo often
called the Son of David ; yet we are not told in that Gofpel that llie was defcended from
Solomon, or from any ifiue of his. Wherefore, fince Luke has written that Chrift w;is
defcended from Nathan, who was the fixth of David's fons, as is clear from Luke, chap, iii.,



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it is believed that he has hereby revealed to us that St. Mary was defcended from the fame
fon ; wherefore it can be conceived that Jofcph and Mary were defcended from two brothers,
fons of David. But becaufe Matthew fliows that Jofcph was defcended from Judah, Jacob's
fon, by the male line, the fame Matthew evidently excludes Mary and her fon from the
hereditary fucceffion of the kingdom of Ifrael and Judah during Jofeph's life, fince fo long as
males were living women could not fucceed to the inheritances of the children of Ifrael, as is
mod clearly declared in the faid thirty-fecond chapter of Numbers. Wherefore, fince Chrift:
was King of the Jews not by a temporal title of fucceflion, but only by right of Divine
appointment. His kingdom can afford no fupport to the Grandfon aforefaid in this fuit.



Chap. XII.

The title of the Kings Byother to tlie Kingdan in difpute.

"rar-J^T having been now moll clearly fliewn and proved that my niece, the King's
■ji^^ Daughter, cannot fucceed her father in the kingdom, and fo cannot tranfmit the
right of fucceflion to iier fon, his kingdom will by every right belong to me, the
King's Brother, jufl as we fhewed that an eftate entailed in the above-defcribed form on he rs
male devolves in a fimilar manner. And although the cofts and damages, which I have
fuftained by means of the wrong inflicfled in this fuit, would by force of law be granted me
together with the kingdom, yet, in confideration of the nearnefs of blood whereby we, the
parties to this difpute, are mutually allied, it is the kingdom alone, O moft upright of Judges,
tliat I entreat may be adjudged to me by your fentence, in order that by your decree the
trudr of JulHce may henceforth in like cafes become known to the world at large.



HERE FOLLOW THE REPLICATIONS OF THE COMPLAINANTS, VIZ
OF EACH OF TtlEM AGAINST THE ALLEGATIONS
OF THE OTHERS.



Chap. XIII. ,

Replication of t lie King's Daughter.

jUT the King's Daughter, breaking out of fobs into a voice mingled wiih iighs,
thus began with all that during a long filence fhe had ftored up, fiying : Have
compaifion, have compaffion, O mod pious of Judges, upon this unhappy woman,
harafled by calamities fo great. Two are fighting againft one woman, two men infult one




PART II



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On the Law of N ature.



.6s



who is only a woman, a fon is wronging his mother, and the uncle is burning to difinherit his
niece. But there is one thing which heaps up the load of my griet"; my fon who fliould he
the llafF of my old aae, has become unto me a hammer grinding and crufhing all the confola-
tions of my life. Tell me, I pray, who ever heard of fuch deeds. Behold in the lifetime ut
his parent the fon ftrives to get pofTeirion of her domain by hereditary right. But it is by
death that every inheritance defcends, and never by life. Like the phcenix, a bird of which
there exills but one, would be the right of my fon, if he fliall be able to obtain that which
he aims at; for the world hath not known a right like this. What law could have created
fuch a right .^ Certainly not the Law of Nature ; and yet to it alone is it left to deal with
our cafe. For that law, although it once made all things common, yet, after the tall of
man, appropriated to thofe who toiled all the things which they by rightful labour a;quired.
Wherefore an ellate acquired by the father's induftry, on his death, that law, by titl of fuc-
ceilion, aHigns to the fon, juil: as if he had fhared his father's toil. Thus Ifaac and Jacob



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