John Fortescue.

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

. (page 36 of 87)
Online LibraryJohn FortescueThe works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) → online text (page 36 of 87)
Font size
QR-code for this ebook

and his fons had poffeOion of the land which Abraham bought for a burial ground. So alio
Cain's fons, although accurfed, rightly occupied the city which he built ; nor in the lifetime
of Abraham or of wicked Cain was it allowed their fons to take away anything which they,
i.e. Y^braham and Cain, had acquired by their jull; toil ; nor indeed by any other title than by
gift of the rightful owner could a poffeiTion of this kind be transferred to another man according
to the law of nature. By what right then my father's kingdom, which is mine by hereditary
title, can be transferred to my fon during mv lifetime, when I have not given it to him, and
the law does not allow fucceffion during the parent's life — to give a rational explanation ot
this furpafTes furely the wit of man. Nor can my fon in this difpute derive any help
t'rom that facS: upon which he relied fo anxioufly, as the bell prop of his title, namely, that
Chrill;, as he would have it, in the lifetime of his mother was King of the Jews by hereditary
right ; for his great-uncle has with irrefutable arguments condemned this conclufion as an
impious error. Wherefore there is now left him no fupport on which in defence of his error
he can lean. Impofe therefore (ilence upon him, O moil (kilf'ul Judge, in this lawluit, fmce
only at'ter my death can the riglu to the kingdom accrue to him. And thus when he is
lilent, thou wilt be able in more quietr.efs to put an end to this difpute, and I fhall be able
to reply in greater peace to the objedions of my imcle.

(ii the fir \
plaoi- (ho
[jiovcs that
h<r Ion
(uccccd'. XIV.

The King's Daw^hter here Jets in order the procejs by vohich Jhe intends to advance. -. '■

-'NEVERTHELESS, O Judge, left thou fhouldeft be moved by the arguments
which my Ion has propounded, I will endeavour to deprive of their ftrength, under
one and the lame form of reply, not only his arguments, but alio all thofe which
my uncle urged. xVlthough fet forth with many diflertations, itill two realons only are laid

I. .M M.

M ^ 'V^,> \'>


■^, L •<■ T, ■ ;


1. .'.jc;.']


,266 On the Law of Nature. [part h.

before you, why women iliould not fucceed their parents in the cafe of kingdoms as in the
cafe of other inheritances ; namely, becaufe nature has made them interior to nien both in
courage and in reafoning powers, and fo fufFers them not to conijuer men in battle,
nor to give judgment in courts ot law ; and yet thefe two things alone conftitute the office of
king; wlierefore, it is faid, to be without the ]iower of performing thefe things is to be
without the power of diicharging the office ot king. When therefore thefe grounds are
overthrown by correal reafoning, the arguments of both the difputants which depend there-
upon are alfo refuted. Wherefore I will iirfl: endeavour to difprove thefe reafons, and then I
will demonrtrate, as I fliall be able, that the female fex, like the male, is capable ot the
regal office.

Chap. XV.

She nozv refutes the reafons tvhich ■ivuuUl prevent a Female Rei^^n.

F from thefe two reafons it followed that Women ffiould not reign with fupreme
authority in a llate, it woidd from the fame realons alio follow that infants,
decrepit old men, and men wafting under fevere difeale ffiould be rejected from
the fummit of dominion, fince they too have not the power of waging war and giving judici d
decifions, like men of unbroken health and in the prime of lite ; and hence it would follow
that, fince kings do not always leave behind them wife and llrong heirs, kingdoms would not
beheld by title of fucceffion. Wherefore, fince that refult would be unjui:, neither caii it be
concluded from the reafons aforefaid that women ought to be rejefled from the reg d
dignity, fince this and the former conclufions fall under the fame principle of equity.
The natural dominion which exil1:ed in the time ot man's innocence and which, as St.,
Thomas fays, confiited in the office of advifing and direiffing, would always have been
exercifed by wife men ; (this is the dominion of which the Philofopher fpeaks in the Politics]
when he fays that the man who is vigoi'ous in underftandmg and aiflivity is by nature lord);
but the pofitive and particular dominion, which, after fin entered into the world, was laid by niani
upon his fellows, is wielded fometimes by wife men, fometmies by brave men, at other ""imes
by men who are neither one nor the other, nay, often by dull and fpiritiefs men ; for it is
pofiefied fometimes by title of fucceffion, fometimes by that of eleftion, and not always by
defert of virtue. Wherefore, although in any office it is good to a6l fupremely '.'ell, yet
always fo to aS: is neither allowed by human infirmity, nor required for the due difcharge ot
the office. For in every fervice it fuffices for him who ferves to aft well, and a woman is
capable of fo acting even in tlie regal flate and dignity. For the duty of royalty does noc
require the king to fight battles, or give judicial fentences, in perlon ; it is enough for liim
to perform fuch afts by fufficient deputies. Thus David waged many of his wars by means

■.-■■: A

! ,U - ■■■i] ■■•.■■• r:n

:X ^■/^l -, J,

5 '■; OJ ;Cri

^o :■} V ,•-, I


] O71 the Law of Nature. 267

of Joab. Huis the Emperor Juftinian, intent upon framing his laws, fubdued many king-
doms by means of Belifarius. Kings likewife frequently decide the caufes of tlieir fubjerts
better by means of judges (killed in their laws than by themfelves in perfon. Which
of the Judges ever judged the people of Ifrael better than the wife woman Deborah ?
Wlio ever waged the wars of her people more bravely than Tomyris Oiieen ot the
Maflagetse, who flew Cyrus King of the Perfians and Monarch of all Afia ? Who hath
ever fubjugated nations with the fword more ftrenuoufly than Semiramis did long ago, the
confort of Ninus Prince of the whole Eafl:, who with brandifhed blade made not Afia only,
but Ethiopia and a great part of India tremble? Doth not the kingdom of the Amazons
alfo, which is always ruled by women, defend itfelf floutly againll all the lords of
the world ? Affuredly this parchment would not fuffice to contain the names, were they
recorded, of the noble women who have ruled nations with vigour and great juftiC' . Why
then do my fon and imcle try to caft me off from an office in which lo many women have f )
eminently diftinguifhed themfelves ? As I have faid, did the law which permitted fo many
women to reign ever exclude nie therefrom ? Judge, therefore, and decide my cafe, O
mofl righteous of Judges, and confidcr how nuny Dukes, how many Marquifes, and how
many Earls, who like Kings have fupreme power over their people and judge them and fight
their battles, are all the world over fucceeded by daughters who inherit the dignities and
dominions of their parents ! And yet between the titles of thefe women and mine no
difference is to be found. And what if, as my fon fays, we do not read that the kingdom
of Ifrael or Judah defcended to women ? Neither truly do we read that any of the
kings reigning there died without male heirs, leaving only daughters. The judgment, there-
fore, which thou, O moll learned of Judges, wilt pronounce in this difpute is clear.
Pronounce it therefore without delay, not baffied by any luch crafty perfuafions as theirs.

I'i nS

' ;.,.'. I 10

:;■: ■;'.) if): •!.<
• J ';■' ;j.ijfi
-;,'■.!: sfll to

■ ■/ ,; MM';-.)

i6S 0)1 the Law of Natu7~e. [part ii.


Chap. XVI.

He firjl JJiows how he lays claim to Ids Grandfather's kingdom as tlie heir of his
Grandfather, and not as the heir of his Aht'ier.

^^B^IIE Son, weighing thefc things in the depths of his mind, thus, with niodert
t^yi ^^^ '^"'' iiddrefles the Jialge : "Did I not, O JulT:ice, ohferve th ■ firmneis of
W ^^^i^ s thy conllancy, my mother's arguments might, perhaps, alarm me. But in this
is my fpirit i-trengthened, that it is not the jinglmg found tit words, but the weightinefs
ot opinions that is pleafing to thy mind. l-'or I do not, as my motlier imagines, auii
likewife her uncle, demand my grandfather's kingdom in right of my mother. What fan -
n)an would claim a right through a [lerfon whom he himfelf judges to be void of all ritht '
For that famous Rule of Law is not unknown to me which proclaims that no man can trai sfe^
to another a greater right than is adjudged to belong to himfelf. Therefore, not in right o'
my mother, which is naught, do I demand my grandfather's kingdom, but by title of
fuccellion, which has through her lapfed to me from my grandfather, do I, as his heir
claim the kingdom whereof ]\e died invelted, and which ought thus to have defcended to mc
through her, even though fhe herftlf had departed this life in the lifetime of my grandfathei.
I^'or if I had been his grandfon, not by a daughter, but by a ion who had dieu in
my grandfather's lifetime, I fhould certainly have lucceeded him in the kingdom by here-
ditary right through my father, who (according to the luppofition) had no right whatever'in
the kingdom, nor ever had the power of giving it away, or transferring it to another. Why,
then, can I not in like manner fucceed the fame grandfather through my mother, although
file herfelf poflefs no right in Iiis kingdom, nor ever had the power of giving it away pr
granting it.-' For (he is only the medium and vehicle whereby my grandfather's kingdom is
transferred to me by the law of nature, julf as a rope or cord may be the vehicle and
medium whereby a beam guided from above can be put in its place in a building beneath,
though the rope or cord be no part of the materials of the building; fo alfo glue although
it is not wood, fal1:ens pieces of wood together. And the nearnefs of blood which my mother
contrads from her father and transfers to her fon is, as it were, the glue by which he grand-
father's kingdom is joined to the grandibn. In this way, too, found is the medium
by which a word is tranfmitted to the hearing, and a contraA is the medium by which the
proprietorfliip of any objecfl is transferred from owner to inuxhaler. Wherefore let not
the arguments, which my mother and her uncle have f'ramed, any longer (land in the way


.] 0)1 the Law of Nature. 269

of my title, fince neither in my mother's lifetime nor after her death do I aflert that it is in
right of her that my grandfather's kingdom belongs to me. Thus alfo does my title to the
kingdom in difpute rtand forth clear to thee, O bell: of Judges ; while at he fame time,
however, I can plainly prove that my mother cannot fucceed to it, which I fhall attempt
to do as follows.

Chap. XVII.

The Son intends to confirm only his ozvn ajfertions.

TOlHE two arguments which my mother has juft now fo cleverly refuted were not
both propounded by me. This only do I acknowledge to have faid, that a woman
IjJ^L^i^ cannot, according to the law of nature, fucceed her parents in a kingdon which
acknowledges no fuperior, as fhe can in the cafe of other property ; which alTcrtion if J be
able to prove conclufively, my grandfather's kingdom is mine by right, and my mother and
uncle will give way in this difpute, provided neither of them be able to difprove that I can
fucceed my laid grandfather in the kingdom even in my mother's lifetime.

Chap. XVIII.

He here fliows how Woman was created fo as always to be Jubjelyl to Man.

M/^~^T is written in the firll: chapter of Genefis tliat God, when about to make man,
j!f.P^ faid, " Let Us make man in Our image, after Our likeuefs, and let him prelide

over (^prieftt) the fifli of the fea, and over the fowl of the air, and over the bealls
of the earth, and over the whole creation, and over every creeping thing that creepeth upon
the earth ;" and in chap. 2 : " So the Lord God therefore formed man of the duft of the
ground, and breathed uito his noftrils the breath of life, and man became a living Ibul ;" by
which fayings we are perfectly inftrufted that at the fime inftant in which the hrll man was
made he was alfo made the image of God and prefident [pr.cfidens) of the world, the woman
not having yet been formed ; all which things are explained more clearly in the former
Treatife. Then, after woman was formed, the Lord fubjeded the earth to both the man
and the woman, and gave to them, in common, dominion [dominium) over all its living
creatures, faying, " Be fruitful and multiply, and replenifli the earth and fubdue it, aiu have
dominion over [dominamini) the fifli of the fea and over the fowl of the air, and over every
living thing that moveth upon the earth" — not taking away from the man by thefe vords
the prelacy {prelatiam) with which Lie firll: diflinguiOied him. For though both the man
and the woman by theie words received doiuinion in common over all the living things of the
earth, ftiU it was fitting and good that only one of them fliould have the prelacy over the

I, ■ aJ:.

270 On the Law of Nature. [part i.

world ; becaufe, as tlie Philofopher fays in the firll hook of his PoHtics, man, who is a politii:al
and focial animal, is not able to live well in lociety without one to prelide and rule. Thus,
too, though the citizens of every ftate live in focial union, yet one of them always has the
chief power, and him all the other citizens obey. 'I'his prefidence of the firil man, St.
Thomas, in Prima Secund;u, (^leftion 96, Article 4th, and likewife in the third book of th :
De Regimine I'rincipum, calls natural dominion, which was cxcrcifed over the woman, and
con/ifted in advifing and direifting her. Hence it follows that the man had at that time a
liouble dominion — one in common with the woman over all the living things of the earth,
the other by himfelf alone, namely, the fupreme dominion, which we here call the prelacy
over woman and all thofe living things; jull: as we often fee that Itates have dominions in
common, but the ruler of the ftate prefides not only over tliofe dominions but alfo over : 11
the citizens of that ftate. But the IVIafter of the Sentences, upon the ill )'',piftle of Paid 'lO
the Corinthians, chap, i i, fays, " No one doubts that man was made in the image of God,
not in relpeft of his body or any part ot- his foul indifferently, but in refpcLil: of his ra ional
mind, wherein there can be an ap[5rehen(lon of God, w hich lies in the fuperior part o*^ the
reafon (and nothing is an image of God except that which inheres in unchangeable tr ith) :
and this mind, on account of its union witli the flefti, whereby itfelf and the flelh an one
man, is called man made atter the image of Ciod." And from thefe words we u-e able
rightly to underftand that the firft man, who was a rational mind, whom the Lore placed
over {■pr.efecit) the whole creation, was alfo fet over {^frelatus) his own bodv, and therefore
over us too, who were at that time feminally C(3ntained in him. Pie was alfo by hi^ crigin
fet over the woman, who was then containeii in him potentially, a fad; which we feel our( .-Ives
in that we then finned in him and through him, and which the woman felt alfo, for lie fays
to the ferpent, " Of the fruit of the tree which is in the midft of the garden God hath com-
manded us not to eat." For at the time when that command was given the woman hjid not
been formed ; yet in thefe words flie acknowledged that at the time of that command fhe
was in Adam, to whom alone that command had been made known. Wherefore at that
time fhe was herfelf, like all the members of .Adam's body, though in a different way, fubjed:
to Adam's authority. For though the Lord created all things out of nothing, yet nothing
was not made fomething, but that which had before exifted in creative and obediential jiower
was by the Divine creation produced from potential eflcnce into aftual exiftence. Of this
kind ot produftion the Philofopher fpeaks in the iith Book of the Metaphvfics, where he
treats of generation which takes place out of an ens in potoitid. Now the woman, who by
the faid potential entity was hidden in the rib of Adam, was formed into the fubftance of
woman out of that rib which at the time exifted by aftual entity as the bone and ftefti of
Adam. Wherefore that rib was not reduced to nothing, but ftill retained the aftual eflence,
which it had before, though in a different way ; jufl as Adam himfelf, when made man, did
not lofe the fubftance of the earth of which he was formed ; wherefore the Lord fays of him,

PART II.] 0>i the haw of Nature. 271

after he had finned, " Duft thou art, and to duft fhalt thou return;" and Adam acknow-
ledged this himfelf, in that lie faid of Eve, as foon as ever Ihe was made, " This is now bone
of my bones and flefii of my flefh," fliowing by thefe words that, inafmuch as ihe, after her
creation, was fliil no other than the fame flefli and bone which had before exiited in him,
though in a different form, ihe remained, even after her removal from Adam's body, fubiert,
though in a different way, to the fame bond of fubjedion to which file was humbled when
fhe was yet contained in his body ; wherefore alfo he fays, " She fhall be called woman "
[virago). This name the woman received from him paffively as his fubjetl, jull as the other
living things of the world alfo received their names from him as from their head {prxlato) ;
for in old times none but fuperiors and parents are faid to have impofed names upon men.
Whence God alone impofed a name upon the firft man, who had no fuperior, and called him
Adam (Genefis, 5th chap). And this name, •ivomaii, furnifhes no fmall matter of humilia-
tion to the woman, as will be clearly evident to any one who carefully confiders it. Neither
can the faft that fhe was made for the help of man call her to the performance of any
great fervice ; for he who is appointed as a help to another man Is ordained to perform
what is good and advantageous for the latter, which is proper to the duty of a fervant ;
fo that a wife man will confider fuch help to differ very little from fervitude. And if
woman has been made for the fake of man, fince, as the logicians fay, of two things the
one for the fake of which the other exii1:s is the greater, the man was fet over the woman
on account of being greater than her, and therefore flie was placed beneath him in rank,
and owed him obedience as to one who was fet over her, according to the command of the
Apoftle, who faid, "Obey thofe who are fet over you." And indeed if it be confidered for
what kind of a help for man woman was created, it will contribute not a little to leffen
this difpute. For though flie was formed to help man by way of confolation, and by
avoiding of lonelinefs, as Is fhown by the words of the Creator, \vho faid, " It is not good
for man to be alone," that flie was alfo formed to help him in the procreation of the human
race, the care of which belonged to the firfl man as to God's image, has been maintained in
the writings of Hugh de St. Vicfor, m Book 6, J^e Sacramentis, and alfo by manv other
Catholic Uocftors. For man is not the Image of God on this account, that he bears in his
foul that moft fpecial Image of God which confifts in thofe three powers, memory or mind,
underftanding, and will, in which, as In a mirror, he can behold the image of the Mofl High
Trinity; for woman, like man, bears thefe powers in her foul, and an angel alio bear;; them,
neither of whom is the image of God, nor made after his Image. Vov concerning woman it
is written In the Canon (Caufa xxxili., Oua:fl. 5, Cap. ILtc iDuigo): "So woman v as not
made after the image of God ;" and a little further on, " The woman veils her head, oecaufe
fhe is not the image of God." Likewife, concerning both the woman and angel, \'incentius,
in the fecond book of his Speculum Hlflorlale, writes thus: — "The woman, though
endowed with reaibn like the man, is neverthelefs faid to be the glory of man, but not


■•■ ■■ y\j

.-.■.; i:il

, - . si '.'.'• )

' .;-!■..!


1,1 ...rl)

I liifi.i

■•1 r

272 Oji the haw of Nature. [part ii.

the image of God, in like manner as an angel." But that the man, I will not fay was made
after the image of God, but is the image of God, the Apoltle, in his ifl: h'-pillle to tne
Corinthians, chap, ii, bears uitnefs, faying, "The man indeed ought not to cover his hea.l,
feeing that he is the image and glory of God ;" and we nowhere read that this was written
of any other creature. But if \vc conlider why man and not woman is the unage of God, it
will be moll: manifeftly evident that the woman always was and ought to be fubje6l to th.e
man ; alfo that fhe cannot have fupreme dominion over the man, and therefore cannot reign
in the kingdom concerning vvliich oin- prel'ent queftion arifes.

Chap. XIX.

He here Jlioivs what is »iea)it by McUi's being made after the Image of God.

■^^p^ HE fiid Hugh, in the faid book, writes thus : " Now God created one firft man, in
e^A "^k order that there mieht be one beelnnino- of the human race, fo that herein the
^^;^^%^ Devil's pride might be put to contufion, and the humility ot human na ure
might be glorified by refembl.mce to the Divine image." And a little further on he
adds : " So that herein alfo the image of God might appear in man, that, as God is the
beginning to all the things ot His creation, fo man nfight be the beginning of generador to
all men, and all men, while recognizing that they proceed trom one and are one, might love
one another as being one. But afterwards woman was made out of man himlelf in aid of
generation ; (ince, if ftie were made from any other fource, there afTuredly would not be c ne
beginning of all men." Thefe are his words. And in the Canon atorefiid it is thus wr tteii :
" This image of God was made in man, that there might be made one man, from whom all
the reft fliould fpring, holdmg God's empire as His deputy, becaufe he has the image of. the
one God." hrom thefe writings we apprehend that there are two caufes why man, and not
woman, is the image of God : one, becaufe, as all creatures are created by one God, to tijom
one man fhould proceed the generation of all men. I'he fecond, becaufe, as God rules all
the creatures which He has made, fo man too (hould rule all men generated by him, aiul the
world alfo as God's deputy. And thefe things cannot be faid of woman, fince from no
woman have all men been born, b'or a woman did not give birth to Adam and Eve. Nor
did tlie Lord give to any woman the power of ruling the world, fince fhe is not the image
of God. Now a woman is able to bring forth and to conceive, but by nc means to
procreate, b'or procreate is a word compounded of -pro and creo^ as if that p jwer were
given to man in the place of the power of creation. Wherefore, in this refpeft he bears the
image of God, and though woman, in the conception of man, juil: as the earth in the creation
of the firft man, furnilhes the material in which and of which man generates the offspring
which file conceives, yet fhe does not herfelf procreate that oftspring, even as the earth did

PART 11.] On the Law of Nature. 273

not create the firft man ; wherefore, in this refpecfl, every man, and no woman, bears the
image of God. For, as the Philufopher fays, man's feed is to woman's feed, in generation,
as the Iiand of the potter to tlie earthen vefTel, as the hand of the carpenter to his wooden
materials ; which, together with fome other of the aforefaid matters, he clearly demonftrates
in his De Animalibus, and efpecially in Book 15 of the fame. Another equally good fimili-
tude tor thefe things is furniflied by the mould of the cheefemaker, who transh^rms milk
into cheefe. The Philofopher alfo fiys in the 7th Book of the Metaphyfics, that man's feed
aifls with refpecft to generation as art acfts with refped: to things artificial. And fmce to
govern the world and to procreate men is to be the image of GoJ, woman, who is not the
image of God, nor made after His likenefs, cannot rule the world, even as flie cannot pro-
create men, fince thefe are the works of God's image alone, and confequently flie cannot
poflefs the kingdom now in queftion, which knows no fuperior. Yet, in order tl at thefe
things may fland forth more clearly, I will bring them together fucciniftly into : fort of
fummary, fo that we may fee more plainly what follows from the foregoing.

Chai'. XX.

Epilogue Jumming up the things which have been jaid in the lafi t-ivo Chapters.
I'j^N the firrt place, we fliowed how, before the creation of the human race, it was

Online LibraryJohn FortescueThe works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) → online text (page 36 of 87)