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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two being one flefti, the greater care thus tell upon Adam, left ftie ftiould die of hunger;
wherefore fhe too, who was made for his help, and fubjeiffed to his authority, could not ,
have endured that he alone fliould toil fur their common fupport ; for thefe reafons
we are not allowed to fuppofe that Eve was free and excluded from the penalty laid upon j
Adam. For the Lord fpake to the whole human race all tlie tilings which He fpake to
Adam ; fo, too, the things which He had fpoken to Eve, He had fpoken not to the indivi- |
dual only, but to the female fpecies and fex, as that which He faid to the ferpent was faid
not only to his feed, but to all his kind. Ikit \\\ thele thmgs tlie fpeech was Divine and not
human; for the Lord doth not always fpeak in our manner; tor He called Adam and Eve
by the one name ot Adam (Gen. chap, v.), and thus in this lentence addrefted inclufi/ely by
the name of Adam the whole human race of both fexes; fo, too, when he faid to Adam,
" Duft thou art, and into dull; fhalt thou return," He Involved Eve alfo in that conuption.
Nor is this wonderful, fince Noah, too, when in human and, at the fame time, prophetical
words curfing Canaan, curfed alib his father, without exprefsly naming him, who had finned
more than his fon. Wherefore no woman, as alio no man, eats her bread without fweat; tor
I. .0 o.

■.■'. !'•'■:■. Mt
X ';:d; II

A: {,;;;>


2^2 Oti the Law of Nat 117^ e. [part ii.

bv the name of bread everything necelThry for human fupport is defignated. And inafmuch as
Iftig'nal •' ^''^'^'' ''''' f'''''''^' ""■'''''' '' ■"^''^"^'•■^■"^ - ^"d common to both fexcs, the uoman fufbuns other
fin ac4s more %'^^^ ^nd grievous penalties by this decree, the form of the Divine judgment evidently fhows
that Hie finned vvorfe than man. For fince every judge meafures the punifhmcnt of the
dehnquent according to the meafure of the fault, as the woman in this Divine inqueft ,s
punifbed with a heavier penalty than the man, it cannot be doubted that her crime was
greater than his ; and the form of the fentence and the fitnefs of the penalties evidently
declare that the excefs of crime on the woman's part did not confift in this alone, that Aie not
only finned like the man but alfo urged him to fin, but confifted rather in this, that Hie,
neglecfting the obedience which fhe owed to the man, prefiimed to teach him. And though
the judgments of God are an abyfs infcrutable by us, ftill as often as the form ot Mis judg-
ments reveal to us their caufe, it would be the fin of the fiuggard not to digeft \^^ our mirui
and fearch out that caufe ; for it is a delight to the minds of the pious to ponder the facrcd
myfteries of Divine juftice. And what could have been a more fitting punifliment for tne
woman, who for her own pleafure incited the man to death, than that (he fhould bring forth
with pain the man whom (he longs to bring forth to life ? And what is better fitted to refira.n
the arrogance of a rebellious fubjecfl, than to fubjeft the rebel with a firmer bond to tiie
authority which he hath defpifed .? For it would not have become fo great a Judge to deprive
of the honour of dominion, on account of his folly, the man who, by the woman's infult,
fell ; but inafmuch as the inferior deferted her original obedience, it was agreeable to reafon
to increafe the weight of the fuperior's power over the contumacious one more feverely than
before, even if that fuperior had been guilty of the greater crime. Thefe things, therefor.-,
being duly weighed, the form of the Divine fentence manifeftly declares that the punifiimeni
of the woman in childbirth was caufed by her having impelled our firft parent to fin, and that
it was for her difobedience that fhe came to be fubjected to the man as a mafier.'to whonii
file had before fubmitted only as a companion. What then, if thefe things be rightly conn
fidered, can fhow more clearly than doth this fentence of the Creator which fo condemned
the woman for contempt of natural fubje6lion, that our previous arguments are free from
every veil of error, and that the woman, before her fin, was by right of nature fubjcd to the
man ?


How the Divine Law approves the fentence of the Law of Nature.

S not then the Divine law opportunely brought into this difpute in addition to the

Law of Nature ? The latter left the woman to fubmit herfelf to the man by her

own will ; but as fiie refufed to do this, the former, curbing her will, compelled

her to be fubjcd: to him by the will of another. The latter decreed that the woman fiiould


RT II.] On the Law of Nature. 28

freely obey the man ; Init as fhe abiifed tliat liberty, the former, diminilliing her freedom,
fubJLigated her to his authority. The latter taught that the woman Ihould be advifed and
directed by tlie man ; but as the woman, making light of this, prefunied to teach the man, the
former appointed him tronr henceforth to be a llrieler fchoohnaltcr than he liad been before.
'I'he latter often hides itfelf under the clouds of human reafon, but the former, difclofmg the
truth of the other law, cleanfes it from every intention of error, is not, then, the Divine
law fittingly and ufefully adduced in aid of our difpute, fince all the things which the king's
grandlon, and likewiie I myfelf, have tried to enforce by the rules of the law of nature, the
Divine law, under the form and with the efFe6l of pofitive decree, approves and confiinis ;
while it alfo eliminates every fuipicion of error from the procefs of our difcuHion, and
purfues and fmites with its cenfure all opponents ; and thus it is clear that all the things which
we have aflerted the law of nattire to enad are now commanded to be obferved for ever under
a ftronger bond by the law Divine, b'or we have faid that human law has enaded that the
woman be fubjeft to the man. But in order that the woman may never throw ofT that yoke,
Divme law has conftituted the man her mailer; fo that if ilie reful'e to do willingly what
nature hath decreed, Ihe may be compelled to do it by the power which the Divine law has
conferred. Man has been made lord of the woman, that fhe may not be afliamed to venerate
him, and he has been endowed with power, that, if ihe rebel, he may be able to compel lur
to obey. And thus hath the Lord hired the man with perpetual wages, the iHpend, namely,
of power and the honour of lordlhip, that he may prevent the woman from further tranf-
grefling the precepts of nature's law. And what more refults from this Divine judgment in
aid of this difpute, I will endeavour to examine ftill more deeply.

Chap. XXVIII. ,

The Woman is excluded from the Throne more Jlrongly by Divine than by Human Law. |

''HATEVER the Law of Nature ordains, if the prince hath abb by his edic'l com-
manded tlie fame thing, that edidt forthwitli binds his lubjeds more llringenth'
^S^^^^fc^ than the law of nature had done before ; fo that, if any one from that time
forward fhall tranfgrcfs fuch cdicil, he Ihall not only be puniilied according to the fentence ot
the law of nature, but ihall pay a greater penalty for contempt of the prince's command.
Wherefore, although by the law of nature it be not allowed to kill, ftill, after that ^he Lord
forbade murder by edid written on the Tables of ftone, to kill was a much greater crime
than it had been before, and lubjeded the oilender to a heavier punifhment. I'hus Cain,
who had committed fratricide at a time when the whole world was ruled under the law of
nature, is not ordered to be flain, but is permitted to go forth a wanderer and a fugitive;
but after that murder had been forbidden in Mount Sinai, every man guilty thereof was

284 0?i the Law of Nature. [


ordered to he put to death, as we are more exprefsly informed in Deuteronomy. Two
chains bind alfo more ftrongly than one ; yea and a triple cord, as the Wife Man lays, is hard
to break; wherefore, when the authority of the prince, by definite fentence, fliali have
Judged any one to be puniflied for his crime, the feverity of that fentence binds an otTender
more ftrongly afterwards than the edift of the prince or the law of nature had done before.
Whence, though the Divine command had judged him who eat of the forbidden tree to be in
danger of eternal death, Chrift's Paliion refcued the eleft therefrom ; but neither that paflion
nor any other fatisfadion has to this hour mitigated the punifhment which, for the fame
fault, the Lord inflicted on man by tlis definite fentence. What woman with child ever was
delivered without pain.? Or what man ever eat his bread without labour.^ Nor has the feed
of- the ferpent ever yet found peace v.ith the feed of the woman. Therefore, if what the law
of nature has laid down concerning the female iex the Divine decree fhall alfo 1 ave ordained,
not only would the fentence of the law of nature be thereby fenced in the more firmly,
hut the woman too, when traufgrefTuig it, would be fmitten with heavier punifhmet!'.
Wherefore, fince this fame thing which the law of nature had prohibited hath been forbidden
by the final fentence of the L.ord under a heavier penalty, it remains folid and firm ; io th; t
it can by no means be weakened, to the injury of its principal part. Have we not then wo- 1
difcovered in this inveftigation what we fufpcifted we fhould difcover — namely, that th:
woman is repelled from the kingdom in difpute under hazard of a greater fin by the Di.-in:
law than by the human ? But fhe is alfo put away from it much more ftrongly and firmly
by the above-mentioned Divine judgment than before. For fince to defpife the command cf
the prince, ordering the fentence of the law of nature to be obferved, is a matter of greater
guilt than to negleft the finiplc fentence of nature, we difcern it to be far more culpable t>
defpife the judicial fentence of the prince, definitely pronounced, fince fuch fentence is proved
to bind more ftrongly than his fimple edicfl. And inafmuch as the Lord has judicially decr^'L-d
that the woman Hiould always be under the power ot the man (which is, not to reign in fi ch
a kingdom), the Divine law has made it wickednefs and fin to ambition the faid kinodomjas
the law of nature had made it already, and repels the woman more ftrongly and more firmly
than before from entering thereupon. I do not, then, while alleging the Divine law in t'rs
difpute, appear to retreat from the authority of the Law of Nature, but to follow it more
clolely than before, while I confirm its fentence by authority of a higher law. Wherefore, O
moft righteous of Judges, prohibit the King's Daughter from ai.y more demanding Her
father's kingdom, fince thou knoweft its entrance to be fhut againfl her with {o many bolts
and bars, that henceforth all ingrefs thereunto is for her im})ofhble. :

PART II.] On the haw of Nature. 2S5

Chap. XXIX.

By the Law of Nature alone can the propofed qiiejlion l>e perfectly folved.
;^)^ NE thing ftill remains which needs mull be explained, Icil we appear to expufe

matter of gainfaying to the jealous opponents of this treatife. Jn the former Part of
^l the Treatife we faid that our queflion was one to be folved by the Law of N.uurc
alone ; and now I have unfolded the Divine judgment, and have afTerted it to be capable uf
dealing with the queftion more certainly and more powerfully than the law of nature coidd
do ; fo that it may be aflced why we fo carefully explored the decree of the law of nature
for its folution, and confumed fo much time and labour in the inveftigation of nature and
the powers of its law, when I have now difcovered another law more excellent ai.d more
efficacious for the folution of the fmie queftion ? This is truly a very nice point, and de-
legable to the minds of the envious ; yet has it been fufficiently difpofed of in the former
Treatife, and its darknefs mofi: luminoufly cleared up, when we therein declared how that,
though the Divine law be fufficient to folve all difficulties, yet human laws are neceflary to
put a ftop to the litigation of men. As the brightnefs of the moon is neccffary to the night,
which brightnefs fhe doth not pour forth but by virtue of the fun's rays, and as the fun,
though fufficient to illuminate the whole world, yet diftributes not his light to us, except
through the medium of the moon, fo too the Divine law, which is the fun of truth, doth
not, proportionally in the propofed cafe, illuminate the darknefs of our ignorance, except
through the medium and teaching of the law of nature. And although, in preferring in our
cafe the fentence of the law of nature to the authority of all laws, we lliall perhaps b^: fiid by
the fimple to have preferred it to the fentence of the Divine law, yet by the judicious It cannot be
thought that we have fo done, fince no comparifon can be made between a temporal law and an
eternal law; for by its infinity an eternal law outfoars all meafure of human ienfe. Where
fore, it does not feem to have been included by that Canon, which fiys, in general terms,
that " natural law holds the firft place among all fyilems of law, in time and dignity," in
which words the Canon itfelf does not exprefsly exclude the Divine law, and yet In its general
meaning it does not Involve that law. Nor is the law of nature merely human, but it \% jm
divDiuni alfo, as in our other aforefaid Treatife is more fully taught (fo alfo it is called
abfolutely by Ifidore in the ift book of his Etymologies, and the fame is laid down in the
Canon, Dif. Onuies); and although it rules earthly things, and fo is often called human law, it
doth not therefore ceafe to be Divine law ; even as the moon, though miniftering light to ♦'he
night as the fun's inftrument, ceafes not to be a heavenly body. In like manner, the judg-
ment which I now bring forward, though it be perpetual, and deferve to be called a Divine
law, is not an eternal law, becaufe it took its beginning ti-om time. In like manner, alio, it

286 0?i the Law of Nature. [part ii.

was after that the law of nature had perfedly revealed the truth of our queftion that the
Divine law itfelf was firfl: promulgated; and thus, it cannot be faid abfokitely that by that
law, though it be called Divine, our quertion has been folved, or cou.d have been folved,
fince that which has been once ended cannot be ended, jult as the man once killed cannot
be killed. Wherefore, the fentence pafTed upon our firft parents does not precifely finifli
our caufe; but it proves mofl: furely that our caufe had been then already finillied by decifion
of the law of nature, which it confirmed, and ftill confirms. Neverthelefs, left thefe things
fhould feem to be fliadowed in any obfcurity, I will endeavour, fomehow, to difcover
them yet more openly. We find then that it is not becaufe by the aforefaid fentence of God the
woman was commanded to be fubjeft to the man, that ihe was originally fubjeifted to him ;
but becaule, before that lentence was pafled, fhe was enjoined by decree of the law of nature
to obey him. And this decree fhe tranfgrefled by preiuming to direcft the man. Thereupon
there proceeded from the Divine counfel, at the prompting of juftice, that by which
file paid the penalty ot her crime, and knew hcrfelf more certainly than before to be lub-
je61ed to the man. So, too, it was not by force of this fentence that the doubts and diflRcultieL
of our queftion were originally and entirely folved ; but it was becaufe they were originall)
cleared up by the judgment of the law of nature, that that fentence was afterwards pronoun :ed
by the Lord, by which the judgment of the law ot nature is endowed with greater ftren ^th
than It had before. And hence we difcern that our queftion is folved by the decree of tht
law of nature alone, and not by the ruling of the atorefiid fentence. For not that which
confirms, but that which is confirmed, is confidered to be the efficient caufe. For thus the
things which are forbidden by the moral commandments are not on that account fins, as
though unlefs fo forbidden they would not have been fins; but becaufe they were before
found to be fins by the law of nature they were alfo forbidden by Divine edift, and thereby
became much more grievous fins than they were before, and the guilt of thofe who comnut
them is aggravated, and rendered fo much the greater, as they are committed, not on'y
againft the commands of God, but alfo againft the didlates of the Law of Nature. And tin
this account thofe fins which were committed only againft the ceremonial precepts, efpecially
in refpecft of the fame objeft, were lefs blameworthy than thofe which were committqd
againft the moral.


.] Oh the Law of Nature. 287

Chap. XXX. *

The Divitie Sentence Juffers not a JVoman to reign Jiiprenie de jure: but the Law of
Nature Juffers her not fo (o reign either de jure or de fado.

^OREOVEll the judgment aforefaid, pa/Ted upon our firft parents, and the law of
nature are not of the fame efficacy and force for folving our queftion, nor in
deciding it do they produce the fame or a like efFeft. For the law of nature,
which we have called a ray of Divine Providence, when it divided the human race at its verv
root into two fexes, naturally rejefted woman trom fupreme rule ; and thereby the woman is
rendered incapable of poffeirmg the country now at ftake ; fo that if fhe invade, occ upv,' or
ufurp it de fatJo, fhe is not on that account made its miftrefs or queen, no more th m he is
made a hufband who takes to himfelf another man's wife; for that which nature altogether
feparates cannot be united by art, as is taught by the example given above of wood and
ftone which admit of no junftion by glue or mortar. Wherefore, although women may be
concerned, yea and run riot in fupreme kingdoms, yet the law of nature prohibits their
inveftiture with fuch a royalty. This kind of aftioii is fpoken of by Boethius, in the fourth
book of- his Coniolation, following the opinion of Plato, where he fays, " Plato's opinion is
evidently true, when he fays that the wife alone are able to do that which they defire, but
that the wicked, though they aft as they pleafe, are unable to accomplifh what they defire."
For, as is evident to one wlio profoundly confiders the thing, the law of nature indicated at
the very beginning of man's career, that fuch a union as the king's daughter defires to con-
trail with the kingdom in queflion is not according to the principle of Being {^de ratione entis),
and therefore not in the nature of things, fince it is contrary to the nature of the formative
a(5t {plafmationis) ; and therefore fuch a union cannot any more fubiill de fa^to than it can de
jure. But far different and very diverfe from this ef^ed of the law of nature is the eiTett
which the above-mentioned fentence works in the decifion of this caufe. For that fentcnce
makes no radical feparation between the kingdom in queftion and female rule, but, finding
thole two things already feparated, it holds them ever af'ter by a kind of penal feverity
afunder ; and thus it permits not the laid union to take place de jure ; but when fuch a union
can exift de fa5io it doth not define. Wherefore it is not in vain, as rivals flanderoufly
pretend to fay, that we have with fo much labom- explored the fecrets, fT:rength, and nature
of the Law of Nature. For it is this law alone which is fufficient completely and per.'edly
to lay bare the hidden truth which we feck, and to lay it open from the very roots ; bi t tiie
judgment aforefaid, although in a certain fartiion it difclofe that truth, doth not reveal it
completely ; it unfolds it in part, but not perfecflly ; it lays it open temporarily, but not
always ; it proves it indirectly, but not diredtly ; it acknowledges it when Ihown, but did not
dilcover it at the firll. But this law of nature, as is faid above, works in afar different way.

28f> On the Law of Nature. [part h.

inafmuch as it unfolds and reveals this truth confuinmately, abfolutely, and perfccftly, by its
own and not by another's virtue, directly and not indiredly, originally, in ta^'t and in rio-ht,
in a way in which the above-named fentence cannot -A&i, which \,'as dc-livered upon the
accident of fin. Therefore we have rightly aflerted that this law alone is capable of dealing
with our queftion ; and thereto we add moft properly the Divine law, which confirms its
decrees and commands their obfervance more llrongly than the human law could itfelf do ;
yea, and by the vaftnefs of its authority it will put to flight every doubt and fufpicion of error
from the judgment of human law. Moft certain therefore and moft firm do we difcern that
conclufion to be which is derived fo uniformly from law at once Divine and human. Judge
thou, therefore, O beft of Judges, according to the judgment not of human law only, but
alfo of the Lord thy God.


Chap. XXXI.

Firjlly the King's Brother refutes the fimUitiides introduced by the Grand/on.

^,,,^5V5w^f^-jLFFFICIENT anfwer has, I think, now been made to the ftatemenfs contained n
^f^y^^^ the reply of the King's Daughter. The time, therefore, demands that I fhould
tf^^^^ oppofe the arguments urged by her fon, and by virtue of which he thinks he pan
enjoy the kingdom in queftion. Very adroitly did the fon flate his title, when he faid that
he demands his grandfather's kingdom through the medium of his mother, and not as lier
heir, whereby he thinks that he may evade the judgment of the rule which he himfelf ap-
proved, according to which no one can transfer to another more right than is decided' to
belong to himfelf But that rule is not fo much a doctrine of the Civil Law as of the 'aw
of nature ; fo that no one, however wily, can by any craftinefs efcape its truth. And when
the grandfon likens his mother to a rope, by which a beam is let down upon a building from
above, and to a found by which a word pafles into hearing, and likewife to a i ontrad: by
which the right of ownerfhip in the thing fold is transferred to the purchafer, coes he not
endeavour to prove that his mother is capable of transferring the kingdom of his grandfather
to his grandfon, although flie herfelf cannot be inverted with fuch a kingdom.' But the cited
of fuch fimilitudes proves lomething very different ; for tliat thing cannot be transferred to
another which has never refted in the perfon transferring. Whence the beam, which

PART II.] 0?i the Law of Nature. 289

the rope has let down upon the building, once hung fufpended in the rope ; the word, which

has parted into hearing, was inclofed in the voice ; likewife aifo the contract was not void

ot tile right which it transferred to the piuxhaler. But the woman, to whom the right of

reigning never could belong, as the faid grandfon as well as myfelf proved above, could not

transfer fuch a right to the grandfon, feeing fhe could not transfer to another more right than

may be difcerned to belong to herfelf For no fuch right was fufpended in her, as the beam

was fufpended in the rope ; nor did that right exift enclofed in her, as the word in the found ;

nor did the mother embrace in herfelf the right of reigning as the contraft did the right of

the contradf ing parties. For the contratfl takes away the ownerfhip from the feller and places

it in the buyer. But the woman cannot be the road by which fuch a right can pafs over to

another ; feeing that for luch a right fhe is not the vvay, but ftops the way herfelf Nor can

the nearnels of blood, which the mother contrafts from her father and transfers t3 her fon,

be likened to glue, as the grandfon fuppofes, inafmuch as the glue which joins pieces of wood

together always remains with each piece fo joined as a medium ; which thing the mother

is not able to do with the grandfather and grandfon, fince fl^e cannot touch the kingdom

which fhe would thus join to her fon. But, (and here is a wonder), I marvel greatly to find

^that the founders of the Laws feem to have forefeen that very difficulty in which the king's

grandfon is now, as in a labyrinth, involved, inafmuch as they were not content with the Ruli

of Law fpoken of above, but among the Rules of Law inferred another, as if to explain it. It

is this : " No one leaves to his heir a greater intereft than he had himf'elf," (fF. De Reg.

Juris.) What then can more thoroughly clear up this mill of fophifl:ry, and crufh the grand-

fon's opinion than does this Rule of Law ? For it not only, like the other Rule, rellrains the

man who has not an intereff from transferring it to another, but alfo exprefsly denies that he

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