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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can leave it to his heir. This Rule therefore takes away almofl every veil of doubt froi i

the minds of opponents. I'or a Rule of Law is not a new publifiiing of a law, but a brief

flatement of a previoufls' exifling right. Whence, in the fame Title (Law. i.) it is thus|

written : " A rule is that which briefly flates the thing as it is, not that the right be taken:

from the rule, but that the rule be made from the right which exifls." Wherefore, we mufTi'

not think the Rule now brought forward to be man's decree, but an elucidation of the law

- . . . I

which then was, that is to fay, the law of nature, making us more certain of its decree.

Concerning thefe matters, therefore, we will difpute no longer, feeing they are now open

and clear.




290 071 the Law oj Nature. [part 11.

Chap. XXXII.

The cafe -ivl.ich the Grandfoyi laid down is }iot like his awn title.

)ND what does the Gramllbn gain in this difpule by the rtatement which, with great
truth, however, he makes, namely, that if he had been the king's grandion not
^=4rS-' by a daughter, but by a Ton, and his father had died in the Hfetime of his grantl-
hither, he, tlie grandfon, would have fucceeded to the lame grandfather by hiw of nature,
through the medium of his father, although that father never hail the pov\'er of giving or
granting the kingdom to another? That, indeed, is all moll: true, but is difl-'erent from the
caie which forms the fubjed: of our difpute, and (o gives no fupport to the grani.l("un in this
controverly. For the king's ion is capable of holding the kingdom which isclai;iaed, and in the
lifetime of his father has a kind of latent right in it. For, as the Civil Laws 'fay, fons in the
lifetime of the flxther are held to be quaji owners (doinini). (Inllitut. I)e Heredum qualitate
et difTerentia. § Sui auteni). Likewife the Apollle alfo calls them "lords" when he lays,
"When the heir is a child, he diiTers not at all from a fervant, though he be lord of al ."
Nor would the patriarch Jacob, in the lifetime of his father, have bought his eldeft broihe-'s-
rights, if his brother at that time had had no right in the paternal inheritance; nor truly
would that prodigal Ipoken of in the Gol'pel, have iaid to his father, " Give me the pt rtimi
of goods that falleth to me," if at that time no right in his father's goods had fallen to him.
In the Kingdom of England, again, a fon can, in tlie lifetime of his father, endow his wi!'e
out of his patrimony, ad ojiium eccleficf, provided the father's afll-nt be given, but l"uch a {<.'\\
cannot do fo out of another man's patrimony, although that other man give his confent to o
endowing her. And if in the fame kingdom a grandfon claim an entailed eftate in the Kum's
Court, though his father (hall have died in his grandfather's lifetime, the petitioner will llate
that the right to that ellate defcended to his father from liis grandf ither ; becaule in the
father's lifetime tlie right of inheritance (teals infenfibly into the fon, whicli, after the fathi-r's
death, draws to him the whole inheritance. But fuch a right in the kingdom now at ill'ue
cannot defcend to the daughter, fince ilie is incapable of holding luch a kingdom, and is L-x-
cluded therefrom by Divme and human law ; it can therefore by no title be inveiled in her.
Wherefore inch a kingdom cannot defcend throLigh a woman to a grandion, leeing that it
could not have defcended to a daughter, even if fhe had furvived her father \\\<\ thus is
fhattered every title which, by reafon of the faid llmditudes, the faid (irandfon claims for
himfelf ; for thofe hmilitudes, when brought into combination with our c.ife, deiVrve to be
called not fimilitudes but lophilms.



PART II.] 0}i the Law of Nature.



291



Chap. XXXIII.

In ivJiat manner the Riglit of Inheritance firfi aroje.

l|mra UT fince our controverfy now turns upon the right of defcent and fucceflion, it
'~ '-^ feems ufcful to examine, not only by the rules of the Law of Nature, but alfo by
%'^%isis>^ the Divine Scriptures, what kind of right that is, fo that we may thereby be
able more clearly to underlland whether an inheritance can defcend from a grandt'ather
immediately to a grandfon. And, if I miftake not^ before the fall of man, the law of nature
in no way revealed that right to man. I'or the law of the defcent of pofreflions was not
known to our firft parents, fo long as they prelerved tlieir innocence, feeing that they then
polTeffed all things in common, and were therefore altogether ignorant of pro lerty which
could defcend. But afterwards, when they forfook their ftate of innocence, yrefcntly the
Lord faid to the human race, " In the fweat of thy brow thou fhalt eat bread ;" in which ,
words was granted to man a property in the tlungs which he iTioiild acquire by his labour;
as is more fully taught in the former Part of the Treatife. For fince the bread which a man
gained by his labour was his own, and no man could eat bread without the fweat of his own
brow, every man who toiled not was prohibited from eating the bread wliich by his own fwrat
another man had acquired; wherefore property in the bread fo gained accrued only to ihe
man who had toiled for it, and every other man was deprived ot any iliare in it ; and in this
way property capable of defcent firft took its rife. For our anceftors taught us to underftand
under the name of " bread," not only what is eaten and drunk, but everything whereby man
is fuftained ; and by the word "fweat," every induftry ot man. And becaufe property fo
acquired enfues as a compenfation for the fweat by which the body ot the acquirer is
enfeebled, the reafon of the law of nature hath united it to its acquirer, fo that the property-
gained might compenfate the damage refulting from his lofs of bodily wholenefs ; and thus
the property takes the place of the man's bodily integrity, which he has loil, and coheres a|s
an accident to the toiler, and fo thenceforth accompanies his blood. And yet property is not
an accident natural to man, but accrues to him by the rules of the law of nature, and, after
the likenefs of a natural accident, is united to him, not by the ties of the law of nature, as
nature had been originally inilitutcd, but as nature now exifts, Il:ript ot her liberty and
prilline powers in accordance v/ith the requirements of man's deferts. Wherefore when fuch
a proprietor hath a fon defcending from him, a certain right to the patrimony fo acquired
alfo defcends in the father's lifetime in a latent manner to that ion, as being a port. on of his
father's blood and fo a fharer in his toil. And, as the flower buriling forth before the fruit
is not the fruit, but a token of coming fruit, fo that right which defcends to the fon in his
father's lifetime is not a property in his father's patrimony, liut an indication of a property
which will defcend, whereby on the fiither's death all his patrimony, following that right as

I. .p 1' 2.



292 0)1 the Law of Nature. [part ii.

the fruit doth the flower, adlually defcends and imparts itfelf to the Ton. But in the fathei's
lifetime, who by his own deed acquired it for himfelf, it fhali not, without his own deed, b^:
torn away trom him, nor be capable of transfer to the fon by right ,)f fuccellion. Tlius th ;
land which Abraham bought defcended to his fon Ifiac, and from Ifaac to his fon Jacob, as
is faid above. The city, alfo, which the fratricide Cain built, his fons, though moft wicked
men, poffefTed by the rules of the law of nature. Thus then we have difcovered the fourcc
ot the law of defcent and fuccellion ; and from this we have drawn how property capable of
defcent originally took its fpring; how, alfo, that property annexed itfelf to man;'and laftly,
how, defcending from man to man by right of fuccellion, it infufes itfelf into each fucceeding
hen-. Neverthelefs, the above ftatements muil not be referred to every kind of property,
but only to property in immovable and prx-dial things, which tilings are lailing as man's
nature is. But things moveable and perfonal, which are not permanent, th.ugh gained by
labour, do not always pafs to heirs, but often to e.-cecutors, truftees, legatees; and ordinaries,
and fometimes to wives and children, to be divided among them, diltributed accordmg to
various local cufloms, in various ways.



1



Chap. XXXIV.

He here flw-ii's wJiat Defcent is, and •what is the nature of its frogrefs.
;^^N order now that the law of defcent, which we have tafted at its fource, may difp'ay



j^ itlelf to us as a whole, it ieems neceffuy for us to view it in the courfe of its
€1 flow, fo that it may be the better feen. And, in order to make progrefs towa ds
this end, we will firft obferve that there is a kind of ladder fet up from earth to heaven, the
fleps of which are the caufes of everything and of every hit, and the fides of whicl. are
Juftice and Truth, between which thofe fl:eps are placed and moft firmly fixed. On this
ladder march all things, which, under the guidance of the law of nature, either afJend
upwards or defcend downwards. By means of this ladder philofophers have afcendcd froni
the loweft created things up to the Firft Caufe, which is God, and by means of it all the fcMis
ot Adam have defcended, even to the babe crying in its cradle. By its means the Fvano-elift
Luke, though led by fupernatural light, afcended from Chrift up to Adam, who was the i^w
of God ; and in like manner Matthew alio defcended from Abraham to |of ph, Mary's
huftjand, ot whom Chrift was born. This ladder is the royal road of Nature, anu if any one
going up or down it fliall deviate from the track of the law of nature, he goes aftray, and
over the precipice, walking not in the way, but where no way is. The patriarch and prophet
Jacob faw this ladder ftanding upon the earth, and faid, " Surely the Lord is in this place :
this is none other but the hoLife of God and the gate of heaven ;" and again it is written,
"Jacob law in his fleep a ladder fet upon the earth, and the top thereof reaching to heaven,



PART II.] On the Law of Nature. 29^^

and the angels of God afcending and defcending thereupon, and the Lord refting upon the
adder." (Gen. xxviii.) AfTuredly, if heavenly fpirits afcend and defcend by this ladder, it muit
needs be that all earthly things fliould afcend and defcend thereby, inainuic'i as they, being
weighed down by the bulk of their burden, ftand in much greater need of lleps than
heavenly fpirits, efpecially as often as they make hafle and afcend to God, who refleth upon
the ladder, wliich thing they cannot accomplifli unlefs drawn by grace. And as to afcend
is to climb upwards, fo to defcend is, no one doubts, to go downwards, fo that we may
defcribe defcent to be progreirion from above by fl:eps of caufation. Wherefore, if anything
ilefcend not on this ladder ftep by ftep, but fink headlor.g to the bottom, its lapfe is not a
defcent, but a fall and a downthrow, which things threaten death, and are not the marks ot
life. For a fall is a delertion of the law of nature, and fo tends to corruption, and haltens
into non-exiftence ; as doth everything which refufes to be led by nature's law. For Nature
doth nothing fuddenly, but flep by ftep, and flowly and in fuccelTion ; becaufe it- is God
alone, as St. Augulline fays, who can a6t fuddenly and in a moment. Wlierefore, if under
the guidance of the law of nature, the kingdom about which we difpute defcended from the
grandfather to the grandfon, it muft defcend to him fiep by ftep on this ladder, as nature
has decreed that all things which defcend fliould defcend in this way ; fo that no ll:ep ot the
faid ladder can be omitted or paffed over, fmce all progrefs takes place thei-eby. hor other-
wife a haflening downwards would be a fall, and not a defcent, nor a guidance by the law of
nature, which direfts all things gradually by means of a continued feries of caufes, which are
its fteps. And fince every tall is a defe(5l, feeing it is a defeftion from nature's guidance,
every fall is alfo a vice and a fui, that is, a tranigredion of the order ot nature.



Chap. XXXV.

The King's Brother here jJiows -ivhat are the fleps of defcent.

(r\V^il^ UT as it has been related that the caufes of things and of adions are the ikps bv
\^j)lif . . .

which afcent and tlefcent take place on nature's ladder, it is proper for us now to

trace what thofe caufes are, in order that we may know alike what the firil Itep

is, what the fecond, and what the more remote in defcent of inheritance. For it is not

material or formal caufes which make the fteps, by which afcent and defcent can take place ;

they only furnifli the matter and fubftance wherein fuch fteps are fixed, and by which they

are diftingulflied. Therefore, it is only efficient and final caufes which conftitute the ifeps

by which progrefs upwards or downwards is made. Leonardus Aretinus, in his Intro-

dudlion to Moral Difcipline, fays that there are as many ends as there are actions, and he

calls an end that on account of which anything is done. Wherefore, if a man build a




294 On the Laiv of Natu7'e. [part ii.

houfe, that houfe is the end of his aftion, and therefore the builder is the efficient caufe, and
the houfe is the final caufe. The fame is the cafe in all actions that a man can think of.
Yet man's intention propofcs to itfelf two ends only, that is to fiy, a near and a remote o le.
For inllance, a man wiflics to build a houfe, in order that he may dwell in it ; this is :he
firll: end. He wiflies to dwell in the houfe in order to efcape the inconveniences of climate
and ot enemies; this is the remote end of his intention, though it was the firft end ia
his intelledt. So, too, every man, juft or unjuft, wiflies to be good, wherefore goodnefs is
the firil: end of all human intention ; to which end, however, certain intermediate adlions
appertain which have their own ends, of the kind that we are now difcuOing. But every
man wifhes to be good in order that he may be happy {heatus), and this is the ultimate
end of all human intention, The firil: end is attained bv the operation of virtue ; but as the
acquifition of the lecond end is fupernatur.il, there is no afcent to it on this ladder, except
the climber be drawn upward by grace. Therefore, the artifan, when the houfe is built, Las
ended his aftion, but the man who hired him to build it has not fulfilled his intent until he
has dwelt in the houfe. But inafmuch as we are now concerned not with the progrefs
of intention, but only with the fleps of ac'tion and ot things, let us return to the ! ature
of afcent and defcent made by way of thole Ifeps. Wherefore we proceed as follows.
Efficient and final caufes are fo continuoufly joined together in the adions of men, tliat there
IS nothing intermediate between them. For as the builder is the caufe ot the houl;, ij the
houfe, too, before it was built, caufed him to build it. Thus thole caufes are fo chauied and
joined together that nothing intermediate feparates one from the other. Wherefore every-
thing which defcends is hindered by nothing intermediate, but can proceed without break
from the caufe that caufes [i.e. the efficient caufe], to the caufe that is caufed [i.e. 'he final
caufe], which caufes, namely, the efficient and the final, 1 will not fay lay down tl e l.eps,
but are the fleps by which afcent and deferent is made on the ladder atbrefaid ; and of the
caufes, the efficient is the firft ftep, and the final caufe is the fecond ftep. And this final
caufe is alfo the efficient caufe of the caufe that follows next after it, and in like manner of
the following flep ; and the following ftep is itfelf the efficient caufe of the ftep that fuUows
next after it. As the father is the efficient caule ot the Ion, and the Ion is the final caufe of
the father's aft of begetting him ; the fon, alfo, is the efficient caufe ot his own offspring,
and that offspring is the final caufe of his adrl of begetting it. The latter is alio the graiidfon
of the above-mentioned firif begetter, and holds die third ifep in the ladder of nature. And
fince on this ladder nature condudls flep by ftep, flowly and fuccelfively, eveiything which
defcends, as the grandfather's feed defcends into his fon, as to the ftep next to 1 ini, and from
his fon into his grandlon, as to the flep next to him, and by no means imniedi; tel) from the
grandfather into the grandfon, fo the grandfather's inheritance, which the law ot nature
imited to him as a kind of accident, whereby it always accompanies him and his blood, doth
not defcend immediately from the grandfather to the grandfon, but delcends firll from the



PART Ji.] On the Law of Nature. 295

grandfather to his Ton, and then from him to the grandion, becaufc anything which defcends
cannot pafs by or jump over any itep, ib long as nature always afts by way of fuccelTion, as is
faid above. For in this ordei- the itrong man by degrees dechnes into old age, and the mtant
grows into the ilrong man. At this pace everything which grows increafes and decays.
Thus fummer glides into winter, and winter pafles into fummer. Thus the heaven makes
the circuit of eartli, and brings round again in its courle the day wliicli in the fame eoiu'fc
it put to flight. The fun, which is now ihining in Cancer, will not nidi fiiddenly mto
Capricorn, nor jiunping over the Lion will it leap into \'irgo, until in its fuccclilve courle 't
fhali have fpent a month in L-eo. l<"or with fuch a continuous courfe does natme rule the
globe. Wherefore the defcent of inheritance cannot polhhly efcape the law of a limil.ir pro-
grefs. Since, therefore, the kingdom in difpiite cannot by this procels delcend from the
grandfather to his grandfon, elpecially in the lifetime of the hitter's parent, and fmci nature
forbids the grandfather's daughter to obtain the kingdom, \^ that it cannot defcerd fron^
her to her fon, it follows that, fincc the grandfather has no other iffue, the inhabitants of his
kingdom ought to proceed to elert a new king, in inch maimer as fubjefts are accuf-tomed to
do by the rules of the commonwealth, as of'ten as their king dies without leaving an heir.



Chap. XXXVI.

^Tliere is >wthi)tg which doth not ilt;pe>id upon the Firjl Cauje through an unbroken

chain of Caujes. _ ,

OREOVER, everything which exifts hath a caufe of its exiftence, and tliat caufe
had another cauie, which had alfo a third caufe, by which that fecond caufe came
into being ; in the fame way from that third caufe we afcend by means of an
unbroken feries of other caufes up to the Firft Caufe, which is God. Wherefore there exiits
nothing which is not, by means of a continued feries of caufes, referred to God. Wherefore,
alfo, thofe caufes form, as it were, chains whereby every creature is faffened to its Creator,
and upon Him depend, and by Him are preferved in exiilence, as the I'liilofopher fays, in
the ninth book of his Metaphyfics, " On the tirft princi[de the heaven and all nature depends."
Thefe caufes are the lines and boundaries along which reaton runs, and reveals the truth in
things doubtful ; thefe caufes form the judgments of men and deted'their errors ; they teach
them to riiun what is evil, and to cleave to what is good ; and, next to faith, they are tl'j moft
perfecft rules by which every good man is taught. By thefe hang not only created ihmgs,
but alfo all right aftions. Nothing that is fhameful is connecfted by thefe chains, nor is any
evil thing entwined therein. Everything is mofl: righteous which by thele bonds is fallened ;
nor is there anything from God which doth not hang thereby. Thele are tlie golden chains
of which Homer fpoke, and alfo Macrobius, on the Dream of Scipio, who thus writes :




,1, "..fl



296 On the Lcnv of Nature. [part 11.

" Any one who looks clofcly into the matter will find, from the Mofl: High God to the
loweft dregs of things, one bond of interdependent links, and one unbroken connexion ; uul
this is the golden chain of Homer, which, he fays, God commanded to be hung from hea/en
to earth." By fuch a chain did the king, whofe kingdom is here at llake, hang fiom
God, as alfo his kingdom and all his polTelllons. I-'rom tliat king defcends the Daughter
who now petitions, and to whom all that king's inheritance defcends, with the fule exceptic n
■ ot his kingdom ; and from that daughter defcends the Grandfon, who is alfo now a com-
plainant, and to whom, after his mother's death, will dcfcend all her inheritance ; and in like
manner will take place the defcent from the grandfon to his pollerity through a feries of
molf rightful caules emanating in fuccellion fVom the h irll Caufe. But jult as in a material chain,
if one link or joint be taken away, the whole lower part of the chain, which was fuipended
downwards from the link or juncftion fo removed, immediately falls to the earth, bei ig
feparated from the other part of the chain which remains uninjured ; in I ke manner alfj in
the metaphorical chain, which we explained, lince the law of nature has undone on.e link or
joint, namely, the king's daughter, who was linked on next to the kin,;, by decidin;; that
llie was not capable of holding the kingdom, the whole remainder of that chain which was
fufpended downwards from her, namely, the above-named grandfon and all his pol erity,
has fallen, being ieparated from the uninjured part of the chain which remains. W'hc -efore
neither the grandfon himfelf nor his future offspring can now be joined to the faid :in ^dom
by means of the chain thus fnapped in two. Moreover, the feveral caules in the cha.n by
which the creature hangs from his Creator are relative, jufi: as father and fon, who admit of
no intermediate. Wherefore there is not in this chain any caufe without a thing imme-
diately caufed by it ; nor a thing caufed without a caufe immediately caufing it. All t lings
alfo fufpended from on high, if the medium whereby they hang be cut in :wo, immediately
tall to the bottom. Wherefore the king's daughter and her offspring cannot efcape from
this law, but, fince the line by which they all feemed fufpended fVum the decealed kiing has
been cut in two by the fword of the law of nature, they Iiave all fallen to the ground, being
altogether fhut out from the kingdom aforefaid. And fince there is tiothing, as has been fhown
above, which is not related to God by a continuous feries of caules, nothing w Inch is not united
to Him, and dependent upon Him, nothing which is not preterved in being by Him ; and'feeing
that the title which the laid grandfon puts forward to his grandfather's kinguom, which
title he calls his right, is not related, as already proved, to God by a continuous feries of
caufes, and fo not linked to God or fufpended from Him; from the above ffatemeiits it is proved
to demonfl:ration that that title is nothing, and therefore not of the nature of things ; where-
fore alfo it does not deferve to be called a right. In the fame way alfo, fii ce all that is
true, all that is jull, and all that is good in creation, hang fufpended by thele chains from
the highefl truth, the higheft julVice, and the highell good, which things are God, being
firmly linked to Him ; inafliiuch as that title, which the Grandfon calls alio his right, is



PART II.] On the Law of Nature.



297



fufpended by fuch chains neither from the higheft truth, nor from the highcfl; jultice, nor
from the higheft good, it is neither a true, juft, nor good title. And heice it aho follows
that for the faid kingdom to be pofTefTed by fuch a title is an unjuft thing and a iin ; fince
only iniquity and fin efcape the bonds of thofe chains.



Chap. XX^Vll.

The King's Ddiighter cannot be the caiij'c or medium by which his Kingdom dejcends

to the Grandfon.



|"^^1|OND though the deceafed king was the caufe of his grandfon, yet d'd he



not



^ #;], caufe that grandfon without a medium; and therefore that mediun. {o fepa-
^^"1^-© rated him from his grandfon, that neither of them was in immediate conta».'t
with the other; for that which is joined by a medium only touches the medium, and i;
by it forced to be at a diftance from, and not in immediate conjunclion with, the thing to
which it is fo joined. Wherefore fo remote a caufe cannot form a chain, feeing that betweer
the joints of a chain no foreign medium can exiil. By foreign I mean whatever intervenes
and is not caufed by the things that go before nor caufes the things that follow, fo that i
doth not reach from what precedes it to what follows it by any clofenefs of affinity. Whence^
though between the firft and third caufe of everything another caufe is always intermediate,
yet fuch intermediate caufe is not anything foreign, but fomething domeftic and familiar,



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