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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fince thofe three caufes would not be continuous, if the fecond caufe liad not itfelf intervened.
Wherefore, as the father's royalty affords no caufe for the daughter to reign, flie cannoi
herfelt confer the right of reigning on her fon, fince Hie is herfelf deftitute and devoid of fuch •
a right; and although flie be the natural and domelhc medium between the grandfather aiul |
the grandfon, by which the blood and private inheritance of the grandfather may be tranf-
ferred to the grandfon, yet in refped; of the kingdom, which Is public property, and which
the daughter cannot receive from the grandfather nor transfer to the grandfoii, fhe is a
fl:range and foreign medium, not joined to the grandfather and grandfon by any bond of
intimacy. As, If a man pofiefied of two properties, of which one defcended to him from the
father's fide, and the other from the mother's, fhould die without ilTue of his own body, he Is
then the medium whereby one of thofe properties Is transferred to his nearefl: relative:, of his
mother's blood, and the other to his nearell relatives of his father's blood, fo that in ref|-)ed
of his father's Inheritance the dying man is alien to his mother's relatives, and In rcf )ll;L of
his mother's Inheritance he Is alien to his father's relatives, and thus In one fubjedt there may
coexift a diverfity of rights which fiiall defcend from him in diverle ways ; fo in the deceafed
kino- there was tlie right of the kingdom, which is public, and cannot dclcend to the daughter,
while there alio refided In him the right of his private inheritance, which his daughter will
I. -"^ 'J.



298 On thi Law of Nature. [part ii.

inherit after him ; and in the dcfcent of this private inlieritance flie is the intimate and natural
medium. But thougli ihc he always a natural medium between grandfather and grand on,
yet inafmuch as with relped to defcent of the kingdom ihe is alien, flie is thus a medium
not fimply or abfolutely, but /ecu>iJui>i quid. And as in the cafe now put properties if
difFerent natures may relT; in one perfon, whereby fome of them will defcend to the agnates of t le
podellbr, namely, to relatives on his father's lide, and others to relatives on his mother's (ide ;
fo in the cafe ot the king now decealed, his kingdom and his other polleHions were not of one
and the fame nature ; for his kingdom, which is public property, is incapable of defcending
to women, as has been proved above, and ought tlierefore to defcend to the neareft male; of
his blood, fucli as I am, being the king's brother; but his other podelTions, namely, his
private ones, the law doth not forbid to defcend to his daughter. Nor a n 1 now oppof ng
her pofreffion of thefe ; it is the kingdom only which I claim, which dcfcends to me by a
moft direcl and unbroken feries ot caufes from my brother, witlmut any foreign niedium,
fmce he had no ion to intervene between me and him, and io to continue the chain which
binds the kingdom to the l-'iril Caule, tiiat is, (.joi.1. Wherehjre, by a dirce'l and unbroken
chain, my right depends from God; and my niece, the King's Daughter, though by a like
chain Ihe poflefs his private eftates, which liave alfo defcended to her from the f.tid Firll;
Caule througli an uninterrupted feries ot caules, cannot be a medium whereby his ku gdom
can defcend to the King's Grandfon. So alfo the private property of my brother is not
linked or faflened on to the chain by which the kingdom hangs; nor is liis kingdom i'r any
way annexed to tlie chain upon which that property depends.



Chap. XXXVIII.

He here confirms by Examples ivhat he proved above by Reajon.

^^^raOREOVER in the Kingdom of England there is a law of fuch a kind that, if any
vOfe !•) one iliall have been conviiiled, or, to ufe the words of that law, attainted, of| felony
1^4^ or treafon, liis blood is torthwith adjudged by that law to be fo corrupted that,
although by the prince's favour he efcape death, he neverthelefs will not be capable hence-
forth of fucceeding his parents in their inheritances, nor will any of his pollerity fucceed him
in his inheritance. Wherefore, if from that time m the lifetime of iuch an attainted perion,
or after his death, his father ihall have died polTefled of a property, however g 'eat, the Ion of
the man fo attainted will not, l)v tlie law of the land, be capable of iucceeding lis grandfather
in his patrimony ; but ratlier it will be contifcated, or go to the capital lords as an elcheat,
according to a certain dillinction of law well known in that country in cafes ot this kind.
Wherefore, as the inheritance of fuch a grandfather cannot deicend to his Ion who has been
fo convicted, fo neither can it defcend to his grandfon by the fon fo convicted, inalmueh



PARI



MI.] O71 the Law of Natuj^e.



299



as there is an intermediate ftep between the grandflither and the grandfun, namely, that
attainted ion, (though l)y the huv of the land the grandlon ihall have l^een hiinfelf cajvible of
any kind of inlieritance), hecaule anything which defcends cannot leap over or [xifs by any
ftcp. Wherefore, it the cafe which we arc difcurting fhall have arifen in that kingdom, wc
cannot doubt that the kingdom in queltion cannot dcfcend to the grandfon, feeing that his
mother, through whom us a medium he would obtain it, cannot by any right polTeis it.
But whether in other countries the law be fimilar, the prefent writer is ignorant. He re-
members, however, how in the Book of Xumbers, chap, ciy, it is written that the daughters
of Zelophehad, who was of the ieed and Tribe of Jofeph, came to Moles, fayin^'-, " Our
father died in the wildcrnels, and he v/as not in the fedition which was ftirred up airainll the
Lord under Korah, but died in his own fin, and had no fons. Give unto us a j oiTellion
among the kinsfolk of our father." And Mofes referred their caiife to the iud'j;mei t of the
Lord, who faid to him, " The daughters of Zelophehad afk a jult tiling. Give them a
poflertion among their father's kinsfolk, and let them fucceed to his inheritance." By the
petition of thefe daughters we are implicitly taught, that if their father had been fentenced
to death in the fedition aforefiid, as had been all thofe who were privy to, and guilty of
that confpiracy, and whofe iieirs were thereby incapacitated for fucceeding to any inheritance,
the daughters ot Zelophehad alfo could not have demanded anything by right of inheritance
through the medium of their father, although they were defcended from jofeph, who was
the ion of Jacob, to whom and to his feed, even as to Ifa.ac and to Abraham, the wliole Land
of Canaan had been promifed by tlie Lord. For, as we read in the ill and 2nd Books of
Kings, as often as the Lord judged any of the kings of Ilrael unworthy to reign any longer,
and punifhed them with the extreme of punifliment, their ions bv no means fucceeded them
in that kingdom. For thus were excluded irom the kingdom the fons of Nadab, who was
the fon of Jeroboam, the fons oi Elah, who was the fon of Baalha, the ions alfo of Zimri,
and the fons ot Joram, who was fon ot Ahab, and the ions of many other kings. Where-
fore, inafmuch as they were excluded irom the kingdom of their fathers, becaufe their fathers
were judged unworthy of it, a fut-tiori were their ions precluded from demanding that
kingdom by right of their grandfathers and great-grandfathers, the fathers of the kings who
were thus afTociated in punifliment ; wheretore none of thefe fons ever after that lield pof-
feillon of that kingdom. Wherefore alfo the grandfon, who is here a contending party,
fmce his mother by judgment ot the law ot nature is incapacitated for her father's kin ;dom,
and fo the fon cannot fucceed his mother therein, cannot a fortiori fucceed his grandfather
through the medium of his mother. So alio in the Kingdom of France a grandfoi by a
daughter does not lucceed his grandfather in domains conferred by the king on heirs male,
nor in the Kingdom of England does he iucceed to lands entailed on heirs male, as lias been
fhown above. Wherefore, iince not only by dilcourfe ot realun, but alfo by the evidence
of tne clearefl: examples, thou art inilruifled, O moil learned of Judges, that the King's



3°o On the Law of Nature. [part ii.

Grandfon, who contends here, cannot fucceed his grandfather in his kingdom, put him to
filence by thy fentence, that he trouble thy court no further, and decide my caufe, giving nie
the kingdom of my brother, wliich from the First Caufe by thefirmeli chain of uninterrupted
caufes is linked on to me, who in the next degree of fuccellion am allied to him, dying as he
died without offspring capable of reigning. And be not, 1 pray, wearied with my argument
prolonged in fo many words, feeing that as I am difcuding the greateft of earthly caufes, I
cannot unfold its merits in any moderate difcourfe, for whatever is to be great needs no
fhort time to grow.



HERE FOLLOW THE DUPLICATIONS OF ALL TTE
CONTENDING PARTIES.

DUPLICATION OF THE KING'S DAUCJHTER.
Chap. XXXIX.



The Judgment pajfed upon our firft parent proves that Jhe was notJubjeB by the \

Laiv of Nature. ■ '

^SjFI^HEN the King's Daughter, after remaining for a little in filent fufpenft f )r
^YA >^ aflonifliment at the aflute replies made to her by her fon and uncle, at length
^\f^E^ flightly drawing breath, recovered her fpirit, and addreffed the Judge as follows :
— Thou canft not fail, difcreeteft of Judges, to perceive the meaning and the merits of all
that my adverfaries have urged in reply. For thy underftanding is not like man's ; for t^iou
doft detedl at the firft glance the crafty devices of all who deviate from the truth, and
therefore I think it would be rafh In me to trouble thee any further on the fubjed of their
replies, fince there is even a proverb which fays, " A man may not teach Minerva." Leaving
it, therefore, to thy gravity to weigh the merits of their replies, I will endeavour to give
a fatisfadory anfwer to the objeftions of both my opponents in a fingle ftatemen:. My fon
has brought forward many arguments to fhow that the woman was fubjed to the man in the
time of their innocence, and my uncle revealed to us that it was on account of t!ie v.'oman's
fault that fubjedlion was impofed on her by the Divine fentence paffed upon her. If, then,
as the penalty of tranlgrefiion, the woman was placed under fubjedion, that fentence fhows
that before (be finned flie was not fubjed:. What righteous judge doth not impofe on a
guilty perfon a different punifhment from that which is due to ajuft one.-' And if fubjeftion be



PART II."] O71 the Law of Nature. ^^o\

not a penalty, why is it impofcd on the woman for her fin ? And if it be a penalty, why
did the woman, before fhe fell, fuftain it ? No reafon can be given. So, then, by tlie Divine
judgment aforefaid we are taught moll clearly that the woman, before fhe finned, was not
fubjeift to the man, inafmuch as it was on account of her fin that the Lord lo fubjjctcd her
to his authority. And, therefore, by the fame judgment everything is made void, whereby
my fon or uncle endeavours to prove that the woman was fubjeded to the man by the Law
of Nature.

Chap. XL.

Only married IVontcii are by the Divine Se}itence JuhjeB to Men.

f<rJ^|S OR HOVER, though the aforefaid fentence of God fubjefts the woman to the
VT^Rf power of the man, the circumfiances of that trial clearly inform us that not every
k?rB^ woman, but the married woman only, was by that fentence fubjedled to the power
" of the man. For as Adam and Eve were one flefli, and the man, as the Apofi:le fays, is the
head of the woman, inafmuch as our firft parent had prelumed to dired: her head, a thing
which was not conformable to nature, it is conformable to the equity of jufiice that for the
fault of her prelumption ilie fiiould tlienceforth be compelled to lie under the government of
her hulband ; and this penalty the infeftion of her crime tranfmitted to all thole of her
pofterity whofe fituation was like her owi. Wherefore it feems profane to imagine that
unmarried women, who have not furrendered themfelves to hufbands as their heads, ihould
be involved in the condemnation of that fentence, as our firft parent was who had of her own
accord furrendered herfelf to her hufband. Wherefore, fince I the king's daughter am not
now joined to any man by the bonds of wedlock, and am therefore not involved in the fcope
of the faid judgment, that law, impofed upon Eve and thofe of her {<ix who have followed
her example, has not furrendered me to the piower of any man, and confequently does not
exclude me from ruling the country which I demand. Let my fon and uncle, if they are
fiirong enough for the taflv, reply to thefe things, which fliall be the end of my argument ;
tor I do not propofe to trouble this audience any farther witli my complaints in rcfpert of
this fuit.



■ '■-{.

■in ni

."■•1 'ta



rV'




302 On the Law of Nature. [parf i.



DUPLICATION OF THE GRANDSON.

Chap. XLI.

The Son here Jliows that his Mother's firjl ajjertiun has been completely anjwered

by h.er Uncle.

fHE Son then, hearing thefe things, and, as if were, breaking out into ironical
words, fpoke thus : I perceive that my mother has now exhaufl:ed all her weapons,
js^ fo flight and fo frivolous, faving her prefence, are the argumei ts flie prefTes in o
aid of her cauie. For there are two things which fhe conceives, or rathei gueffes, to Ikuc
relulted from the judgment before referred to: one, that the woman was firft fubjedcd to the
man by force of that judgment : the other, that that juiigment bound married women only
under obedience to the man. But what can he imagined or thought of more filly than thefe
two notions, or more difcordant with the truth ? The firft of the two, before my mother
urged it, was made null and void by her uncle in his replication, when he Hiowei b / the
cleareft evidence that that judgment ifilied on account of thic woman having forfakei the
obedience which fhe owed to the man ; whereby we are taught that the woman was not by
that fentence fubjeded to the man, but that, becaufe fhe, having been fubjeft to him before,
began to kick againft his pre-eminence, her former fubjeflion was by that fentence more than
ever enforced and aggravated ; not, however, that a new fubjecflion was impofed upon her,
but that the nature of the old fubjec'lion was now changed ; fo that that which at the irk had
been free and voluntary, regulated at the woman's own pleafure, was now made in a manner
compulfory upon her and penal, and to be regulated at the pleafure of the man. YJt that
thefe things may ftand in a clearer light, as alfo the conjedtures in which my mother incjulged
under the fecond head, I will again confider, and more clearly handle, for a fhort time, certain
matters which have already been difcuffed in this difputation as well as in the former Tieatife.

Chah. XLII.

I

The Jubjetlion of the IVoman, after flie had finned, differed from her natural fubjeBion
in iiiiality, not in Jubjlance.

N the former Treatife it has been fhown that the man had pre-eminence {prelatiam)
over the woman and all the creatures of this world from the time of the creation
of the firft man. This pre-eminence is called by St. Thomas (in Prima Summ;e,
Oueftion xcvi., Article 4) dominion. And of this dominion he alfo, in the third hook of




PART II.] 0)1 the Law of Nature.



J03



the De Regimine Principum, writes as follows : " U we fpeak of dominion as it concerns
the duty of advifmg and direciiing, it may be called natural, bccaule it h:ul cxiftcd in the llate
of innocence." (And tliis is the opinion of Auguftine, in the 19th book of the De Civitate
Dei. And therefore that dominion v\'as appropriate to man, in fo far as man is a iocial and
political animal ; for there mull: be order in fuch a fociety ; and among things which are
brought into an orderly relation to each other there mutt always be fome chief and direding
thing, as the Philofopher teaches in the firll: book of his Politics; and this, indeed, the [prin-
ciple of order fhows.) A little further on, alio, he fays, " Therefore, according to this con-
fideration, the dominion of man overman is natural, and exiits among the aniTcls, and exllled
in the firlt ftate of man." I'hus he writes. And in the iame treatiie (Book 2nd) he fpeaks
in this way, " We mull; know that in a twofold manner a gi)verninent political ha? prece-
dence over a government royal. Firttly, if we refer dominion to that unblcmiflied C( ndition
of human nature which is called the flate of innocence, in which regal government did not
exift, but political, for the reafon that at that time there was no dominion which involved
fervitude, but one which involved pre-eininence and fubjeftion, in elirpofmtr and "•overning
the multitude according to the merits of each perlon ; that fo, either by influencing or
admitting influence, each man might l)e dilpofed according to the congruity of his nature."
By thefe words we are taught that in the time of man's innocence there was a pre-eminence,
which he calls dominion, importing the duty of adviiinn; and directing, and that there was
alio iubjeftion. But fince at that time there were not more than one man and one woman,
'and fince the woman had not the pre-eminence, we cannot doubt that the man had it. We
likewife fliowed above, as did alfo the uncle aforefaid, not only from fentences of Holy Writ,
but alfo from the cleareft evidence and the didates of rea((jn, tfiat the woman was ah/ays by
nature fubjedl to the man. And from all thefe things it is evident what kind of fubjedion
the woman's was before Ihe fet it at nought. For as St. Auguitine fays, in Book ijth De
Civitate Dei, " In Paradife, before man finned, he had everything which a good will could
defire, and was free from everything offenfive to the loul ^f a happy being." The woman,
therefore, defired the fubjecTiion to which flie was fubjec^t in Paradile when not yet a finner ;
and fince nothing is ever defired that doth not give pleafure, her fubjedion at that time was
pleafingto her. And, indeed, how pleafing it was to her is clear tiom what has been faid
above ; for nothing can give greater pleafure to any one than to know the truth in all
doubtful matters by means of another's authority ; nor can anything be more defirable than
to be i'afely guided in all matters by the diligence and labour of another, and not ro be
agitated by any doubts ; and the mind of man longs for nothing more ardently than to ; ttain
that which it naturally covets. All thcie things were accomplifhed in the woman's cafe, before
flie finned, by her natural fubjeftion to the man, as, frum ^vhat has been laid above, may be
clear to the careful reader. Let us not, therefore, venture to fay that this iubjec'tion v/as
impofed upon the woman as a punifhment for her fin, fince that which thus knows nothing



,■ . • J -'^r:)!! Ill



304 On the Law of Nature. [part ii.

of forrow cannot be a puniflnment. But afTuredly the judgment above referred to inflic5led a
punifliment upon the woman, fince it was publifhed aga'mll her on aec )unt of her fm ; for
the fubjeftion, in which the woman ufed to take fo much dehght, was by that judgment
made grievous to her, fince it made it compuifory upon all women alike, whether married or
unmarried. What can be more irkfome than to be robbed of liberty ? or more repugnant
than to be deprived of one's own will, and fubjedied to the will of another ? It was alfo of
neceffity a torment to the woman to be compelled to tremble under the threats of another,
inftead of enjoying her former delights. For the meaning of the word dominus is, as it were,
dans minas. Wherefore, fince the man has been appointed the lord of the woman, he is
able to threaten her, and therefore to inflift punifhment on her. All thefe things the laid
judgment hath worked in the woman's cafe. It was, therefore, no fmall punifl ment that it
inflid:ed on the woman, fince it not only took away from her all the delights aoove enume-
rated, but alfo furrounded her with fo many inconveniences. And thus it is now evident rhat
the fubjediion of the woman, which had formerly been to her defirable and joytul, was .io\ ■
by that judgment beftrewn with moft bitter circumftances. I''or circumftances, as the Law;
fay, qualify the afts of men. But the fubjedlion of the woman is, by force of this ji.dg
ment, qualified by moft bitter and troublefome qualities. This judgment increafed the mm',
dignity in power and honour, but tightened the woman's fubjeelion by enforcing a n on
fiiringent obedience than before. It added an additional quality to the woman's fubjecft.on,
but took away nothing from its former fubfl:ance ; it confirmed the old fubjeftion, but did
not impofe upon her one altogether new.



Chap. XLIII.

Not only marr'ud^ but aljo fingle lVo)nen are JuhjecJed to Men.






Y Y mother's fecond afiertion is no lefs objec5lionable than her firfi. For fhe faid that
f the judgment above referred to had fubjefted to the power of men only fu:h
■'^Ji^-**^ women as were married. But what can be further removed from the dictates of
reafon than this opinion ? Have we not fhown that at the very beginning of the exiflence of
the human race the female fex was fafhioned in fubjeftion to the male ? And, theref jre, in that
the firft woman had the prefumption to guide her hufliand, fiie tranfgrefied the rai'k afligned
to her condition in the order of the univerfe, and thereby merited the puniflTment ^'xcreed by
the faid judgment. How then could wedlock have been the finner, that it fiiould burden its
accomplices with a load heavier than others bear .^ It was not wedlock that finned, but the
female fex was the offender ; and, therefore, one penalty has now delcrvedly involved married
and fingle women alike. For the (m of the woman broke out of the vicious difpofition



'■- nai.'



PART 11.] On the Law of Nature.



305



of the guilty fex, and not out of the facrament of niatriniony. For, even if the firft
woman that finned had not been a wife, her fingle life would not have defended her
troni the fin of her prefumption, nor from the punifiimcnt which flie merited for that fin.
And, therefore, the order of matrimony is not polluted by that fin, although the whole
female fex pay the penalty of it; for punifliment always follows the offender, and punifhes
not the guiltlefs. Wherefore matrimony, which was guiltlefs of the crime of our firft
parents, remains alfo free from the punifliment which afllifts them for their crime. God
forbid, therefore, that any one fliould be fo foolifii as to think that only married women
have by the fiid judgment, or even by the law of nature, been made fubjed to men, fincc
matrimony rather endows women with liberty than humbles them with fubjecflion. Every
woman, when fhe marries, is taken as a companion, and never as a handmaid ; 'vherct'ore
Adam calls his wife a companion, when, fpeaking of his crime, he fays to the L> rd (Gen.
iii. 12), " The woman, whom Thou gaveft me as a. companion, flie gave me of the tree and
I did eat." And hence it happens, that if before betrothal a woman be a man's fervant, as
foon as flie is married to bin: flie changes lier condition, and from being his handmaid
becomes his confort. For marriage makes a woman fo honourable, that after its contrad
women always fhine with the honours of the men whom they marry. Thus Efiiher, though
a poor and infignificant woman, becante, as foon as llie was married to king Ahafuerus, the
greateft queen in the world. And thus every woman becomes, when married to a King, ;;
(^leen ; when married to a Duke, a Duchefs; when to an Earl, a Countefs ; and fo of all
other ranks and conditions, fince the Laws fay that women fiiine with the rays of their
hufijands. For if wives were placed under their liufLxuids by any other than a focial, or, a?
it is called, a civil fubjeftion, the inequality and humility of their condition would, out of a
certain fliame, deter them from the marriage-bed and the embraces of their hufbands ; and
fuch a thing would not be at all in accordance with the facrament of matrimony. And, ;
therefore, we do not read that even among barbarians a woman, when married to a noble, is
afterwards his handmaid. Neither would God the Father have furrendered the mother of I
His own Son to marriage, if fiie would have thereby become lefs honouralile than before.
Nor is a woman when free from the bonds of wedlock releafed from the power of man ; for, '
though flie no longer remain under her father's authority, flie will not efcape from obedience ■
to him who bears fupreme rule over the country in which fhe dwells. And, therctore, it is



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