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not permitted to think that only married women are fubje<5l to men.



■ -:q






ij(b )



3o6 On the Law of Nature. [part ii.

Chap. XLIV.

He here Jhozvs that the Divine Sentence is repugnant to his Mother s opinion.

MOREOVER the Divine fentence pafTetl upon the woman was two-fold and two-
SM'-a'/^l edged, becaufe it not only coerced her by the above-mentioned fubjeftion, but
•ik-^i^^ dehvered her up to forrows manifold in the pains of childbirth. And this penalty
falls with equal weight on all women, making no diftinftion between the married and the
fingle. We fee, therefore, no jull reafon why the fecond part of the fame fentence fhould
not, like the firil part, be extended to all women without exception, fince the fecond part
was neither conditioned nor modified, but, like the firft, was put forth abfolutely in the
plaineft words. And fince the fame caufe Jiiade married and fingle women i qual in crime,
it is not probable that fo great a Judge, who is an arbiter of perfeft equity, would have
adjudged them unequal in punifiiment, or on account of that fin would have tormented the
offspring, that had finned only in the perfon of its parent, the more fivarply if it were honoured
ijy the faerament of matrimony. For the fentence of that Judge committed no fuch varar es
in the cafe of Adam, who was a partner in the fir., whofe fons, whether married or not, God
made impartially fubjedt to the fame penalty of labour and fweat. Nor, indeed, in tin c^ fe
of the ferpent's brood, which wages irreconcilable war with all the feed of the womar, liis
the faid fentence exhibited any fuch diverfity of operation. Wherefore it is no lefs unwife
than fhameful to fay, or at any rate to think, that fo great a difcrepancy, or, more trul /,
inconfifl:ency, fhould have exited in the decree of fo great a Judge. Moreover, in whit
fenfe the Divine fentence conftituted the man lord over the woman, what kind of lord Hi p he
hath, and in what way it differs from the dominion which St. Thomas fays that man had m
the time of innocence, it now behoves us to examine. ,



Chap. XLV.

I
In what way the Dominion, -which on account of Jin was given to Man, differs fron' the
Dominion which he had in the time of innocence.

|§r^p%|OR, as has been faid above, a dominits is fo named according to etymclogy, qiiaj.




'^^ dans minas, (as one who ufes threats). L'or threats are a conditional fenten-x of future
punifhment ; fo that if the man who is threatened do not perfor n what is
enjoined him to do, he fiiall undergo the puniihment decreed for him. There is there-
fore no fubjeftion to a mafier without the power of punifiiment ; fince the iTian fubjeded to a
mafier muft of neceffitv fear and even tremble when he offends. And of this kind of dominion



PART 11.] 0)1 the Law of Nature.



507



St. Auguftine, in the De CIvitate Dei (xix. 15), fpeaks thus: " Man was made after the
image of God that he might be lord over the irrational creatures, but not over the rational,
becaufe that man Hiould be lord over man, is the confequence of fm." And y Jt if the kind of
dominion which now exifts was the confequence of fm, why doth St. Thomas fay that there
is a kind of natural dominion which exifted before the fall of man ? Afl'uredly the word
dominion in its hill extent and proper fignification imports dignity and the power of punifh-
ing, and therefore of threatening ; and fuch a dominion man had not over man before his
fall from a ftate of innocence ; (this is the dominion whereof St. Augultine fpeaks in the
place aforefaid) ; becauie a dominion of this kind was firft granted on account of lin, that is
to fay, granted to the man over the woman on account ot her fin. But the dominion oi
which St. Thomas fpeaks, although it imported dignity, had neverthelefs no power of
punifhing a contumacious fubjecft, nor of threatening him in any way, and therefor; fuch a
dignity deferves not to be called dominion in the proper and full extent of the word. • Never-
thelefs after a certain manner of fpeaking a dignity of this kind was a dominion, becaufe the
man who poffefled it was fee over the woman in honour and in the office of direfting her;
as the holder of a public office is fet not over the flave but the freeman, direcfting him
according as his interefts as a free man, and the common good require. This is the kind of
dominion of which St. Thomas fpeaks in the xcvi'" Qi_ieftion aforefiid. For the fons of
kings and prmces are called douiini, although tliey are illullrious only by reafon of their
dignities, and have no power of jurifdicftion ; and fo queens are called doinhi.e, although they
have no power of punifhing the inhabitants of the kingdom. By the fime manner of fpeak-
ing alfo does the Philoiopher in his Politics call thofe who excel in wifdom domiaos, faying that
as the man who excels in i1-rength of body, but is wanting in underllanding, is by ,iature a
flave, fo the man who is vigorous in underftanding and a6tive in mind is by nature a lord.
Yet we know that the wife are not always lords, nor the deficient in underftanding always
flaves by nature, becaufe St. Auguftine in the faid book fpeaks of flaves in this way : " We
nowhere in Scripture read the word ' flave' before righteous Noah by that word pronounced
puniffiment upon the fin of his fon." But the origin of the \von.\/e>-i!i{s (flave) is faid to be
ci Jervando, becaufe they who by the laws of war might have been put to death, wlien their
lives were preferved to them, were called flaves. And therefore the Philoiopher did not
with ftricfl propriety call the deficient in underftanding flaves, nor thofe who excel in wifdom
lords, but only after a certain manner of fpeaking ; juft as St. Thomas employs the word
lord, becaufe thole who direil and advife their fubjeds are in a certain lenle lords, na iiely,
in dignity and office, as are the dominations in the order of Angels, who only direiit their
inferiors by moral influence. For this reafon St. Thomas called fuch an office a dom mon,
as is evident in the faid Queftion, and likewife in the faid fecond book of his De Regimine
Principum, where he fays that dominion was before the fall of man political, and did not
involve fervitude, but only pre-eminence and fubjeiilion. And therefore that dominion was



/, I. -:;



3°8 On the 'Law of Nature. [part ii.

thc pre-eminence, or prelacy, fpoken of in the former I'reatife, which the Lord gave to man
when Ife formed him, and dcfired him to have tlominion {pre-effe) over all the creatures of
this world, a pre-eminence which was at that time entirely devoid of any right to punifh or
threaten. But now and for ever there remains a ])re-eminence over woman (|ualitied very
differently than before, fince that which now exiils confers the power of threatening and, if
needs be, of punifliing, on which account it hath properly acquired the name of dominion, or
lordfliip, over her.



Chai>. XLVI.

iro-iuan IS Jul j eel to the Man, provided /lie obey him in refpeH of any kind o~ Dominion.

^mw|MFTER the dominion which was conferred by the Lord on the man to be exer-
^S^^^^^O, cifed over the woman, there was eltablifl-ied by man another kinii of dominie n,
Ifer'S-fe^ by virtue of which one human being rules over another of either fex, a dominion
which is called political, not that dominion which before the fin of man knew nothi ig of
punilliment, hut another kind of dominion which inflids punilhment on every offending fii .)-
jert. This dominion lirfi: crept in during the time of the wicked Cain in the ci y Df
Enoch, which he had built; and on this account is called not only political but alfo ci' il
dominion. Afterwards after the deluge, when the giant Nimrod had ufurped power over
men, and wars in confequence entered in among them, defpotic dominion arofe, whereby t le
conqueror reduced tiie conquered to flavery. And afterwards in the time of Ninus, fon jf
Belus, who, as St. Auguftine fays, was the firfl: man that was diflinguifhed by the name af
King, a third kind of dominion broke out, which is called royal. And a long time afterwards,
namely, in the time of Julius CxMar, there grew up the greatefl: dominion of all, that ofjthe
Romans, which from that time was called imperial, and which St. Thomas in the aforefaid
treatife of his, De Regimine Principum, aflerts to have been both political and royal. Olher
forms of government (dominia) alfo, called by different other names, as thofe which the
Fhilofopher calls an ariftocracy, an oligarchy, and a democracy, as well as many others, have
originated from human inftitutions at different times and places; all which have, witho'it re^rard
to fex or rank, fubjeifted to their authority women as well as men, married as wl-11 as fnif-le
women. And therefore women have been fubjefted not only to their own huffiands, as Eve
was to Adam, but alfo to other men in whofe jurifdidlions and territories they dwel . Not that
married women could on that account efcape the dominion of their hufbands ; b it to diftin-
guilli between the other kinds of dominion, which grew to be fo numerous, and the dominion
exercifed by the hufliand over his wite, the ancients calletl this latter an economical, focial, or
ci^^il dominion. For an a'conomiciis is a difpenfer as well of money as ot corn and all other
poffelTions ; (thus the hufband difpenfes all things which the married couple poffcfs); and civile



PA



RT 11.3 On the Law of Nature. 309



is derived from civitas, not that which is furrounded by walls, but that which St. Augulline
in the firft hook of his De Civitate Dei defines thus : " A civitas (a ifatc, coninionwealth)
is a multitude ot men united by feme bond of focicty, from whicli kind of ihite the city in
its material fenie derived the origin of its name." in like manner is it with civil dominion ;
wiience a civil dominion is fo called as being a focial dominion, fuch as every man ponelTes
over his wife, who, as is iaid above, is joined to him as a companion {j'ocia), and not as a
handmaid. For from the fide of the firft man was his wife formed that fhe might live by
his fide, and be a companion unto him. Under this dominion is every wife fubjefted to ^ler
hufliand, though fhe and he be fubjedfed to other men under other kinds of government.
But a fingle woman cannot be fubjefl to this economical dominion ; and yet flie cannot be
free f'rom all dominion, fmce every woman has been commanded to live under man's power,
and man has been appointed her lord ; tor all that the Lord pronounced judicially to our
firft mother, He pronounced not only to her but to the whole female fex ; and therefore no
woman can efcape the penalty impofed upon Eve, even as no man can elude the penalty
decreed againft Adam. Wherefore every woman is judged to be, like Eve, under man's
authority, inafmuch as Eve is held to have been fo fubjeeted. Neverthelefs any and every
woman is not commanded to live under the power of every man, nor was any woman after
Eve committed abfolutely by the Divine judgment to the power of any and every man. For
the Lord had fiid to every woman, " Thou flialt be under man's power;" and He faid not,
•^ Thou ftialt be under the power of every man," nur " under the power ot thy huftjand,"
whereby He would have fubjeded married women only ; but He frys indefinitely, " Thou
fhalt be under man's power." Wherefore, if ftie ft.all be under the power of any man what-
foever, fhe doth not efcape the effeft of that judgment ; for an indefinite propofiticn is true,
if it be true in a fingle fubjecff. So likewife the woman is not by the Divine judgment fub-
jefted to any one given fpecies of authority ; and therefore, if flie be fubjetliled to a man who
rules with an economical, political, regal, or any other kind of government, rtie lives imder :
man's power, and is fubje(5l to his dominion. God forbid therefore that we fbould think
that any woman, though fhe have not reached the age of puberty, and therefore not efcaped
from the fear of paternal authoritv, and be not fitted for nuptial union with man, is fet free
from man's dominion ; fince all women, married and fingle alike, are abfolutely and precifely
embraced in that penal fentence pafted by the Lord upon Eve, " Thou ftialt be under the
power of the man, and he ftiall rule over thee." Yet not all things which Holy Scripture
fpeaks concerning the woman's obedience to the man are to be referred to the whole female
fex ; for many of its fayings concern only the obedience which a wife owes to her hufband,
as for inftance that in i Pet. chap, iii., " Ye wives be in fubjet^ion to your own huft auds;"
and that ftatement in the fame chapter, " For after this manner in the old time the holy
wome\i adorned themfelves, being in fubjedion unto their own hufbands ; even as Sarah
obeyed Abraham, calling him lord, of whom be ye the daughters, doing that which is good."



310 0;/ the Law of Nature. [p.'



ART II.



Thefe things moreover are clearly diftinguifhed in the xxxiii''. Canon, Queftion 5, ILec imaz^u,
where it fays at the end : " 1 lence it is fufficiently evident liow the law would have women fub-
jeft to men, and that wives flioiild be almoft their fervants." Lo ! how that Canon fpeaking of
all women fays that they are fiibjed: to men, but that only wives fliould be fubjeCl ahnoft as
fervants. And now, O moft righteous of Judges, I ought not, I think, any longer to call
upon thy fagacity in regard to the objeflions of my mother ; the time alfo warns me to turn
myfelf to the replications of her uncle. To thefe, therefore, I will now endeavour to reply,
as I am able ; and would that I might find in them no greater difficulties than I have found
in my mother's objecitions.



HERE FOLLOWS THE GRANDSON'S DUPLICATION TO THE ■

ALLEGATIONS OF THE KING'S BROTHER. ,

Chap. XLVII.

/// the firfl place tlu Grandjon repudiates the la-ivs of foreign Kings.

cOi&frN/ R^Y mother's uncle and mv crand-uncle, although he artiued in a prolix and fhrewd
ijp\ \/m P difcourfe, appeared to prove two things only which could be a bar to my title cf
TKrv^-*^ lucceffion. One was this; he alTerted that every inheritance which can com;
down to any one by title ot defcent, muft defcend to him by degrees and continuoufly, an 1
that it cannot pafs by or Ikip over any llep ot delcent ; which things he endeavoured, in no
fhort difcourfe, to prove by reafons fpringing from the courfe of nature. And the feco^nd
thing which he alleged was this : In the Kingdom of France, he fays, and likewife in the
Kingdom of England, if any eftate be given to a man to hold to himfelf and to the m!dc
heirs of his body, that eftate is by the laws of thole kingdoms prohibited from defcending
to a grandfon born ot a daughter ol the donee. But what can this laft argument cdn-
tribute to our controveriy, fmce it is concerning the decifion of the Law of Nature that we
are contending, and fmce that law alone avails to fet our fuit at reft ? But the laws of France
and England do not overleap the boundaries of thofe countries, and therefore they cannot aid us
who are contending for a kingdom which acknowledges no fuperior, and which i. therefore
no more fubjecfl: to foreign laws than it is to foreign power. I'or me, therefore, 10 contend
with many words againft this laft point would not be fet down to wifdom, but might
rather be called impertinence. Wherefore the whole force of my great-uncle's argument
demands a reply to his firft affertion only ; and this, tlierefoie, omitting all the reft, I thus
proceed to demoliih.



PART II.] On the Law of Nature.



CriAP. XLVIII.

The Grand/on here introduces- the Civil Lazv againjl the replications of his Great-uncle.



Jfc^SIi^



^p?<HE Civil Law commits the guardianfhip of children to the neareft relatives th



X[«f)j ^.-^^nJi v^ivii Law commits tne guaraianlnip or children to the nearelt relatives they
g^l "^^ have of their own blood, whether thofe relatives be agnates or cognates. Never-
^1^&2S^ thelefs the Civil Law does not grant the guardianfhip to a woman, except ihe lie
the mother or grandmother of the infant. Yet, if the fon of a paternal or maternal aunt of
the ward be the neareft male relative of his blood, and not fubjeiil to any legal defed v.hich
would exclude him from the office of guardian, it then commits to that fon the guardianfliip
of the ward in the lifetime of his paternal or maternal aunt, on account of the ne;;,-nefs of
blood whereby the fon is related to the infant, and notwithllanding that the fon conti .lifts that
nearnefs from his furviving mother ; as is more manifeftly declared in the title De legitima
Tutela, &c. Collation ix, where, among other matters, it is written: " For we decree that
every man, according to the degree and order of relationfliip whereby he is called to the
inheritance, either alone or in conjunftion with others, undertake the duties of guardianfhip,
and that herein no difference be introduced concerning the right of agnates or cognates, but
all alike are to be called to the guardianfhip, who being related to the minor, defcend by the
male or female line;" and a little after it fays, " We alfo prohibit women from undertaking
the duties of guardianfhip, unlefs they be the mother or grandmother." Wherefore, feeing
that the fon of the ward's paternal or maternal aunt muft, on behalf of his mother, who
cannot take it upon her, be admitted to the guardianfliip even in his mother's lifetime, the
aforefaid Civil Law affords no reafon wliy the deceafed king's grandfon by his daughter
fhould not, on account of the nearnefs in which he is related to his grandfather through his
mother, be capable, even in his mother's lifetime, of poffeffing his grandfather's kingdom,
which his mother cannot hold. Thus, although we are far from holding that the Emperor
hath any authority to enad: a law which fnould decide our caufe, yet the law framed by him
proves in our cafe what decifion ought to be given, inafmuch as the Civil Law doth not
decide nor affirm anything againft the equity of the Law of Nature.



.4 \



I.J' '



12 On the Law of Nature. [part i



DUPLICATION OF THE KING'S BROTHER.

Chap. XLIX.

And firjl he proves that La-ivs all and fin^ular are Jeapnable in this controverfy.

XTSIFI^HEN the King's Brother fmiled within himfelf a little, and fnoke thus: The
Wl ip^ King's Grandlbn makes little of the laws of the molT; powerful kings of the
^^iTSSinfi, world, for the reafon that the kingdom for which we are contending doth not I'e
under the authority of thofe kings ; yet the laws of the lunperor, who alfo has no authority
over that kingdom, he now tells us ought to be admitted in this controveri/. What can be
farther than this from the judgment of reafon? For where the cafe is the fame, there, as
the Laws fay, the judgment ought to be the fame. And inafmuch as the grandfon quotes the
laws of Ca?far, who can have no jurifdidion in this cafe, he leaves himfelf no jull groands
why he rtiould reject the laws of the kings referred to ; nay, he tacitly concedes t le very
thing which he at firft openly and exprefsly denied. And if, as he aflerts, the Ci 'il Law
doth not forfake the precepts of the law of nature, it would feem both rafh and u iju I to
think otherwife of the laws of fuch great kings. And therefore that the laws of thefe kings
will, like the Civil Law, be ufeful in this difculTion, is not only proved by his own fp.ech,
but is pointed out by the dictates of reafon ; not becaufe the authority of the laws of fuch
legillators contributes anything to the trial of this caufe, but becaufe the fame reafon which
urged them fo to frame thofe laws, may likewife urge others alio to come to a like juagment.
¥or jus is derived from J ujNcia, as St. Auguitine fays : " Where there is no true jull:ice| there
can be no true law (jus), becaufe that which is done jure, is alfo done juftly." (De Civ.
Dei, lib. xix.) I therefore admit the laws of all kingdoms as being in a manner oppjjrtune
in this caie, in fo far as they reveal the truth of jufVice, which is the law of nature, as has been
decided in the former Part of the Treatile. In this difpute, therefore, we by no meansi re]c6l
the decifions of the Civil Law, nor yet thofe of the faid kings, although this fuit cannot be
fettled by their authority, but only by the authority of the law of nature. And therefore I
refufe not the fentence even of that Civil Law which the king's grandfon now brings forward ;
becaufe I doubt not that it ifTued from the territory of nature's law. For vhat could be
more agreeable to the defign of the law of nature than to entruft a tcnde ■ orphan, de-
prived of both parents, who cannot guide himfelf, to the guidance of an upiight man the
nearell: to him ot his blood ? Who could more tenderly and carefully cherifh fuch a one
than his neareft blood-relation ? A man, too, is better adapted than a woman to inllrudt fuch
a one in manners and virtue, and alfo to manage his patrimony, and to give an account of



PART II.] On the Law of Nature. 313

his revenues to the young man when he fliall have come of age and be grown up. But a
woman needs, Hke a ward, the care of a man even in her own [)roper purfuits ; and there-
tore not only by nature, but by the Divine law, fhe is placed under the government of man.
I therefore embrace with my underllanding and commend the aiorefiid law of Collation IX.
And fo it now oiily remains for me to lliow why this law, which is afferted to be repugnant
to my replies, can neither contradiift them nor ftand in their way ; and this I proceed to do

as follows.

i

Chap. L.

He here Plows how unlike is the Cafe ju ft laid down to the Cafe in dij'pute.

^^^5? HE Civil Law referred to enaifts nothing which is direftly oppofed to m / replies,
i^/h "^^ and therefore if it be confidered to have any bearinrr againft them, i. mult be
^^^^S'& acknowledged to have it indirectly, and by force of analogy. Let us, therefore,
firft inquire to what extent the enaftments of this law are like the things which I have
{ketched above. This law gives to the fon the guardianfhip which it denies to his mother.
1 have denied to the Ion the kingdom which the law of nature denies to the mother. This
law fummons the woman's fon to an onerous duty. I rejed the woman's fon from a duty,
not only onerous, but honourable. That law decides who fhall difcharge a certain private
duty. I argued concerning a duty not private, but public. Tliat law felefls a fit and proper
perfon for the fervice of another. I have conferred on a man, without regardmg his merits
or demerits, not another man's, but his own inheritance, not by title of eleftion, but by that
of defcent. That law choofes a man ripe in years, endowed with forethought and good fenfe.
I admit young men, nor do I rejed thofe who, by defei5t of nature, are deficient in mind.
That law appoints men to adminiller, 1 to rule. That appoints them to look after another
man's intereft, J to look after their own. Why need I fiy more ? To a dignity, which
nature refufes to women, I admit not their fons any more than thcnifelves ; but that law
admits to an humble duty, from the performance of which nature rejects not the woman, the
fons of certain women, and does not difqualify all women. Wheretorc, fince, as the Laws lay,
we meafure the law by the fa<5ts, fimilar laws, or one fyrtem of law, cannot rule tails fo dinimilar
and of fuch different value. Public and private duty, as has been fhown above, are not
governed by the fame law, nor do an inheritance and the conferring of an office fiill unier the
fame principle of law, fince right of defcent confers the one on the heir, human reafon i ifpoies
of the other according to merit, as the Civil Law does now, fo that guardianfliip is often called
in the Laws an office. But all the individual cafes, which are to be governed by o.ie law,
■,ought to fall under the fame principle of jurifpruilence. Thus a public crime and a perfonal
wrong are not governed by the fame law, nor is the defcent ot land governed in the (ame
way as a contradl. The kingdom which we feek is real property, capable of defcending to
r. -s s.



1 3i\". V^A.'






! -: ..■;flli)'-/



314 071 the Law of Nature. j"



PART ]i.



the heir ot the preceding king. But to govern a child and to manage his patrimony is 1
perfonal charge; and therefore the law, wluch takes cognifance ot the choice of fuch i
governor, is ignorant of the right of hereditary defcent. So tlie law which piinifhes criminal
offences knows no mitigation of ieverity in the cale of perfonal or private wrongs ; and, there-
fore, there are as many different kinds of law as the merits of the adls are different. Thus,



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