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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the judge, in the cafe of crimes, extorts the truth by torture; in perfonal cafes he learns the
truth by the depoiition of a third party. Thus real property defcends to agnates ami cognates
but moveable property is feized and difpofed of not by them, but by legatees or executors.
Wherefore, fmce the cale of the Civil Law and the cafe we are difcufFmg are fo unequal in
merit and diflimilar in facfts, and therefore do not fall under one and the fame principle of
jurifprudeiice, neither one law nor a like law can rule both cales. That '"naftment of thr
Civil Law then doth not run counter to my replies, either directly or indindly and by wa-.
of analogy, nor doth it derogate from an}'thing which I have urged. .

Chap. LI. '

A laisj promulgated by man doth not prove that the Laiv of Nature points the Jame %my

'i vf^TtrOREOVER all the laws of the world do not contain the fame enactm.-nts
rpXVtA r concertiing tlie adminiflration of guardianlliip as the Civil Law. For in the
-^:S-V^-%!^ Kingdom of England, if an inheritance, which is held under the kind of tenure
called in that country foccage, defcend to one who has not arrived at the age of puberty
from any of his agnates, neither the inheritance nor the child fhall be under the cuf^od ^ of
any of his agnates; but both himlelf and his inheritance fhall be under the control of his
cognates. And if the inheritance of the heir fltall have defcendcd from the fide of his
cognates, then the ward and his inheritance fliall be in the cuftody of his nearell: a'^natt and

not his coa:nate, until he fhall have come of age. For thofe laws fay that to commit the
... . . ... I

guardianfhip of an infant to him who will next fucceed him in the inheritance, is like com-
mitting the lamb to the wolf to be devoured. But if the inheritance is held not in foccarre, but
by military fervice, then by the laws of that land the infant himfelf and his inheritance ihall
be in the cuftody neither of agnates nor cognates, but of the lord of the fief. vVhereforc
as in that kingdom the laws differ from the Civil Law on the cuftody of wards, it is alto as
probable that the fame difference exiits in the laws of other countries, efpec'ally of thole
countries which do not obey the Emperor ; and hence it is plain that the mana^jement of
guardianfliip is not regulated after one pattern in all places, and that all kingc oms are not
ruled by the Civil Lasv. And therefore we may confider that enadment to have emanated
from the authority of the Emperor alone, and not to be abfolutely a decree of the law of
nature, which is uniform in all countries. And this the words of the law itlelf fliow to any
one who carefully conliders them. For in old times legiflators, when the courle of the Law

PART II.] On the haw of Nature.


of Nature diJ not plcafe tliem or the people, often publillied fuch other laws as they defired.
And in this way alio cullomary laws were introduced, as is evitient in Canon \\ J^'- C".
Oiinies k^cs. And therefore all laws decreed by man, though they be not diredly oppofed
to the law of nature, from which tlicv ftart and in which they mult of neceflity Hiare, do,
nevcrthelefs, undoubtedly within certain limits differ from that law ; for they would not be
other laws, but the fame law, if they did not in fome refpefts differ therefrom. Therefore,
tile faid enactment ot the Civil Law, which is accounted a conltitution of man, fliows by reafon
of its framing that its own decree, in the cafe which it decides, is one, and that before its
promulgation the decree of the law of nature was another, and thus it decides that in the
matter of the guardianfhip of a ward the law of nature judges not as it doth itfelf, but
differently. How can, therefore, that enaiftment, which differs fo much from the law of
nature, though it give the office of guardian to the Ion in his mother's lifetime, on : ccount of
the mother's near relationlliip by blood, prove that the law of nature will afli^fn a ki:i"dom
in the fame hianner — the law fiom whole fentence, even in the management of guardianfliip
the Civil Law, by its decifion, proclaims itlelf to differ ? Therefore, not only does that law
not prove that which the king's grandfon endeavours to infer by its means; but it mulf be
held rather to prove the oppofite. But lell:, by labouring in thefe Hiadowy and imaginar\
regions, we be flanderoufly faid to lole our road and go altray, like men on a foggy day, le:
us fearch for fomething clear and folid, and free from every cloud of doubt, if any fuch
thing can be found in the Civil Law, which may difclolc the naked and fhining truth of the
grandfon's title.

Chap. LII. ' '

-The Civil l.auj -prolnbils the Grandfon by a daughter from fucceedtng to his Grandfather

in honour and dig)iity. I

'^J^"13j^N the volumes of the faid Civil Law it is abundantly found that flation, dignity, I
fe-'', ptf^Q ^'ii-^ rank defcend to the heirs from agnates and not cognates; to wliich relate
^?fe^VS 1. j. C°. De Dlgnitatibus, and the ordinary Glofs on the fame, and 1. Cum legitime '
ff. De Statu Hominum, with theCjlofs on the fame. And who are agnates and who cognates
is taught in the Inftitutes, De legittima Agnatorum Tutela §. j., where it is thus written :
" Agnates are thofe who are related to each other through males ; that is, as related ihrough
the father, as a brother by the lame father, or the Ion of a brother, or the ion of fuel a fon.
But thofe who are related through females are not agnates, but merely cognates )y their
natural relationfliip." All this teaches us moll: clearly that by the Civil Law itation, ilignity,
\or rank never delccnd from a mother to her (on, nor from his maternal anceltors, fince they
are cognates and not agnates, and therefore not from a grandfather to a grandfon by a
daughter. And this is exprefsly declared by the text in 1. I.iberos ff. De Senatoribus, where
I. .s s. 2






• ••!(;


3^6 0)1 the Law of Nature. [part u.

among other things it is thus written : " We ought to account as children of fenators not only
the funs of a fenator, but alio all funs born of thumfelves or of thc'r male children, whether
they be natural or adopted. But if a inan be born of the daughter of a fenator, we ought to
regard the condition of his father." To this refers the text in 1. Exemplo alias Exemplum C.
De Decurionibus, together with many others. What, then, could more plainly fet forth the
merits of the faid grandlon's title to the kingdom of his grandfather than the Civil Laws do
in theie paffages, which fo manifellly declare that a grandfon by a daugh.ter cani.ot lucceed
his grandfather in itation, dignity, and rank ? 1-or, fince the regal elevation, Nation, dignity,
and rank are the loftieft of all temporal ftations, dignities, and ranks, inafmuch as fuch z
grandfon is incapable of fucceeding to the ftation, dignity, and rank of his grandfather, the
neceilary conclufion from the faid Civil Laws is, that he is incapable of fucceeding to his grand-
father's kingdom. Ceafe, therefore, O grandfon of the king, any farther to contend under
colour of Inch a title as this. You have invoked the aid of the Civil Laws,— they now decide
againll you, —even as we fhowed above that the Lasv of Nature decided againlf you.

Chap. LIH.

The Civil Law doth not allow women to reign, for reafons ha-e ajfi'j)ied.

^1 UT left your mother fhould, like you, truft for fupport to the aid of the C.vil
Law, I will endeavour to bring foiward, fo far as I at prefent remember, w lat
that law decrees concerning her title, as well as concerning yours. I recolle.^ t lat
it is written, (ff. de Judiciis 1. Cum proctor,) that no woman can be a judge, nor can diicharge
the office of judge, but ought to be entirely excluded from the whole body of judges. [The
fame rule is laid down in C. De Arbitris (1. (in.,) and alfo that flie cannot hold the office of
magiftrate. So alfo in ff". De Regulis Juris 1. Feiniiue, where thefe words occur : " Women are
excluded from all civil and public offices, and therefore they can neither be judges nor hold
the office of magiftrate." Moreover, women cannot fucceed their parents in an hono:ir \\\mc\\
is concerned with the adnnniftration of the ftate, (ft". De Muneribus et I lonoribus 1. hi qui
originem.) And what an honour is we are informed in the fame I'itle, (I. Honor), namely,
that an honour is the adminiftration of affairs of ftate accompanied with perfonil rank and
dignity. Honour is alfo defined in the lame way by the ordinary Glofs, ( C. Di I lonoribus
et Muneribus non continuandis li. \. I. j.j And altliough women can fucceed t icii parents
in the honour of reverence and refpeft, of which the Apoftle fpoke when he faid, " In honour
preferriijig one another," and alfo St. Peter when he faid, " Honour all nien"( i l^eter, chap,
ii.) ; which kind of honour all daughters of noblemen enjoy until they marry conmioners,
(See ff". De Senatoribus 1. Feniinx), and which honour married women alfo obtain in ritrht of

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


their hufbands, (See C. li. x. 1. fin., where the text fpeaks thus : '* We elevate women by the
rank of their hiifbantls, and ennoble thcni by the hiillianJi's family, and lix their legal rtatus
{forum) according to the hufliand's perfon, and change their domicile : but if they afterwards
marry a man of lower rank, let tlieni be deprived of their former dignity, and follow the
condition and domicile of their lail Iiufliand," — for " wives lliine with the rays of their
huflwnds," as the words of tlie text have it in Authen. De Conkilibus .V; vcro Co'lat. iiij.) -
yet, in honours which involve the adminiitration of llate affairs, accoiiipauied with perianal
rank and dignity, women, according to th.e Civil Law, never fucceed their parents ; for the
female fex has not the legal capacity for fuch an lionour. (See C. De Mulieribus In quo
loco, &c., and there exprefsly in the Glofs on the word lionores, and C. De Nuptiis I.
Imperiales, in the Glofs on the word digiiitaterii.') And that fometimes an honour is given
accompanied with adminillration of ilate affairs and fometimes without it, is flated i i the text
C. Ut Dignitatum Ordo f'ervetur I. ij. Hut every king is not oidy a judge, but a magulrate,.
and is refplendent in honour together with dignity and the adniinillration of the Itate. h'or
that he is a judge is evident, inaflnuch as he has the pure and mixetl authority [inipenum
merum et mixtuni), and alfo jurifdic-tion, and to hold thefe is the ofKce of a judge, (See If. De
Jurifdiftione omnium Judicum 1. j., together with the Glofs on the fame pallage). For he
holds the merum imperium who has the power of the iword for the puifiilimg of evil doers ;
and he holds the mixtum imperium who has the power of putting men into pofleifion of their
goods when equity requires it. The king poHcffes alfo jurifdiAion, for he can appoint other
judges under him. And that thefe are the duties of the merum ?i\\<\ mixtum imperium, and of
jurifdiftion, is the exprefs text, 'fi. De Jurifdiftione omnium Judicum 1. Imperium. The
Emperor alfb, whom formerly the whole world obeyed, attliat time, as at prelent, uifcharged
the office of judge, (See ff. De Conffitutionibus Principum 1. j. and C. eod. Tit. 1. fin.) And
indeed that every king is a magiftrate, and holds the molT: illutdrious honour, together with
the adminiIl;ration of the ftate, it needs not to teach by adducing laws, fince the facts are
notorious, and almoft all law books are f'ull of them. Yet as we have already declared what
it is to difcharge a high office or honour, it is alfo fuitable that we fhould explain what is
meant by holding the office of magiitrate. But on this fubjetl in ff. De Acculationibus 1.
^a accujare, and efpecially in the Glois, are thefe words : " He to whom is committed above
others the care or adminiflration of the ftate, holds the office of magiflrate." Wherefore,
that a king, to whom above all others fuch cares and fuch adminiflration belong, holds the
office of magilfrate, this defcription futfers no man to doubt. Wherefore, fince every king is
a judge, and difcharges alfo the office uf magiftrate together with the management o*' the
ftate, as the Civil Law teaches us, and fince a woman cannot be a judge, nor diicharge the
office of magifi:rate or any fuch office, as the faid law alfo teaches us, it neceffarii)' follows
from the fame laws that a woman cannot be king nor difcharge the office ot kmg, and there-
fore cannot poffefs a kingdom. Wherefore, although we fhowed that by the rules of the law


On the Law of Nature.



of nature women are debarred only from the fummit of fupreme authority, we now find, aftci-
having explored the decrees of the Civil Law, that th.ey cannot reign even in fubjeift kingdoms :
and thus the Civil Law rejects women from the office of reigning much more feverelv anc
itringently than we proved them to have been rejected by the decree of the Law of Nature.

Here ulil'erve
what ib Ci\il
Law, and
whence it
derives lis
n.ime and

CiiAi'. LIV.

The Civil La-w does not J'olve the qiiejlion propnJeJ, but renders its folution clearer.

pm^'^NI^ though it was laid down in the former Treatife that this caufe can be decided
Cife|^^ ^y '10 other human law than the Law of Nature ; yet even we acknowledged
ar^SW'a^ beforehand that other laws may furnifl-i aififtance f )r its diicuffioi , and that this
is true we now attnally experience, in that the iiiveltigations of realon, by whica we penetrated
to that truth which is the law of nature, have proved that the Civil Law, which we have
now brought forward, is firm and impregnable in its decrees. Vox agaiiift the diiMaLCS of
the law of nature the Civil Law has never decreed anything; although it has at tines
decreed in a different way, or in another manner, as indeeil do almoft all the laws promul-
gated by man. XwA hence, (ff. De Jufticia et Jure), it is thus written : " Civil Law i that
which neither altogether departs tVom natural law or the law of nations, nor in all m.itttrs
obferves it." Accordingly, when we add anything to, or fubtraA anything from, the conuiion
law, we make it ^ jus propriiun, that is, civil law. '

Chap. LV.

As the Civil Jo aljo does the Canon La-iv reject ■ivonien from the office of reigning.

?^ . , . . . - . . '

^UT it is expedient for us alfo to inquire whether the Canon Law, which governs

Y^ the i'poufe of Chrilf, that is, the Church, and therefore is held to govern all fhe
l'"aithful, pronounces concerning government by women in the fame way as the
Civil Law. Now in the Canons (xxxiii. Oueltion 5) it is thus written : " It is certain tli:.t
the woman has been hibjefted to the dominion of the man, and that Hie has not authoriiy,
nor can flie teach, nor be a witnels, nor pledge her word, nor be a judge." Wherefore, fince
women — becaule unable to be judges, or to hold the office of magifirate, or difcharge^'any
honour conneded with the adminiilration of the affairs of Itate — are rejected fron. the office
of king by the Civil Law, and fince the Canon Law permits them neither to be jud ;es, nor to
have authority, nor to teach, it follows that the Canons rejeci women frcjm the regal eminence
for the fame reafon as that for which the Civil Law rejects them. Neverthelefs, that thefe
things may be more clearly and openly evident, let us bring forward what the Apoifle lays
on the fiime fuhjed.

PART II.] 0?i the Laiv of Nature.


Chap. LVI.

'The Apoftle approves of the things which had been previoiijly fanflioned by the
Law of Nature.

)^N I Cor. chap. xi. it is thus written, " The head of every man is Chrifl ; but the
^" blH^ ^"^^"^ ^^ ^^'^ woman is the man ; and the head of Chrift is God." Who could
l^i^^'^ prove more forcibly that a woman is incapable of fupreme rule, or more clearly
ratify the form of our argument, conftrufted for the mod part of fimilitudes, or expreis
more openly the rank of all rational creatures endowed with bodies, than the holy Apollle
does in this pafliige, who teaches us, by this moll eafily underftood eulogy, how the woman
is fubordinate to the man, the man to Chrift, and Chrirt, in his human perfon, to G. -d the
Father ? The head, fiys the Apoitle, of the woman is tlie man, and the head of the man
is Chrift, and the Head of Chriil: is God the Father. Chrift owed obedience to God the
Father, to whom Me was made obedient even unto death. The man owes obedience to
Chrift, and the woman to the man, even as a man's whole body owes obedience to the
head. For what is tlie meaning of this metaphor, that the man is the head of the woman,
except that as a man's head is fet over his body, fo the man is fet over the woman } By
means of the head we fee, we hear, we fmell, and we tafte, and from it, as the Philofopher
fays, is derived all feeling and motion, fo that, except under its guidance, the body can do
nothing which is convenient or pleafant to itielf ; and therefore each individual limb obeys
the head, and moves without hcfitation at its nod. So alfo, by means of the man, the
woman fees things celeltial and terrellrial, flie hears whatfoever is to be learnt, flie fmells
whatfoever is delegable, and flie taites all things which it is expedient flie fliould enjoy for
the fuftenance of her bodily ftate ; and thus without regard to the man's guidance the woman
could accomplifli nothing, any more than the body without the head ; and, therefore, as the
Aportle fays in the fame place, the woman veils her head, by which aft llie (liows that llie
has a loftier and nobler head to guide her than her bodily head ; and therefore fhe is afliamed
to fhow her own woman's head, left flie be thought to defire to guide herfelf by its
means. For our firft parents covered their pudenda, led by their impulie, and nor
by the guidance of reafon, they might feem to be provoked to the connubial action. The
laws of England called a married woman not "married," but "covered" to her hufbmd
(femme couverte). IVlodefly leads a woman to cover her head, I know not from what impulfe,
except it be that nature prompts her to fignity the obedience which Hie owes to the man by
means of this fign, as a folemn token ot that fame virtue of obedience ; the fame Apoftle
faying, in the fiime chapter, " Neither doth nature herfelf teach a woman to pray unto
God unveiled." And hence, fince the man is the head of the woman, and for the
body to furpafs the head would be a monfter in nature, it would be no lefs monftrous in

320 0)1 the Law of Nature. [part ii.

the order of the univerfe fur the woman fo to furpafs the man, who is her head, as to be
in no refpetft under his authority, as would be the cafe if flie had the fupreme power in a
llate. This ApofloHc authority we do not bring forward in order to folve by its means,
although it fuffices by itfelf to do fo, our queilion in this refped, which quell:ion has been
completely folved by the Law of Nature, but in order that thofe things which the law of
nature has, by difcourfe of reafon, accompliOied, might be alfo proved by the authority of
the Apoille.

Chap. LVI.

'Die Canon Law, even more ftrongly than the Civil Law, rcjeffs women frori the Throne.

^ fJ^lraUT, as the Apoftle declares his meaning in that chapter by way of .netanhor only,
^1 E?t1\'§ ^""^ ^° ^'^°^ openly but under the (liadow of a fimilitude, it feems time for thefe
^^-^<S3>B things to be more clearly made known to us, and every cloud of darknefs taken
away. We therefore afk the Apoftle to reveal openly, without a proverb, what he thii ks
on this fubjeift. But the Apoftle h.ith himfelf written, not to all people to whom it is gi\ en
to know the myftery of the eternal will in parables, but to a moft learned man i an ed
Timothy the Bifhop, in thefe words : " But I fufter not a woman to teach, nor to e>er(.ife
authority over the man, but to be in fdence." (i Tim. chap, ii.) Now in this palT^tge
he openly makes known the truth which we feek, and ufes no parable ; for if he fuffer i ot
the woman to exercife authority over the man, he afTuredly does not fuffer her to reign o^er
him, which is tlie moft powerful fpecics of authority ; for the genus being forbidden, : 11 i he
fpecies are forbidden likewife ; and, as a negative denies both in general and diitributivefv,
inafmuch as the pride of authority is denied to the woman, the funmrit of regal prawer
is alfo denied to her, kingly rule being the highell fpecies of authority. Why, tnen,
fhould we wifh to hunt out other enae^'tments of the Canons as to whether the wo|nan
can exercife fupreme power over the man, when the higheft teacher of Decreta, all whofe
Epill:les have been abforbed into the ocean of the Canons, has already moft clearly pronouiliced
that the woman cannot reign over the man .'' And left the woman fhould think flie could
evade his fentence, the Apoftle hath fortified it with two of the moft powerful fupports, in
that he has not permitted the woman to teach, but has defired her to be in filence. What
doftor or fchoolmaiT:er teaches as diligently as doth a king, who corredls the unruly with
fitting punifhments ? And who hath lefs to do with lilence than a king, in that the
cries of his lubjefts fcarce allow him to keep filent .'' And hence, fmce the woman cannot
teach, and the Apoftle luffers her not to efcape from fdence, fhe would not be capable
of reigning even if fhe had not been otherwife prohibited. And therefore, as the Civil,
fo alfo the Canon Law fuffers not woman to reign ; but the latter, much more exprefsly

PART II.] 0)1 the Laiv of Nature. 321

and ftrongly than the former, eliminates her from that higheft dignity, the kingly power.
So, then, O Mother and Son, why attempt any longer to harafs the Judge with this fiiit ?
The Law of Nature has by difcourfe of reafon revealed the merits ot each ot your cafes^
The fentences which thofe cafes deferve, not only the Civil, but the Canon Law alio has
pronounced. And the judgments which you will therein hear declared have been formed
by the Divine Law, fince it hath taught that the woman is always fubjcLl to the man,
and therefore debars you, the mother, from the kingdom, and, in thus rejefting her, hath
altogether repelled and excluded you, her fon, from facceeding her. Call to mind, there-
fore, I counfel you, that fentence of St. Augufline, where he ftys, " It is a great difeafe
of the foul, after a full reafon hath been rendered, fo far as is due from one man to another,
always to endeavour to contradict. If we were determined always to give a reply to inch
refpondents, there would be no end of difputing." Thus he writes in the Second B jok De
Civitate Dei. And therefore, fmce againil: everything which you have brought forward in
this controverfy as good a reafon has been given as, in my opinion, is due from one man to
another, I counfel you to ceafe ftriving after hntlier contradirtion, left ye leem to be inteded
with the difeafe referred to, and know not how to find an end of argument, remembering
that verfe of Cato, the moralift, which runs thus : " He who can with realon keep filence is
neareft to God."

Chap. LVIII.

Conclufion of the Pleadings^ and tite Judge's way of prepari)!g himfelf to pronounce


) EARING thefe things, the King's Daughter prefently Ipoke as follows : I do not,
s my uncle fuppoies, confider him to have given a fatisfaftory anfwer by his
^vo V, -~.v -Safons to the points which I ftated ; neverthelefs, when I confider the wifdom
of our Judge, which clearly perceives the merits of all this cafe, fearing left his gravity be
tired out by a further lengthening of the argument, I do not intend to make any further
reply. The Son alfo profelTed the fxme intention ; whereby there was left to the Uncle no
further grounds for rejoinder. The Judge, therefore, fixed another fet time for the jiarties
aforefaid to appear in the fame place and hear judgment and final fentence in the premifes.
On the arrival of the appointed time, the Judge took his feat in the place afligned, an 1 the
parties appeared in perfon before the judgment-feat, and each of them urgently petiaoned
that fentence might be given in his favour. Thereupon the Judge, keeping filence for no
great interval, with downcaft looks, as if collefting all his fpirit within him, at length railed
his eyes by little and little, and thus, in modeft ftyle, began his dilcourle.

1. . T T . .'

I :'<:

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

Chai>. LIX.

The Judge fir ft j I WW s hozv the Woman is Jubordlnated to the Man in the Order of

the Univerje.

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