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trial, could contemplate the merits of fo great a caule as this, or, without hearing the reafons
on both fides, could evolve its hidden truth ? The fmell of his fon's garments deceived the
patriarch Ifaac ; the touch, the largell: of the fenfes, deceived him hkewife ; fight helped ihim
not in his blindnefs, nor did his tafte decide for him that the food, which his younger fon
brought, was not the produce of the elder brother's chafe. Mis hearing was the only i^nk
which deceived not the old man. This fenfe clearly detefled the fon to be a fupplanter,
craftily impofing upon the father. By hearing, as the Apoftle fays, faith, the foundation of
our religion, is learnt. And truly by having heard the profound opinions and arguments,
which in this trial the parties aforefaid have poured forth, we have now drawn out the truth
which the queflion propounded requires for its folution — truth, which, though it was all
along in our power, did not exhibit itfelf openly, until, ftirred up by the force of arguments,
it was rouied as it were out of heavy deep. But, being awakened by their clamour, it now
reveals itfelf naked and fhining to our fight, fo that henceforth we need belfow no further labour
on its inveftigation ; nay, rather, we think that by pronouncing our fentence we ought to




PART 11.1 0?i the Law of Natu7'e. ' 331

promulpate it to all pofterity. Wherefore, fince in this caulc, now fo rhoroiighly fitted, the
parties aforeffid liave by mutual confent concluded their plcaiings and renounced all nglit to
any further allegations, we proceed to render judgment in the fame, as follows.



Chap. LXIX.

The Judgment. '

'N the name of God, Amen. Inafmuch as the King of the Aflyrians, acknow-
^^ lodging no fuperior in things temporal, died without fons, leaving behind him an
only Daughter, and a Brother, and alfo a Grandfon by the daughter, wIk have all
fubmitted themfelves to our will, fentence, and decree in the matter ot the right ot i .icccihon
to his kingdom ; we, having with mature deliberation lillened to their allegations and replies, .
and alfo to the reafons and argmnents which they have framed ; and having, not only from
thefe, but alfo from the things which we have jull: unfolded, moll clearly dilcovered and
arrived at the undoubting convicT;ion that a woman is not capable of holding a kingdom
which is fubjedt to no fuperior, and tliat her fon, therefore, cannot by any Law of Nature,
fucceed in right of his mother to fuch a kingdom, we, I fay, adjudge, arbitrate, and by this
our final fentence decree, that the Brother aforefaid hath the right to the kingdom and in the
kingdom in difpute, by title of fuccellion as heir of the deceafed King his late iirother.
Wherefore we order that he be inverted with and in full and peaceable pofieilion of the king-
dom. And we abfolutely exclude therefrom the Daughter and Grandfon aforefaid, and de-
clare them to be devoid and deftitute of all right and title to the lame.



Ch.ap. LXX.

'The Author Jure remits his Work for the examination of the Supreme Pontiff.

^"^F in the preceding Treatife we have arrived at firm and impregnable conclufions,
we have extinguiflied that fuel of malice which has kindled up to this time fuch
unceafing wars among kings, I mean that inveterate error by which women, and
their heirs through them, have been thought able to fucceed to the throne in fovereign
kingdoms. This was that crafty ferpent, nurtured on the poifon of ambition, vhich,
infinuatincT itfelf into the minds of princes, poifoned them fo with the malice of its virus,
that there was fcarce a king who, inflamed by the angry tumour growing therefrom,
did not betake himfelf to the clafh of arms, by which lie thought to appeafe the fever
of that venom. Peace thus was everywhere fo diflurbed among men, and the ftrength
of the Church {o weakened, that there could fcarce be found a prince who was fo free from




332 0)1 the Law oj Nature. Fpart ii.

thefe great perils of war that he could give hiinfelf to her defence ; and, therefore, the hand
of her enemies has grown mighty againil: her, fo thr.t, haralTcd not only by the blafphemies
and infults of barbarians and infidels, but alfo by wrongs inflifted on her by her own fons,
fhe hath not found one comforter among all fhe loves. And if the iniquity of the aforeGiid
error contmue longer to prevail, without doubt tlic Church, having fcarcely any prince to
defend her, will have to fufter evils llill greater than thefe. Do thou, therefore, my little
Book, fet forth, and feek with all fpeed the City (of Rome), and there caft thyfclf at the
feet of the Vicar oi- Chrift, the bridegroom of the Cluirch, and moft humbly pray him that
he condefcend to look upon thee with the eyes of his piety ; and if he fh.ill find thee to be
right andjull, that he condefcend to impart it to all the fons of the Church ; and if he fliall
find in thee, which God forbid, anything that departs from the right way, th; t by correcflion
of his kindnefs he annul it, fince fuch falling away hath not been of malice, but only from
the clouds ot ignorance. For to him, as is related in the former IVcatile, Mofcs refers every
difficult and doubtful judgment that can arife in the courts of men, defiring that what.be 'er
he fhall have judged or taught according to the law of God fhould be the judgment of all
the fons of men, who fliould follow his fentence and not deviate to the right hand or ro .he
left. (Deut. xvii.)

Chap. LXXI.

;
Ciijlom cannot confer upon a U^oman tlie right of inheritance in a Kingdom -which

knows nofuperior.

[OR can it move the Holinefs of the molT: blelTed Father that he hath fomenmes
leen women, and even men under colour of a title derived f'rom women, make
their way to the royal throne ; for if the things here handled be fVee fl'om
error, — though a woman fhall have prefumed to aft the prince, adorned with jthe
diadem and all the other enfigns of royalty, and have lived as king in a kingLiom
acknowledging no luperior, — yet doth flie not poficls the office of king, nor is inverted, by
fuch means with the kingdom. Since, therefore, the female fex is not capable of holding it,
the conclufion has, in this Treatife, been firmly efT;abliflied, that neither can a man hold lach
a realm through a woman's title. And thus the I'entence here pronounced, if it be right,
allows none to doubt that woman and man alike, if they ulurp a kingdom in fucli tafhion, aft
unjuftly, and therefore commit fin. What right, then, in fuch a cafe can be conferreil on man or
woman by ufe or long cultom, which has grown up on nothing but a heap of fii s ? Can it
tranfmute a fin into a virtue, or change an unlawful thing into a lawful? A crnne repeated is
a deeper offence than when committed at the firt^ ; ufe, therefore, aggravates guilt, but
cannot do away with fin. Wherefore it is only the bond fide pofTefibr who acquires a right
by prefcription ; the rule of law declaring that the nuilu fide polTclTbr hath no prelcription




PART II.] On the Law of Nature. 333

by any length of time. And another rule fays, " That which fLibfiits not of right from
the beginning is not confirmed by lapfe of time;" and, therefore, cuftom doth not transform
anytliing into hiw, unlefs it hath been blefTed with a righteous origin. And hath it not in this
Treatife been proved that the fupreme rule of women over men is not of the nature of being,
and fo not of the nature of tilings ? How, therefore, can that grow into ufe which
abfolutely doth not exill: ? Could a plebeian, by transforming himfelf in ll:age-plays into th;
character of a king, even though his anceftors from the remotefl: times had done the lame,
thereby acquire any prefcriptive right to the regal dignity.'' In very truth, the fupreme
command of a woman over a man is like a charader in a play, which has only an apparent
and not a real exiflence. Among the ancients idolatry was cultivated with very "amous
rites, and cuftom fo raifed it into a law among them that the rulers of the world dcilroyed
thofe who defpifed it, not only as tranfgrelTors of the law, but alfo as blafphemers ; yet v.'hat
could be more wicked and more remote from law than that crime .'' The fandity, diligence,
and teaching of the Church have now baniflied idolatry from almoft all quarters of the world.
Would that fhe had alfo eliminated from all licr boundaries the mifchief of the error which is
here expofed ! Idolatry haraffed the Church from without with foreign war. This error is
wafting her within, and weakens her by intcltine war, (^ as no other fin that hath ever
yet broken out among Chrifl;ians hath opprefied her. Wherefore as the iniquity of it hath
done the greateft hurt to the Church, fo there is no doubt that the riddance of it would
confer upon her the greateil relief. Come, then, Holy Father, apply a remedy to this
difeafe of the Church, that, as your Holinefs hath fucceeded in authority and honour "o your
holy predeceflbrs who vanquifhed idolatry, fo by cailing out this kind of demon you may
fucceed them, alfo, in a meritorious life and in perpetual praife ; as a good omen whereof
your Bleflednefs will reckon it to be refcrved for yourfell to deal with this malady, — a poifon
the like of which none of your predecelfors in the Church to this time, lo lar as we read,
hath ever extinguifhed. And thereby your Holineis, who hath, as it were, come late to the
drefiing of the Lord's vineyard, will earn as great reward as he hath earned who was hired
at daybreak to labour therein.



THE END.



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REMARKS UPON THE PRECEDING TREATISE,

WITH

TABLE OF QUOTATIONS AND NOTES,
BY THE TRANSLATOR..



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REMARKS.



^^—ST^HE. queftion which fortefcue difcullcs in the foregoing treatife is (as ftated
i'touSsJ^ in the opening paragraph ot Part I.) that of the right of fuccellic i to a
'■S^^^:^< fovereign kingdom (without feudal fuperior), when the king has died vvith-
fey^/ (^^"tI' ^"-'^ male iflue, leaving a daughter, a grandfon by the daughter, and a
"^^§i^^k^^S^^ l^i'other. His method of proceeding is to afccrtain by what law fuch a
queltion is to be decided, which he does in Part I., while in Part II. he profenes to apply the law
fo fixed upon, that is to fay the Law of Nature, to the claims of the feveral candidates. The
decifion is given againft the daughter and her Ion, and in favour of the brother, contrary to
the rule of fuccellion which has long prevailed in this country, but in favoiu- of the title ot the
Houfe of Lancafter, and of Henry VI., in whofe interef]: the treatife was compofed. Theie is
indeed no allufion to the cafe ot the Engliili iuccellion ; but the writer's intention is evident,
and is fully admitted in his Declaracion made by John Fortcjcue Knight upon certayn "d.ry lings
fent out of Scotteland ayenjl the Kinges title of tJ:e Roialme of England, in which he calls it " a
booke which I wrote in Latin to enforce myne intent," namely, " that no woman ought
fovranly or fupremely to reynge upon man." The argument, however, goes beyond the
exclufion of women, and includes their male ifllie, for the purpofe of fhutting out the Moule
of York, which derived by a double female defcent from Lionel Duke of Clarence, third ion
of Edward III., whereas Henry Bolingbroke " from John of Gaunt did bring his pedigree,
being but fourth of that heroic line." This is a plea of which no trace is to be
found in the claim put forward by Bolingbroke before the Lrtates of Parliament in
Weflminfter Hall, a claim defcribed by Sir James Mackintolh, as " fingularly framed
to include a falfe ftatement of hereditary right, without furrendering the mifgovernme it,
which was the true and Ible foundation of the right of parliament," and which ran as
follows: — "In the Name of the Fader, Soiuie, and Holy Ghoft, I, Plenry of Lancafl -e,
chalenge this Rewme of Ynglonde, and the Croune, with all the membres and the appur-
tenances, als I that am defccndit be ryght lyne of the Blode comyng fro the gude Lord
King Henry therde, and thorgh that Ryght that God of his grace hath fent me, witli help ot
my kyn and of my friendes to recover it ; the which Rewme was in ]ioint to be ondone tor



': ■ :,■■■■ \]






J"
338* ' De Natiu'd Liegis Naturcc.

defaut of governance^ and undoing of the gude Lawes." (I lollnfhed, and fee Rapin, vol. i.
Book X. ed. 1732.) Henry IV.'s fuhfcquent legiflafion for the fetMing of the fuccelfion
exhibits very clearly his perplexity upon this awkward fubjei-'l: of inheritance through females,
as will he feen from Lingard's account, who, after defcribing an Ac't of I'.irhanient veiling the
fuccelTion in the king's four fons and their heirs, continues thus : — " Befides thefe fons he had
two daughters by the fame mother; but they were purpofely paffed by, perhaps that he
might not afford an additional argument in favour of the rightful heir, the Karl o^ March,
who claimed by the female line. It was, however, plain that, according to the late fettle-
ment, the daughters of his fons might inherit ; and therefore, to do away all ambiguity
two years later a new aft was paffed, limiting the fucceffion to his fons and their iffue male,
and by this provifion perpetually excluding the females. But then it was ifked, on what
ground did he claim the crown of France .'' If females could not fucceed, neither he nor his
predeceffors had any pretenfions, fince their right could defcend to them only through a
female, Ilabella, the mother of Edward III. This objeilion difconcerted the king, a id
betore the end of the feffion the laft a6t was repealed." {\ o\. iii. chap. v. p. 453, ed. 1 841 .)
This famous French claim which the Houfe of Lancafter derived from the Plantagenet: , w .is
indeed a ftrong cafe of that " fomes malicia:," that "error inveteratus," which Fortefc le
denounces in this treatife as the caufe of " tot guerrarum difcrimina, tot bella civilia, qu e,
nedum in nobiliffmiis P'rancia.' et Anglia; regnis, led in quam plurimis aliis regioribis,
invaluere" (Part i. i.) ; but its inclufion within the fcope of his condemnation is fufficiently
explained when we remember that he wrote at a tune when his fovereign and his royal pup 1,
exiles from their own kingdom, may be fuppoied to have abandoned all pretenlions to t le
throne of that country which then afforded them a refuge. Not many years bifoie,
however, things had been very different, and the tutor of the young king Henry VI.,
Bifhop Beckington of Wells, had written a treatife againil: the Salic Law, and in defencj: of
the Englifli claim to the French crown. (Harleian MSS., Britifli Mufeum.) Not that the
exclufion of women (the rejeftion of the " Titulus Fili;t' Kegis " in this treati(e) was any
bar to that claim ; for, but for the o]ieration of the Salic Law in that refpeft, both Edward
of England and Philip of V^alois would have been excluded by the daughters of the three
laft kings of France, but that " the query was, whether the Salic Law was limited to the
perfons of the daughters, to exclude them from the lucceilion, or whether it extended to all
their poilerity." (Rapiii's Differtation on the Salic Law in the Hillory, vol. i. book x.
Mackintofli, vol. i. p. 285, ed. 1853.) To elLiblifli this latter doftrine, not upon the
narrow and fliit'ting bafis of Municipal Law, but upon the broad and iolid found itu.;) of the
Law of Nature, is the bold but futile endeavour of the great lawyer in the work now
printed. To comprehend the method of proceeding, ib alien from the modern mind, by
which this conclufion is reached; to appreciate the quaint reafoning, curioufly compounded
of manly intelltft and childlike fimplicity, the habit of farfetched deduC-tion tVom a text or



Ron arks.



339^



a word ot the Bible, the inordinate reverence for the great authorities of Philofophy and the
Church, the svallc of thought produced by that kind of fuperftition ; and, at the fame time,
the learning, ingenuity, and elevation of fentiment which mark our author, t/ie reader muft
confult the trcatife itfelf. But it may five him trouble to be furniflied with fotiie clue to
the mazes of an involved argument, which is accordingly fupplied in the following outline of
its courfe.

The Argument. i

Part I.







HE firft thing is to determine the Law by which the queftion at ilTue is to be
^ folved. It is not the Civil Law, becaufe the fuccefllon difputed is that of i king-
dom " not iubjeft to Ca'far's fway " (c. 3.) It is not the Canon Law, oecaufe
" the Church looks to lieavenly things." It is the Law of Nature (c. 4), by which alone the
human race was governed until the Law of Mofes was given, Divine in its origin, the fource
of the authority of all human laws, whether "cuftoms," or '' ftatutes." Under the Law of
Nature, the firft kings appear (c. 6), of whom Melchifedech is a bright example. Whether
there were kings before the Flood, or whether Belus king of Babylon was the firft, may be
doubted ; but it is certain that the Law of Nature created, and ftill regulates the office of king.
By this law alone, therefore, can tiiis queftion of fucccffion be determined (c. 10). l\vo ob-
jetlions are made: i. The chofen people finned in "alking them a king." Can the law which
was the caufe of kings, and therefore of fin, be good ? 1. The Jus Regis., as declared by tlie
prophet Samuel, was a bad law. " Doth there then arife between thefe two laws implacable
war ?" (c. \'i). Anf-wer. — i. The people of Ifrael had a king already, God Himfelf Their
fin lay in afking for a man, "like all the nations," not in defiring monarchy itfelf (c. 15).
1. The king promifed to Ifrael by the Lord and Samuel, was a king of a certain kind. (" He
fhall take your fons and fet them in his chariots, &c."). Befides the "politick," and the
"royal" form of government, {fee St. Thomas, De Regimiue Principuni), there is a third,
the "politick and royal." Of this kind the kingdom of F'ngland is an example. For-there
"the kings make not laws, nor impofe fubfidics on their fubjeds, v^ithout the confent of the
Three Eftates of the realm." (c. 16). So Rome was "royal" under the kings, "politick"
under the fenate and confuls, " politick and royal" under the emperors. The goverrment
of Ifrael was " politick and royal " uniler the judges, " royal" only, " a mere monai chy "
under the king who was granted to their prayer. But St. Thomas fays that the mor- any
form of government rcfembles the Divine, the better it is ; and this muft be ab blute
monarchy. Did God then give a good law to a finful and rebellious people ^ On the other
hand, was He the author of a bad law? " Lo, what ftraits on every fide!" (c. 17).
Further comparifon between the Law of Nature and the Law of the King, which leems to



' ..■■■'.■ >:•



C. 1 i.



34°* Dc Natitrd Legis Naturcc.

" put the Law of Nature in danger, inafmuch as it aflerts for the "Jus Re^is the foremofl:
place among all laws." (c. 18-29). Monarchy is a produft of Nature, there being always,
as St. Thomas fays, fomcthing naturaliter regulativa. True, the Civil Law fays that king-
doms were founded by the Law of Nations ; but the Jus Gentium is nothing but " the laws
of Nature's code which all nations obferve " (c. 19). h'or indance, buyings, fellings, and the
rights of property, were invented by the Law of Nature," adopted and ratified by the Law
of Nations. When the Lord called Adam's bread, which he fliould eat in the fweat of his
brow, his own, could not Adam fell it.'' Were not the farftlings of Abel's flock his own ?
(c. 20). The Law of Nature, in faft, is original and eternal, the fame in the flate of inno-
cence as after the Fall, only the flate of man was changed by fm. " Jt is the fame fun which
hardens mud into brick, and melts ice into liquid, (Src." — " Ccafe then, oh! Law of Kings
to ftrive with the Law of Nature " (c. 10). Again, the Law of the King (abfiilute monarchy),
is not to be thought fuperior to the law of a king governing regallter et pditicc (limited
monarchy), as though it were more like the government of God (c. 22). St. Tho na: in-
deed prefers the political government to the royal. But kings of both forts are equal, and
equally like to God. (Advice is here given to a king reigning ;v^'^i;//Vtv, to reign alio ''oh'ici',
— to " manage the conmionwealth of the kingdom by the advice of many ;" and to a 1 ing
reigning ^o///zVi, to govern )-ega!iter, when occailon, fuch as rebellion, invafion, &c., 1 :qi ires
it. — c. 23, 24, 25). The inability to change the laws without confent of leading mer oi the
kingdom, does not make the politick regime inferior to the royal. St. Thomas, after con-
fidering democracy, ariil:ocracy, and oligarchy, prefers monarchy, provided it decline not nto
tyranny; that is, he prefers limited monarchy, or the government of a king ruling />(?// /Ve.
Nor is it any hinderance to kingly freedom not to be able to do wrong, any more ihan to
that pf the angels not to have the power of finning (c. 26). The Jus Regis is good in itfelf,
but may be abuled by kings offending againit the Law of Nature (as Ahab and David)J who
are fure to be puniflied by God. In fuch cafes, though ilill called Law, it is fo called only
in the fenfc in which the Apoil:le fpeaks of the "law of lin." Upon the whole, as the re-
fult of the comparifon between the Law of Nature and the Jus Regis, it appears that the
former is fupreme (c. 29).

Jus and Lex are now diftinguifhed (c. 30). The authority of the Law of Nature has
been afcertained, but not hs/peeies. JVhat Law of Nature is it, which is to be judge of this
controverfy ? Is it Senfuality ? Is it Natural Reafon ? &c. Thefe are rejected, like the
fons of Jeffe, and the Truth of Juflice is chofen, like David, as the law which is to govern
(c. 31). The origin of the Law of Nature is now to be afcertained (c. 23)- '■^^ ^'-"^ Creation,
when God faid, " Let us make man, and let him have dominion," He created at once the man
and the office, prelalu-M et prelaturani, and the man perfedl for the office. But wiihout juftice,
which is a conjians et perpetua voluntas jus J'uum u>iicuique trihuens, the world could not be
governed. Jullice, therefore, was ordained for man, along with the preLitiira mundi. (c. 35).



Re/na?'ks. 341*

Buty/wis infeparable from juftice, flowing from it as heat from fire, as the llream from its
fource (c. 36) ; nay, we may venture to fay, begotten of it by a JJiviiie generation, as the
Son from the Father (c. 37). So Man and the Law of Nature {Jus Nature) are coeval,
created in one and the fame inilant of time (c. 2'^). The efi-'ert of the luill upon the re-
lations between Man and Juftice is then explained (c. 39-41), and why Juftice is called Jus
Divinuni (c. 42). A difficulty is now ftarted. If there be fuch a Divine law as this, wherein
confifts " the plenary power and virtue" of all other laws, what is the ufe of the latter ? Why
do the judges of France " confunie fo many years ot their pilgrimage" in ftudying the laws
of that kingdom ? Why do the ftudents of law in England expend "twenty years lucubra-
tions," and fome " two tlioufand crowns," to obtain the loweft degree in Law ? The anfwer
is, that the Divine Law is to all human laws as the fun is to the moon and planets, ;'nd that
the knowledge of the central luminary does not relieve men from the neceftity of ludyinti;
the bodies which receive their light therefrom (c. 43).

The queftion is now afked. What are the refpeLT:ive ends of the Divine Law and of the
Law of Nature ? The end and objeerl of the Law ot Nature is virtue, to be attained upon
earth. The end of the Divine Law is beatitude, which confifts in the Divine Vifion, to be
attained only in heaven (c. 44). But "the Law which is ordained for the farther end
governs the law which dirtc*l:s men to the firft end," and in this fenle the L,aw of Nature,
although Divine and daughter of the Divine Law, is fubordinate to the latter. 'J'hus, " the
fum and fubftance of the Law of Nature is thoroughly laid open " (c. 46.)



Part IL

I) JUDGE is required to decide between the three claimants of the kingdom.
Juftice is conftituted judge, and the three parties appear before her.

The Ki>!g's Daughter. — It is written in the Book of Numbers, " When a man
dies without leaving a fon, the inheritance fhall go to the daughter." I claim the inheritance
accordingly (c. 1).

The King's Grand/on. — Public office differs from jirivate property. A woman is .lot
capable of filling even the offices of conftable or marffial — how much lefs that of king (c. 3).



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