Review of De Laudibus Legum Angliae, by Sir John Fortescue, ed. S. B. Chrimes, Columbia Law Review, Vol. 43, No. 6 (September 1943). Reprinted in What Is Political Philosophy?
The setting stands in a somewhat melancholy contrast with the content: the conversation in which the English institutions are so highly praised, takes place while the two participants are in exile owing to the civil war then raging in England. The young prince who is entirely given to martial exercises, has to be convinced by the aged chancellor that he ought to make himself reasonably familiar with the laws. He seems to have a prejudice in favor of the civil laws, a prejudice presumably caused by their absolutist implications which are naturally pleasing to him as a prince. And he certainly has a prejudice against comparisons which, he feels, are odious as such. He wonders whether he should study the laws of England or the civil laws: after all, “the people should not be governed but by the best laws,” and the civil laws are more renowned than any others. It is in this context, and with a view to the young prince, that the chancellor sets forth his comparison of English and continental institutions, a comparison which is made ad hominem, not to say in usum Delphini, and is therefore not altogether free from deliberate inaccuracies favorable to the English institutions (see the editor’s remarks on pp. 177, 206, ci, and ciii). It is interesting to note that the chancellor does not retort at once-as the editor (p. xcvi) seems to believe-that the laws of England are superior to the civil laws. Instead, he shows first that the king of England has no right to change the laws of his realm (sc. even if they are defective), because his power is “regal and political” and not simply regal, or, in other words, because in England the legislator is neither the king alone (dominium regale) nor the citizens alone (dominium politicum), but the (hereditary) king and Parliament jointly (see the editor’s notes to cc. 10 and 11).