In every respect except royal finances the contrast Fortescue drew
from his unique ability to set the government of the France of Louis XI
and Commynes alongside England’s is to the disadvantage of the French
polity. The theoretical framework for his argument in the Governance,
the distinction taken explicitly from Aquinas and his followers between
merely ‘regal rule’ (dominium[or jus] tantum regale), and ‘political and
regal rule’, also shapes the two Latin treatises in which he had earlier
tried to analyse the needs of government, the Opusculum de Natura
Legis Naturaeof 1461–3, and his most popular work, De Laudibus
Legum Anglie, written in the years 1468–71 and printed many times
from 1546. In the work on the Law of Nature the doctrines of Aquinas
and Giles of Rome are combined with the lessons of ancient history and
experience to show that English government is both political and royal,
for the king does not make laws or impose subsidies without the con-
sent of the three Estates of the Realm in Parliament, nor can subjects
make laws without the authority of a prince whose dignity descends by
hereditary right. Though the royal state (statum regium) was created by
the law of nature without regard to its justice, a king governing politi-
cally and constrained by the laws of his kingdom to just judgment
should see himself as enjoying no less power and liberty than a king
governing royally, who is a slave to flattery and passion. He must never-
theless be prepared (again following Aquinas) to govern regaliterin
emergencies and to dispense from custom and statute as mercy and
equity require. In the latter part of the De NaturaFortescue proceeds
from the discussion of the origins of royal power to nominally
theoretical but certainly topical chapters on the law of succession to
kingship as a public office, treating as a matter of legal right what the
judges had in practice refused to rule upon when the duke of York
claimed the throne in 1460. (The judges had said that, because the
question ‘touched the King’s high estate and regality’, it was ‘above
their law and passed their learning’.)^13
In Praise of the Laws of Englandfills out the argument of the earlier
work with vivid detail. A king has no right to change the laws of the
body politic or deprive the people ‘of their own substance uninvited or
against their wills... just as the head of the body physical is unable to
change its nerves’. The laws of France are stigmatized as those of a king-
dom ruled entirely regally and based on the civil law of Rome rather
than home-grown customs and statutes, which means that people are
condemned to death on the strength of confessions extracted by torture
300 From Law to Politics: ‘The Modern State’
(^13) Governance of England, 83–7; Opusculum de Natura Legis Naturae et de ejus Censura
in successione regnum suprema, in The works of Sir John Fortescue, collected by Thomas
(Fortescue), Lord Clermont, 2 vols. (London, 1864), i. 59 ff.: p. 80 for statum regium, and
187 ff. for a translation; Watts, Henry VI, 46–50; RPv. 376.