Cromartie Alan. Sir Matthew Hale, 1609-1676: Law, Religion and Natural Philosophy (Cambridge Studies in Early Modern British History) (ENG)
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Restoration: constitutional theory 99
the Dialogue between a philosopher and a student of the common laws of
England, he applied this simple principle to English constitutional ideas.
He decided not to print it (he regarded the end as 'imperfect'), but we know
that he composed it after 1664, and that Hale studied it, in manuscript, at
some time before February of
1673.
1
Our evidence, from a letter of John
Aubrey's, is the tantalising assertion that 'Judge Hales, who is no great
courtier, has read it and much dislikes it, and is his enemy. Judge Vaughan
has read it and much commends it'.
2
Hobbes' principal grievance against the common lawyers, as represented
by Sir Edward Coke, was that they had usurped the sovereign's power. He
gladly agreed, to begin with, that 'nihil quod est rationi contrarium est
licitum; that is to say, nothing is law that is against reason: and that reason
is the life of the law, nay the common law itself is nothing but reason',
3
but he objected to the claim that lawyers possessed the authority by which
this reason was identified:
that the reason which is the life of the law should not be natural but artificial I
cannot conceive. ... I grant you that the knowledge of law is an art, but not that
any art of one man or of many how wise soever they be, or the work of one and
more artificers, how perfect soever it
be,
is law. It
is
not wisdom but authority that
makes a law ... That the law hath been
fined
by grave and learned men, meaning
the professors of
the
law
is
manifestly untrue, for all the laws of England have been
made by the kings of England, consulting with the nobility and commons in
parliament, of which not one in twenty was a learned lawyer.
4
If reason was correctly glossed, however, he was happy with the essence
of Coke's theory: 'he makes the common law and the law of reason to be
all one, as indeed they are, when by it is meant the king's reason'.
5
In
practice, Hobbes seems to have thought, the judges did make laws by
precedent, which was 'tacitly confirmed (because not disapproved) by the
sovereign legislator'.
6
But at all events, there was no call for any skill
unique to professional lawyers. To know the common law, in the world
that Hobbes imagined, was not to have mastered the lawyer's mode of
thought, but to have access to the king's instructions. There was no need
for 'artificial' reason, or any of the rituals of the Inns:
if
I
pretend within a month or two to make myself able to perform the office of a
judge, you are not to think it arrogance; for you are to allow to me, as well as to
other men, my pretence to reason, which is the common law (remember this that I
may need not again to put you in mind, that reason is the common law) and for
1
Its modern editor suggests that it may in fact be finished as it stands (Thomas Hobbes,
A dialogue between a philosopher and a student of the common laws of England, ed.
Joseph Cropsey, Chicago 1971, pp. 2-8).
2
Aubrey's Brief lives, I, 394.
3
Hobbes, Dialogue, 54.
4
Ibid.,
55.
5
Ibid.,
143.
6
Ibid.,
142.
100 Law
statute law, seeing it is printed, and that there be indexes to point me to every
matter contained in them, I think a man may profit in them very much in two
months.
7
The law was 'natural reason', the product of an arbitrary will, deciding
points on equitable grounds. The title of Hobbes' book, A dialogue
between a philosopher and a student of the common laws of England, may
well have been a parody of St German's Dialogue betwixt a doctor of
divinity and a student in the laws of England. Both authors were con-
cerned, from very different motives, with determining relations between
equity and law. St German thought that common law incorporated
equitable thinking, and was therefore immune from correction by the
chancellor's decree. What he did not believe, in contrast to both Hobbes
and Edward Coke, was that equity and law were co-extensive. Hobbes saw
no demarcation line between the other courts and Chancery.
8
He
demanded of the lawyers: 'Now seeing it is granted that equity is the same
thing with the law of reason ... I would fain know to what end there
should be any other court of equity at all, either before the chancellor or
any other person, besides the judges of the civil or common pleas.'
9
The
chancellor's authority was essentially the same as that of the judges, and
his personal jurisdiction was really a court of appeal.
Hobbes presented this curious theory, with typically innocent gall, as an
interpretation of existing common law. Existing laws and liberties were
valid as they stood, but their implementation was subject to the needs of a
Hobbesian state. The king was quite entitled, for example, to promise not
to tax without consent. Hobbes was
satisfied that the kings that grant such liberties are bound to make them good, so
far as it may be done without sin. But if a king find that by such a grant he be
disabled to protect his subjects if
he
maintain his grant, he
sins;
and therefore may,
and ought to take no notice of the said grant: for such grants as by error or false
suggestion are gotten from him are, as the lawyers do confess, void and of no
effect, and ought to be recalled.
10
Magna Carta was certainly valid, and so were all subsequent statutes, but
they were at the mercy of an absolutist judge.
The 'Reflections on Hobbes' Dialogue\ Hale's manuscript response,
survive in what appears to be a fragmentary form.
11
The 'Reflections' were
two brief unfinished essays, which were commentaries, respectively, on the
Dialogue's first chapter, 'Of laws in general and the laws of reason', and
7
Ibid.,
56.
8
Ibid.,
94-5.
9
Ibid.,
94.
10
Ibid.,
63.
11
Printed in Holdsworth, History of English law, 15 vols., 1922-65, vol. V, pp. 500-13. It is
interestingly discussed in Gerald J. Postema, Bentham and the common law tradition,
Oxford 1986, pp. 61-80, and D. E. C. Yale, 'Hale and Hobbes on law, legislation and
the sovereign', Cambridge Law journal, 3 (1972), 121—56.
Restoration: constitutional theory 101
the second, 'Of sovereign power'. From the point of view of content, or at
least the content interesting to Hale,
12
they amount, however, to a full
rebuttal. There is an extant draft,
13
which covers the same ground, so he
probably never intended to tackle the rest of the book.
He started with analysis of 'reason', a word that he interpreted in a
manner familiar from Coke. He detected three separate senses. In 'things
irrational' it meant the 'congruity, connexion and fit dependence of one
thing upon another';
14
there was thus a 'reason' to morality, where he
found 'there is a certain reasonableness and congruity and intrinsic connex-
ion and consequence of one thing from another antecedent to any artificial
system of morals or institution of laws'.
15
Secondly, it meant a faculty, a
capacity common to all, although it could be shaped by a specialised
training: 'Tully that was an excellent orator, and a good moralist, was but
an ordinary statesman and a worse poet'.
16
To be used to best effect, on any
particular subject, it needed to be 'directed or applied and habituated by
use and exercise'.
17
Lastly, it was 'taken complexedly when the reasonable
faculty is in conjunction with the reasonable subject, and habituated to it
by use and exercise, and it is this kind of reason or reason thus taken that
denominates a man a philosopher, a politician, a physician, a lawyer .. ,'
18
As Chapter 1 explained, Coke's theory depends on a pun. The lawyer
recapitulates the 'reason' of the law (he discovers the coherence of the
system as a whole), bringing his thoughts (his reason) in line with the
justification (the reason) of a rule. The legal training that Coke advocated
involved habituation to an esoteric craft. In this picture of an 'artificial
reason', Hale was at one with Coke, both in his stress on the need for
professional training and in his vision of the judge's task. It was of prime
importance 'to keep as near as may be to the certainty of the law, and the
consonance of it to
itself,
that one age and one tribunal may speak the same
things, and carry on the same thread of the law in one uniform rule as near
as is possible.'
19
To decide a particular case, while preserving the system's
coherence, it was necessary to see the point in the context of the whole.
The professional's advantage, as readers of Coke's works were well
aware, extended even to the written law. A statute was not made in
isolation; it responded to a 'mischief, which knowledge of its origins
revealed, and it therefore had a 'reason' for the lawyer to detect. Hobbes
thought that any layman could master statute law, but Hale agreed with
Coke this was untrue:
12
Richard Tuck very plausibly argues (Tuck, Hobbes, Oxford 1989, pp. 33-5) that the
lengthy attack on the heresy law was the author's most pressing concern.
13
Lambeth 3479, 60-6.
u
Holdsworth, History, V, 500.
15
Ibid.,
501.
16
Ibid.,
501.
17
Ibid.,
502.
18
Ibid.,
501.
19
Ibid.,
506.
102 Law
As
to exposition of
Acts
of parliament and written laws certainly he that hath been
educated in the study of the law hath a great advantage over those that have been
otherwise exercised, let them pretend to or
be
masters of
never so
much reason. For
first they have not only the preamble and body and provisoes of the Acts of
parliament before them, but they have a clearer evidence of what the practice or
mischief
was
before ...
20
All this was purest Coke, if rather less extravagantly put. The difference
between them, the fruit of Selden's thought, was in Hale's greater willing-
ness to talk about consent. The law was unpredictable (as Selden had
repeatedly explained), because it was created by agreement:
if any the most refined brain under heaven would go about to enquire by specu-
lation, or by reading of Plato or Aristotle, or by considering the laws of the Jews,
or other nations, to find out how lands descend in England ... he would lose his
labour ... till he acquainted himself with the laws of England, and the reason is
because they are institutions introduced
by
the will and consent of
others
implicitly
by custom and usage or explicitly by written laws or Acts of parliament'.
21
There is no sense in Hale, such as we find in Coke, that artificial reason has
inherent binding power. The laws were well adapted to the nation that
they served, but it was not their virtues that had legislative force.
The second of these essays, concerned with 'sovereign power', applied
John Selden's theory along Hale's usual lines. The 'modifications of
government ... are or may be infinitely various'. It is settled in the first
place by 'the original institution of the government', but 'in ancient
governments ... the original instrument of that institution is hardly to be
found.' In any case 'new occasions, emergencies, accidents and capitu-
lations do necessarily occasion alterations from the first institution'.
22
The contract could be altered in all the usual ways: by conquest, which
'commonly ends in dedition and capitulation between the conqueror and
conquered'; by mutual agreement; and also by 'long custom and usage,
which carries in itself a facile consent of the governors and governed, or is
at least an evidence and interpretation of the original institution of the
nature of the government, or of the initial pact between the governors and
governed.'
23
This was the general rule, at least in 'ancient governments'
'first because the original instrument of that institution is hardly to be
found and secondly because in process of time new occasions, emergencies,
accidents and capitulations do necessarily occasion alterations from the
first institution.'
24
The provisions of the English constitution were known
through statutes and through common law. The king was in principle
sovereign, as Hale's work on the prerogative had stressed, but he was
limited in some respects. He could make war and peace, pardon offenders,
20
Ibid.,
506.
21
Ibid.,
505.
22
Ibid.,
506-7.
"
ibid.,
507.
24
Ibid.,
507.
Restoration: constitutional theory
103
and debase
the
coinage,
and he
enjoyed 'the power
of
making laws'.
25
This
legislative power, though certainly confined
to
royal hands,
was
exercised
in parliament with
the
Houses' 'advice
and
consent'.
26
From these general assumptions, developed
in the
manuscripts discussed
in Chapter
3, the
rest
of his
argument flowed.
He
produced
one
quite
original distinction
(if C. H.
Mcllwain
can be
believed)
27
between
a
coer-
cive,
an
'irritative',
and a
merely 'directive' power.
28
The
king could
be
directed
by the
force
of
English
law, but he was
immune from coercion.
An
example
of the
'irritative' power (from
the
Latin 'irritare':
'to
make void,
render
of no
effect')
29
was the
power
of the
judges
to
nullify
a
grant. More
relevantly here,
he
denounced
a
string
of
Hobbesian opinions, especially
the statement that
'the
King alone
is the
judge
of all
public dangers
and
may appoint such remedies
as he
please'.
The
outburst
is
unparalleled
in
tone
in the
temperate expanses
of
his prose. These 'wild propositions' were
'1.
utterly false.
2.
against
all
natural justice.
3.
pernicious
to the
govern-
ment.
4.
destructive
to the
common good
and
safety
of the
government.
5. Without
any
shadow
of law or
reason
to
support them.'
30
Historical experience refuted
the
Hobbesian claims.
No
government
was
perfect,
and we
must
be
pragmatic
in our
choice:
'in the
estimate
and
measure
of the
goodness
or
convenience
of
government
we are to
weigh
which answer most exigencies
of
human life'.
31
There
had
been
no
incon-
venience
in
some five hundred years from
the
modest limitations Hobbes
deplored.
32
It
would
be
quite absurd,
in
misplaced deference
to a
specu-
lation,
to
overturn
a
system that
had
served
the
kingdom well.
The 'Reflections' were
a
brilliant distillation
of the
legalistic politics
Hale learned from Edward Coke. They drew upon
the
strength
of
Coke's
account,
his
description
of a
learned judge's practice,
and
rejected
its
obvious weakness,
the
suggestion that
the
source
of
obligation
was the
'reason'
he
imputed
to the law.
Hale reaffirmed,
in
principle, that legal
obligation stemmed from popular consent,
but he
also tried
to
guarantee
the lawyer's political role. There
was a
need
for
change,
as
English society
altered through time,
but
legislation
was a
complex task.
His
real concern,
like Coke's,
was
that
the
common lawyers should control
it,
informed,
as
professionals were,
by
accumulated knowledge from their ancient system's
past: 'those amendments
and
supplements that through
the
various experi-
ences
of
wise
and
knowing
men
have been applied
to any law
must needs
be better suited
to the
convenience
of
laws than
the
best invention
of the
25
Ibid., 508.
*
Ibid., 508-9.
27
C. H. Mcllwain, Constitutionalism ancient and modern, Cornell 1940, p. 132.
28
Holdsworth, History,
V,
507-8.
29
OED
on
'irritate'.
30
Holdsworth, History,
V,
509.
31
Ibid., 512.
32
Ibid., 512.
104 Law
most pregnant wits not aided by such a series and tract of experience.'
33
The history of the common law of England, the formal statement of his
general views, was an extended commentary upon this simple thought.
Hale's book was a work of History in the broadest contemporary sense,
a sort of natural history of the law. It was not a simple narrative, although
its central chapters were written in narrative form. It could equally be read
as a varied collection of essays, discussing the sources of law, its history to
the time of Henry VII, and its relationship with other systems. The last two
chapters of the printed version were a couple of case studies of its virtues,
the procedure for trial by jury and the rules for inheriting land. The work
was meant to culminate in a tabular Analysis of law, which follows, in the
manuscript, from the History we know.
34
It circulated in this form till 1713
(the date of composition is unknown, except that it post-dates the Restor-
ation) when the earliest of its printers divided a unified text.
35
'The best
precursor of Maitland', as it has been conventionally known, had wider
theoretical ambitions than such a reputation would suggest.
The History began with a distinction, explaining the phenomenon of an
'unwritten' law. The difference between written and unwritten was based
upon the manner that a law 'obtained its force':
for although (as shall be shewn hereafter), all the laws of this kingdom have some
monuments or memorials thereof in writing, yet all of them have not their original
in writing; for some of those laws have obtained their force by immemorial usage
or custom, and such laws are properly called leges non scriptae, or unwritten laws
or customs.
Those laws ... that I call leges scriptae, or written laws, are such as are usually
called statute laws, or Acts of parliament, which are originally reduced into writing
before they are enacted or received any binding power .. .
36
The talk about 'originals' can easily mislead, for the history of a rule had
no importance. The focus of his interest was on its 'binding power', the
reason it obliges in the present. Much of the lex non scripta had once been
written law, deriving from the statutes of the reigns before Richard I. All
rules that had been binding since 1189 (the 'time of memory' in legal
jargon) were fictionally deemed to have no origin at all, but some, at least,
were made in parliament. These latter principles
are now accounted part of the lex non scripta, being as it were incorporated
thereinto, and become part of the common law; and in truth, such statutes are not
now pleadable as Acts of parliament (because what is before time of memory is
33
Ibid.,
504.
34
On
which see John
W.
Cairns, 'Blackstone,
an
English institutist: legal literature and the
rise
of
the nation state', Oxford Journal of Legal Studies,
4
(1984), esp. pp. 341-3.
35
See for example Cambridge University Library Add. MS 3820.
36
Hale, The history of the common law of England, (ed.) C. M. Gray, Chicago 1971, p. 3.
Restoration: constitutional theory
105
supposed without a beginning,
or at
least such
a
beginning as
the
law takes notice
of)
but
they obtain their strength
by
mere immemorial usage
or
custom.
37
An intermediate case, suggesting what 'incorporation' meant,
was
that
of
the 'old
statutes'. These were
the
Acts
of
parliament from reigns before
Edward
II:
many
of
them were made
but in
affirmance
of
the
common law;
and ... the
rest of
them, that made
a
change
in the
common
law, are yet so
ancient, that they
now
seem
to
have been
as it
were
a
part
of
the common law, especially considering
the
many expositions that have been made
of
them
in the
several successions
of
times,
whereby
as
they became
the
great subject
of
judicial resolutions
and
decisions;
so
those expositions
and
decisions, together also with those
old
statutes themselves,
are as
it
were incorporated into the very common law,
and
become
a
part
of
it.
38
To
be
'incorporated',
it
seems
to be
implied,
a
statute must inform judicial
thinking.
The
process
of
interpreting
a
statute (determining
its
function
in
a system presumed
to be
wise) assimilates
its
working
to the
system
as a
whole. With every 'exposition',
the
process
is
advanced,
for
judgements
are
the usage
of the
courts.
Lex
scripta
is an
order
to the
lawyers; unwritten
law
is
what they
do
unasked.
A judgement
is not
binding
as a law,
except upon
the
litigants
in
question,
but
judgements have
a
certain general role, 'expounding, declar-
ing
and
publishing what
the law of the
kingdom
is'.
39
They were
a
kind
of
'evidence'
40
(in the
verbal sense
of
'making-evident')
of the
system's
par-
ticular rules. Their authority
was a
function
of
the
way
they made sense
of
the past, their 'consonancy
and
congruity with resolutions
and
decisions
of
former times'.
41
Hale
was not a
believer,
in
contrast
to
Hobbes,
in
quasi-
legislative precedent,
in
decisions strictly binding
in
every future case.
As
he once explained
in
court,
'I
always love stare decisis',
a
dictum that
implied
he had a
choice.
42
There were judgements
of
varying kinds. There were various questions,
of course,
in
both custom
and
statute, 'where
the
ancient
and
express laws
of
the
realm give
an
express decision',
a
rule that simply called
to be
applied.
43
At
other times, however, 'deduction
or
illation'
was
involved.
The prime consideration,
in
judgements
of
this type,
was
respect
for the
coherence
of
the law, especially
'the
common
law and
custom
of
the realm,
which
is the
great substratum that
is to be
maintained'.
The
next
was
'authorities
and
decisions
of
former times
in the
same
or the
like cases'.
If
neither yielded guidance, there
was 'the
reason
of the
thing
itself, but
this
was fairly narrowly understood.
44
There were some judicial duties that
were difficult
to
govern
by a
rule, like
'the
exposition
of the
intention
of
37
Ibid., 4.
38
Ibid., 7-8.
39
Ibid., 45. <° Ibid.,
45.
41
Ibid., 45.
42
Treby
MS
Report, Middle Temple,
p.
775.
43
Hale, History, 46.
" Ibid., 46.
106 Law
clauses in deeds, wills, covenants etc.', though 'former resolutions' would
often be a guide.
45
He did not mean to argue, in the spirit of his predecessor
Coke, for the universal competence of judges.
Hale saw the law very much as John Selden had seen it, as a record of
agreements by the English. Rules taken from the civil law (a written legal
system) were nonetheless a part of lex non scripta, because they owed their
binding force to acceptance by 'usage and custom', the immemorial prac-
tice in particular 'cases and courts' (they were, in fact, a kind of local
custom). Those rules which were more formally received, by force of
parliamentary approval, were taken to be part of statute law. The limits of
civilian jurisdiction, like anything else that custom and statute established,
were supervised by the judges of Westminster Hall.
46
The History's great insight, and the heart of its historical account,
concerned assimilation of essentially alien rules. The focus of attention,
from Hale's opening sentences onwards, was with the 'obligation' that
underlay the law:
whenever the laws of England, or the several capita thereof began, or from whence
or whomsoever derived, or what laws of other countries contributed to the matter
of our laws, yet most certainly their obligation arises not from their matter, but
from their admission and reception, and authorisation in this kingdom.
47
He had another theme, to combine with this insistence on reception, in a
subtle reassertion of Coke's vision of the law. The law was constituted by a
legislative power, by arbitrary popular consent. Its character, however,
was that of a reasonable system, adapted by experience to English social
needs.
Surprisingly, perhaps, this process was not just unconscious and
collective, the tacit adaptation of a customary law. This no doubt played a
role,
but so did more deliberate amendment, the work of kings in parlia-
ment, assisted by professional advice. On more than one occasion, as the
law reports record, Hale called for legislation from the bench.
48
The
common law reached the height of its perfection, as the History itself
makes very plain, through parliamentary statutes devised by King
Edward I.
49
Such statutes were 'incorporated' in the common law, for they
came to bind as customs and not as external demands, as part, thanks to
the judges, of a coherent whole.
Hale could have been a little more explicit, but the nature of the process
can be deduced from his account of the role of a common law judge. The
concern of a legal technician, in legislation and interpretation, was that the
45
Ibid., 46.
*
Ibid., 19.
47
Ibid., 43.
48
A. W. B. Simpson,
A
history
of
the common
law of
contract:
the
rise
of
the action
of
assumpsit, Oxford 1975, pp. 602-3; 1 Ventris 412.
49
Hale, History, 101-5.
Restoration: constitutional theory 107
law be certain and consistent. A new or foreign principle, when tacitly or
formally accepted, became the object of his exposition, which tended to
find it a place within the reason of the law. The object of a judgement was
always to preserve the 'great substratum', so judges treated novel rules by
showing how they harmonised with the mass of the existing legal system.
Properly thought out laws, such as those of King Edward I, presented them
with little difficulty, but even the most foolish innovations would come,
eventually, to be absorbed. Every time that a judge, in his judgements,
accepted a given rule as a constraint, he produced an 'evidence' of law (that
is,
a manifestation of the system as a whole) consistent with the principle
in question. At first, the lawyers would be well aware of the new idea as
an alien influence, as something which had altered the 'ancient common
law'.
50
Over centuries, however, the most alien of notions would come to
be part of the practice of the courts. Though arbitrary contract was the
origin of law, professional tradition, the law as only lawyers understood it,
gave it the special character identified by Coke.
The History thus exhibited the system as being both legally rational and
popularly willed. It was binding, to be sure, because it was accepted, but its
peculiar quality was developed by the thinking of the practitioners. The
law was like a ship (an image drawn from Selden), or like a human body;
its identity persisted, though all of its constituents were gradually
replaced.
51
In Hale (though not in Selden) this image could be doubly
understood: there was a continuity of legislative power, but also continuity
in the intellectual methods of the lawyer. The latter point was crucially
important, and explains the oddest feature of his strictly historical thought:
his resolute denial of the Conquest.
The greatest treatment of this theme, where law and history meet, is
J. G. A. Pocock's The ancient constitution and the feudal law. The key to
this brilliant book was its title's seldom-quoted second part: 'a study of
English historical thought in the seventeenth century'. The 'historical
method', on Pocock's view, was to start from social history, 'recon-
structing the institutions of society in the past and using them as a context
in which and by means of which, to interpret the actions, words and
thoughts of the men who lived at that time'.
52
It was here the English
failed. They had no sense, with honourable exceptions, that English social
life had once been feudal, or that the feudal order was an import, unknown
before the year 1066. They did not (perhaps could not) take this step,
because they were imprisoned in the web of a 'common law mind'. They
presumed, as the lawyers had taught them, that the present had developed
50
'Ancient' was just as likely to mean 'ancien' as 'vieux'. The 'ancient common law' or the
'ancient constitution' very often meant no more than 'the law we used to have'.
51
Hale, History, 40.
52
Pocock, Ancient constitution, 1.
108 Law
from a related past. The law's provisions might of course be changed,
might even undergo complete renewal, but the changes detected were
gradual, and the common law as system was immortal. This ruled out
'catastrophic' breaks, and excluded a view of the past as essentially
foreign. To see their history more historically, on Pocock's definition of the
term, they needed to examine it as alien: to treat medieval England as a
'society', a cultural structure with its own dynamic, created by its own
imported laws. A scholar who had made this kind of breakthrough would
see the Norman Conquest as it was.
53
For Pocock, informed by this theory, Hale's views were a marvellous
find. Hale was plainly a man of enormous and critical learning, ideally
equipped for proper historical work. He lacked a political motive for
denying the Normans their due, for he showed that 'ius conquestus' had no
influence on the law. A military victory conferred no lasting rights, 'for
where the title is merely force and power, his title will fail, if the conquered
can with like force or power over-match his .. ,'
54
The legitimate basis of a
conquest was always consent of the conquered: 'though force were perhaps
the occasion of this consent, yet in truth 'tis consent only that is the true
proximate and fixed foundation of the victor's right.'
55
If consent was
made explicit, then its terms were clearly known; if tacit, it was signalled
by an enduring peace, 'a long and quiet tract of peaceable submission'.
56
In
the latter case, 'by a long prescription usage and custom, the laws and
rights of the conquered people were in a manner settled'.
57
If Hale really
believed these assertions (which there is no reason to doubt), then the
Conquest was irrelevant to Stuart political life. His treatment of the
question, to which a lengthy chapter was devoted, reflected a quite
motiveless obsession.
One quibble can be raised. As Hale explained his purpose, he was
anxious 'to wipe off that false imputation on our laws, as if they were the
fruit or effect of a conquest, or carried in them the badge of servitude to the
will of the conqueror, which notion some ignorant and prejudiced persons
have entertained.'
58
The allusion of this passage was not to the supporters
of the king. The notion of a 'badge of servitude' (the use of Norman French
in legal practice) was common in a rather different group. As the radical
John Hare complained, the laws were created by conquest, yet 'we soothe
and applaud ourselves in these gyves
59
and servile robes as patrician
ornaments'.
60
John Milton's The tenure of kings and magistrates (1649)
deplored his enemies' appeal to 'that old entanglement of iniquity, their
53
Ibid.,
64.
54
Hale, History, 51.
55
Ibid., 51.
56
Ibid.,
52.
57
Ibid., 54.
58
Ibid., 48.
59
Shackles.
«
Harleian miscellany,
vol. VI, p. 92.