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: legal practice 119
Maynard, and Hales',
6
who had risen to the top of their profession by
reading through and mastering every surviving Year Book of the medieval
law.
Hale's only published legal work was a preface to Rolle's Abridgement
(1668),
consisting largely in advice to students. The Abridgement was
never intended for publication, as it was just Rolle's 'commonplace', a
notebook of points from his reading, alphabetically arranged by subject
heading. Hale presented it as a model for the student, who might care to
proceed by annotating Rolle, 'it being printed on purpose with a large
margin for the addition of such cases as are here omitted'.
7
Hale practised
what he preached, leaving a monumental compilation, his 'Black Book of
the new law', and also a volume of 'Preparatory collections additional to
my Lord Rolle's'.
8
This suggests the book was used as a companion while
going through the Year Books and Reports.
Hale was prepared to contemplate 'for ordinary study' a 'complete
corpus juris communis ... extracted out of the many books of our English
laws'.
But such a compilation would be 'a work of time', requiring 'many
industrious and judicious hands and heads'.
9
Like every reform Hale
envisaged, it would itself depend upon the 'reason' of the finest pro-
fessional minds. For the present, there were no short cuts to learning;
immersion in the sources, recapitulating Rolle, was the only way to
'artificial' reason, the grasp upon the system that professionals enjoyed.
These educational ideas must have had some connection with a sense of the
law as tradition, a knowledge best exhibited in action, rather than as a
doctrine to be summarised in books. As Coke had much earlier put it, 'by
reasoning and debating of grave learned men the darkness of ignorance is
dispelled, and by the light of legal reason the right is discerned'.
10
'Reason'
was an activity, the thing that lawyers did, as much as a series of principles
that they had memorised. Hale's 'strong' judicial style, his confidence
manipulating law, was surely at least related to this old-fashioned view.
These general remarks are just conjectures, on a subject that eludes
direct research. A question with related implications, important for an
estimate of Hale, is the degree of unity on the Restoration bench. An
'artificial' reason was appropriate to a unified profession, in which a
6
North, Discourse, 19-20.
7
Hargrave, Collectanea juridica, 276-8. A remote ideological descendant, Michael
Oakeshott, supplies an interesting echo: 'the solicitor can use his own (annotated) copy of
Pollock on Partnership or Jarman on Wills more readily than any other. Familiarity is of
the essence of tool-using; and in so far as man is a tool-using animal he is disposed to be
conservative' (Oakeshott, Rationalism in politics and other essays, 1962, p. 179).
8
Lincoln's Inn, Hale MS 121 (191); William Andrews Clark Memorial Library. Uncata-
logued but identifiable as Selden-Hale Additional MS 2.
9
Hargrave, Collectanea juridica, 276.
10
Coke, First institutes, 232b.
120 Law
collective wisdom could fairly be invoked. The evidence is mixed, but
judicial solidarity was certainly a force. The most liberal of the judges, on
almost any measure, was certainly Hale himself; the most authoritarian
was the peppery John Kelyng (Justice of King's Bench 1663; Chief Justice
1665-71), who had spent the best part of two decades in parliamentary
gaols.
11
A symbolic treason case, that of Messenger and others, gives a
flavour of their difference in approach. It concerned an apprentice disturb-
ance with a frightening political tinge.
12
The rioters had sacked some
bawdy houses, a not unusual target for such groups, but 'some of them said
that unless the King would give them liberty of conscience, May Day
should be a bloody Day'.
13
Worst of all, they threw some stones at Sir
Philip Howard, believing him to be the Duke of York. Kelyng was
thoroughly alarmed, and resolved to
make greater examples, that the people may know the law is not wanting so far to
the safety of the king and his people, as to let such outrages go without capital
punishment, which is at this time absolutely necessary because we ourselves have
seen a rebellion raised by gathering people together on fairer pretences than this
was.
14
Hale saw the leading culprits with more sympathetic eyes, as 'but an
unruly company of apprentices', and he was the only judge to oppose their
condemnation for high treason.
15
On another well-known occasion, the trial of Thomas Tonge (for plan-
ning a 'rising', encouraged by government spies), Hale was found in a
minority of two. He wanted to reject some evidence secured in exchange
for a promise of a pardon.
16
His attitudes were creditably constant, for he
made a very similar point, eleven years before, when acting for the defence
of the presbyterian royalist Christopher Love.
17
Hale was evidently rela-
tively relaxed about the monarchy's security needs, and distaste for the
government's tactics was probably connected with his feeling for dissent. It
should be admitted, however, that the common law had a libertarian
streak which needed no religious reinforcement. In Hopkin Huggett's case,
a man was prosecuted for killing a naval officer who had press-ganged his
friend. Eight out of the twelve judges inspiringly declared that
if
a
man be unduly arrested and restrained of his liberty by three men, although he
be quiet himself, yet this is a provocation to all other men of England, not only his
friends but strangers also, for common humanity sake, as my Lord Bridgeman said,
11
DNB.
12
Treated in Tim Harris, London crowds in the reign of Charles
II:
propaganda and politics
from the Restoration until the exclusion crisis, Cambridge 1987, pp.
82-91.
13
Cobbett, State trials, VI, 898.
u
Ibid.,
897.
15
Hale, Historia, I, 134. On the textual history of this passage, see P. R. Glazebrook,
Introduction to his 1981 reprint in the series 'Classical English law texts'.
16
Cobbett, State trials, VI, 227-8.
17
Ibid.,
V, 240-3.
Restoration: legal practice 121
to attempt his rescue, and if
in
such endeavour of rescue they kill any one, this is no
murder but only manslaughter.
18
Inevitably, Kelyng disagreed.
It is no surprise to find that the cavalier Lord Chief Justice was generally
at variance with Hale, but the legal situation had unexpected quirks. Thus
Kelyng took the 'Whiggish' view that Chief Justices held office for their
lives,
while Hale believed they could be sacked at will.
19
On occasion, the
judges united to resist an outsider's demand. At a most important moment,
June 1662, the king had considered suspending the new Uniformity Act.
The judges refused to confirm his right to do so, a refusal they consistently
sustained.
20
They were equally intransigent, in 1668, when asked about the
status of some customs. The parliament had made a two year grant,
expressly for the purpose of paying for the fleet. The government asked the
judges if the grant was 'absolute' (if the disappointed Houses could revoke
it) and if the customs granted could be farmed.
21
The former question they
refused to answer; the latter one they orally denied. Their spokesmen were
Twysden and Kelyng, who were neither of them noticeably hostile to the
King.
They must have been reminded of a similar affair, the 'extra-judicial'
opinions of 1634—35, when the judges agreed that Ship Money was legal.
As Kelyng himself recorded,
our great reason was not that we doubted but that the king had a certain interest in
the duty for two years, but in case we had declared a certain interest, then the king
might have sold the same for what he pleased, and so disappointed the guard of the
seas,
which was the design of the Act. And though we could not suspect the king,
yet if ill use had been made of it, the blame would have been laid on
us.
22
The government repeated its attempt, but the judges sent a note (unsigned),
declining to reply, 'inasmuch as several matters depending on the same
question may judicially come before
us'.
23
Kelyng retained a copy, which
they signed, as insurance against any future trouble.
24
The judges were quite capable of a united front, if their collective
interest was threatened. The ultimate government sanction, dismissal from
the bench, was used only once in the earlier part of the reign. Our
knowledge of the episode is drawn from a single source: the minutes of the
Committee for Foreign Affairs.
25
This body had resolved, on 1 December
18
Kelyng 60.
19
Burnet, Life, 102; Middle Temple, Treby MS report, 564.
20
George
R.
Abernethy Jun., 'Clarendon and the Declaration
of
Indulgence', Journal
of
Ecclesiastical History, 11 (1960), 62.
21
Lincoln's Inn, Miscellaneous 501, pp. 12-13.
*
Ibid.,
12.
*
Ibid.,
13.
24
Ibid.,
13.
25
PRO, S.P. 104/177, fo. 101.
122 Law
1672,
that Hale and his colleague Archer be dismissed.
26
The latter was
removed from his official duties, retaining however his salary and patent,
which could not be removed without a cause.
27
(This incidentally shows
that a patent 'dum se bene gesserit' was not the safeguard which is often
claimed). The dismissal of Hale was delayed until after the end of the
parliamentary session,
28
and in the event the government lost its nerve.
This pattern was repeated, and may suggest faintheartedness in Charles.
In 1676, when Danby's cavaliers were in command, the distinguished
future Whig Sir Robert Atkyns escaped from a sacking through influence at
court.
29
Ellis, the replacement for Archer, was 'looked upon as a dis-
affected person', at least from Danby's Anglican perspective, but Danby
had to be 'unmannerly' before Charles was persuaded to dismiss him.
30
A
couple of years later, when further change was mooted, the government
was fearful of the outcry which was likely to result: 'there being now such
jealousies of an arbitrary government, people would not believe the Lord
Chief Justice [Hale's successor Richard Rainsford, 'who most commonly
slept on the bench'] was laid aside for his incapacity for the place.'
31
In
later years the Crown became much bolder (in the next reign, of course, it
made very sweeping changes) but up to Hale's retirement it was hardly to
be feared.
32
The common law remained, for Charles as for Oliver Cromwell, a way
to claim prerogatives and a badge of legitimate rule. Direct intimidation of
the bench was politically impracticable, and was never at all seriously
attempted. It would be wrong, it follows, to attribute Hale's minority
decisions to nothing but his probity and courage, and to dismiss his
colleagues as supine royal tools. His motives are hard to recover, partly
because the evidence is scanty, but it seems that his boldest behaviour was
26
A
possible reason
for the
sackings
was
concern
for
martial law. The committee had been
told,
a
couple
of
months before, that 'Lord Chief Justice Kelyng always allowed
[the
judges] were
to ask
leave before they arrested
a
soldier' (PRO,
S.P.
104/177, 92v).
His
successor
was
unlikely
to
show
the
same restraint. They discussed
the
matter again
on
December
15
(S.P. 104/177, 120v.),
the
meeting after Archer was dismissed.
His
successor
on
the
bench was William Ellis,
the
author
of
the government's
new
Articles
of
War (S.P.
104/177, 91v.).
27
Gray's Inn
MS
34,
p.
724; Sir
T.
Raymond 217.
28
PRO,
S.P.
104/177,
101.
29
Correspondence
of
Henry Hyde, Earl
of
Clarendon,
ed. S. W.
Singer, 1828,
vol. I, p. 3;
Correspondence
of the
family
of
Hatton,
ed. E. M.
Thompson, Camden Society,
2
vols.,
1878,
vol.
I,
p. 132.
30
Hatton correspondence,
I,
132.
31
Ibid.,
I, 164.
32
This is substantially the conclusion of A. L. Havighurst. 'The judiciary and politics in the
reign of Charles II', Law Quarterly Review, 66 (1950), 62-78, supported by Howard
Nenner, By colour of law: legal culture and constitutional politics in England 1660-89,
Chicago 1977, pp. 76-7. For a highly important case study, which proves that the judges
had minds of their own at the climax of the panic aroused by the Popish plot, see J. P.
Kenyon, 'The acquittal of Sir George Wakeman: 18 July 1679', Historical Journal, 14
(1971),
693-708.
Restoration: legal practice
123
prompted
by a
sympathy
for the
sufferings
of
dissent.
At
times,
as we
shall
see,
he
just applied
the
theory that
he
learned from Selden's works, treating
the
law as an
arbitrary creation
of
customary
and
statutory consent. There
were, however,
at
least some occasions,
all of
them most inadequately
reported, when
he
claimed
for
himself
an
authority that
was
more remi-
niscent
of
Coke.
He
departed from
the
letter
of the law in the
name
of
various charitable presumptions about
the
law's respect
for the
subject's
rights.
The
discussion which follows
is
rather episodic,
but
several consist-
ent themes emerge.
One
way
Hale used
his
influence
was to
dampen down hostility
to
alien
legal ideas.
It is
striking,
in so
orthodox
a
sage
of
common
law,
that
he
spent
ten
years presiding (Michaelmas
1660 to
Easter
1671) in a
newly
founded equitable court.
The
Exchequer
was
mainly concerned with deci-
ding legal questions connected with
the
royal revenue.
The
'equitable side',
by
a
fairly natural development, helped debtors
of the
Crown recover
money without which (they asserted) they would
be
prevented
or
hindered
from paying their debts
to the
king. This service
was
made general,
in 1649,
by accepting bogus claims
to
debtor status.
33
That
the use of
this fiction
survived, when
so
much
was
'restored',
was
surely
due to
Hale.
This tolerance
of
equity
was an
advance
on
Coke.
It was
Hale,
in 1671,
who lifted
a
lingering threat:
the
charge
of
'praemunire' against equitable
courts.
The
essence
of
this crime,
the
diversion
of law
suits abroad,
was
obviously
a
practice
of the
Roman canon
law
(though
it
could
be
applied,
by extension,
to
many other clerical misdeeds).
To
Coke
and
only Coke,
its
meaning
was
considerably wider.
He
quarrelled with Lord Ellesmere,
defensibly enough, when
the
latter
had
tried
to
reverse
a
King's Bench
judgement.
34
His
reaction, less defensibly,
was to
accuse
his foe of
praemu-
nire,
for
'proceeding',
he
later explained,
'by the
rule
of
another law'.
35
In
King
v.
Standish, some fifty-five years later,
the
question
was
revived.
Kelyng recommended that:
'the
opinions
of all the ...
judges
be had in it:
we know what heats there were betwixt Lord Coke
and
Lord Ellesmere,
which
we
ought
to
avoid.'
36
In the
event,
the
parties reappeared
in
front
of
Hale,
who
'held, that this case
was not
within
the
statute
[of
praemunire]
and
so he
said
it
would appear
by the
petition whereon
the
statute
was
33
For this,
see W.
H.
Bryson,
The
equity side
of the
exchequer:
its
jurisdiction, administra-
tion,
procedures
and
records, Cambridge 1975, pp. 13-27.
34
W.
J.
Jones, 'Conflict
or
collaboration? Chancery attitudes
in the
reign
of
Elizabeth',
American Journal of Legal History,
5
(1961), 12-54, and Jones,
The
Elizabethan Court
of
Chancery,
1967,
paint
a
peaceful picture
of the
common law's normal relations with
equity. Coke's conduct
in
1616
is
convincingly defended,
at
least from
a
jurisprudential
standpoint,
in J. H.
Baker,
The
legal profession
and the
common
law,
1986, pp. 205-29.
35
Coke, Third institutes, 122.
36
1
Modern
61.
124 Law
founded.'
37
In this he agreed with Lord Ellesmere, and indeed with
common sense.
38
The matter was instantly settled, but it had genuinely
been in doubt.
In Fisher v. Patten (1671), a slightly later case, a lesser jurisdiction was
attacked. The palatine Duchy of Lancaster, the source of many knotty legal
problems, was founded well within the time of memory. For reasons no
one knew, it had an equitable court.
39
This court was theoretically illegal;
no one suggested it was based on statute, and it was very far from
immemorially old. Hale's argument was typically pragmatic: 'how their
court of equity came to be does not plainly appear ... but [Hale] and
Twysden both [agreed] it might be inconvenient to examine their power
after so long continuance and practice .. .
>4
° The requirements of orderly
justice, demanding respect for long usage, would always trump the legal
rule defining 'immemorial' as 'older than 1189'.
Under Hale's guidance, then, the common law was tolerant of equitable
courts. He acted with a similar restraint towards the church's system of
English canon law. The issues were thoroughly aired in the revealing law
suit of Manby v. Scott (1663). Dame Scott had left her husband and run up
a debt with Manby, a draper, for apparel 'suitable to her station'. Scott had
warned the local tradesmen that he would not pay her debts. Manby
nonetheless sued Scott. Scott had a legal duty to support his errant wife.
41
The disagreement centred on the means by which he was to be compelled
to do so. The traditional authority between a man and wife was the bishop
of the diocese in which the couple lived. He had powers to decree a
separation 'a mensa e thoro',
42
and to establish alimony for the wife's
support. If Manby won his case, then the common law would in effect have
usurped the bishop's role.
43
The events to which the legal case referred had taken place in interreg-
num times. Under the circumstances, in the absence of the bishops and
37
1
Levinz 243.
The
fullest report
is
Middle Temple, Treby
MS
report, 602-3.
38
Louis
A.
Knafla,
Law and
politics
in
Jacobean England:
the
tracts
of
Lord Chancellor
Ellesmere,
p.
324.
39
This must have been quite useful, because
its
jurisdiction was confirmed
in
1654, and Hale
himself had
a
commission
to sit
there while
on
assize
in the
North-west. (Firth, Acts
and
ordinances, III, 916, 921).
40
2
Levinz 24.
See
also Middle Temple, Treby
MS
report,
628.
41
The
courts
of the
interregnum
had
recognised this duty,
in the
case
of
Yeane
v.
Browne,
where
it
was held that 'albeit the wife
be
obstinate and will
not
cohabit with her husband,
yet the
law
will
not
suffer the wife
in
such case
to
perish
for
want
of
maintenance' (Folger,
V.b.6,
70).
42
From
bed and
board.
43
The existence
of
alimony was clearly much resented,
at
least among enemies
of
the church
courts,
because
it
was twice debated
in the
Convention Parliament, where
a
bill said
to be
very 'severe upon
the
women' reached committee (Cobbett, Parliamentary history,
IV,
143,
145).
Restoration: legal practice 125
their courts, the common law adapted to supply the legal void. If Manby v.
Scott had been discussed when it arose, the judges would no doubt have
favoured Manby. Orlando Bridgeman recognised this point, in his elabor-
ate argument for Scott:
necessity made it more excusable in those judges, if, where they found no remedy
they made one; especially when there was not then nor like to be any legal
parliament, consisting of a King and two Houses of parliament to have by an Act
of parliament supplied the defect. It was on the same ground they allowed suits for
legacies at the common law [Eeles v. Lambert]; and that upon an elegit they
adjudged the sheriff might extend ecclesiastical tithes [Harwood v. Paty] which
was contrary to the common law before. But the reason in both cases and so openly
adjudged was because the bishops and ecclesiastical courts were taken away ...
Will you allow these opinions to be law now, because they were the practice
then?
44
Like Matthew Hale on Skinner's case (but not, as we shall see, on other
questions) Bridgeman refused to supplement the remedies of the existing
law. If the law in some way failed, then legislation was the only cure.
Hale just ignored the interregnum judgements, presumably on Justice
Bridgeman's grounds. The arguments with which he was concerned, like
many others mentioned in this book, were appeals to overriding natural
law. Justice Twysden thought that 'this concerns her being. In case of
necessity the law would give me power over another man's goods, as if in a
boat there is great danger of drowning I may justify the throwing them
overboard.'
45
Twysden himself believed that alimony was not a part of
English canon law.
46
Others recognised the remedy's existence, but
doubted (very reasonably) that it was of practical use. The church's
sanction, excommunication, was easy for a husband to ignore. Justice
Tyrrell made the point that 'the process of excommunication is but a civil
and not spiritual obligation and medicinalis not mortalis therefore obedi-
ence to it not always to be presumed and in what case is the wife then .. .'
47
Hale's answer was the one he learned from Selden. The canon law was
part of English law, binding because the common law allowed it.
for her inconveniences the law has appointed the bishops to oversee, and whereas
it is said this is not the common law
I
answer they are [the] jurisdiction appointed
by the common law and though their coercions and proceedings are after another
law yet their derivation as to their use here was from the common law.
48
So far as the law was concerned, an excommunication was a perfectly
adequate threat, which might, at least in theory, result in close confinement
until the man complied: 'And concerning the amplitude of their power
44
Bridgeman, O., 250.
45
Lincoln's Inn, Hill MS 83, 17.
*
Ibid., 18.
47
Ibid., 40.
48
Ibid.,
46.
126 Law
which is not said to be able to administer a medicine for this disease I say as
it is by the brachium seculare
49
the power of it falls as severely on them that
disobey it as the common law can use when men won't pay their debts.'
50
The reality, of course, was that excommunication was an ineffective
power, but this was a point of no interest to the Seldenian judge. The
canon law in England was law because the English had approved it,
whatever its deficiencies in meeting social needs.
Approaching such a judgement after reading Edward Coke, one is struck
by the lack of assertiveness in the Restoration bench. Coke would surely
have discovered some solution that satisfied the wants of the fugitive wife.
His intellectual confidence was perhaps an unrepeatable extreme, which
only Hale, of all these men, was likely to approach. But it was obviously of
some importance that the author of the common law's most influential
books was more of an activist than his successors. Coke gave the lawyers
an intellectual tool, a rhetoric for expanding judicial discretion, that most
of them were disinclined to use. This was nowhere more significant than in
treating of the power to dispense.
Dispensation was the great constitutional issue of the period 1660-88.
The king wished to protect his papist subjects from the effects of various
penal laws. One way in which this end could be achieved was by suspend-
ing all the laws in question, but another, quite possibly legal, was by
piecemeal dispensation (remission of the penalties that parliament
imposed). The scope of the king's power of dispensation was therefore
uniquely politically charged. In Thomas v. Sorrell (1674),
51
the era's best
reported single suit, the question was exhaustively explored. Apart from
the case's political importance, it was a test of attitudes to law, involving,
as a brief account will show, a typically bold claim by Edward Coke.
The traditional distinction between acts that the king could dispense
with and acts that he could not was based on an appeal to natural law: a
malum in se, an intrinsically evil offence, was not susceptible of dispen-
sation; a crime at municipal law (malum prohibitum) could be permitted
by prerogative. Coke's doctrine on the subject, combining ambiguity and
boldness, is to be found in his report on the famous monopolies case. The
case involved a licence for the sole importation of playing cards (an import
forbidden by statute), that was granted, or so Coke inferred, for a cour-
tier's personal gain. To play at cards (the court agreed) was malum
49
'The secular arm', i.e. the common law.
50
Hill MS 83, 46.
51
The published reports give a full picture of this case. The only MS material not better
reported in print is Hale's own judgement, for which see Lincoln's Inn, Miscellaneous MS
555,
fos. 13v.—17 (numbered on verso). The earlier history of dispensation is usefully
summarised in Carolyn A. Edie, 'Tactics and strategies: Parliament's attack on the royal
dispensing power, 1597-1689', American Journal of Legal History, 29 (1985), 197-234.
Restoration: legal practice 127
prohibitum only, an offence with which the Crown was perfectly entitled
to dispense, at least for particular purposes at particular places and times.
52
But 'when the wisdom of Parliament' (a highly significant phrase)
has made an Act to restrain pro bono publico the importation of many foreign
manufactures to the intent that the subjects of the realm might apply themselves to
the making of the said manufactures &c. and thereby maintain themselves and
their families with the labour of their hands; now for a private gain to grant the
sole importation of
them
to one or divers (without any limitation) notwithstanding
the said Act, is a monopoly against the common law and against the end and scope
of the Act
itself;
for this is not to maintain and increase the labours of the poor
cardmakers within the realm, at whose petition the Act was made, but utterly to
take away and destroy their trade and labours, and that without any reason of
necessity, or inconveniency in respect of person place or time, and eo potius,
because it was granted in reversion for years, as hath been said, but only for the
benefit of a private man, his executors and administrators, for his particular
commodity, and in prejudice of the commonwealth.
53
This passage was ambiguous in a way completely typical of Coke. It
appealed to a conception of intention, the 'end and scope of the Act', but
also to the court's beliefs about the public good. For Coke himself there
was no contradiction, as parliament's intentions were informed by the
infinite wisdom of perfected common law. His legacy for other minds was
two distinct ideas, both of them still available in 1674. Some lawyers
thought that royal dispensation should not defeat the purpose of an Act,
54
but others held that Coke proposed a rule: that a law 'pro bono publico'
was indispensable.
55
This gave the court discretion, through judging
'public good', to control the royal power of dispensation.
The legal core of Thomas v. Sorrell is relatively simple to describe
(though numerous side issues were involved). A parliamentary statute of
the reign of Edward VI forbade the sale of wine without a licence, but
James I dispensed with this enactment in a patent to the Vintners Corpor-
ation. The patent allowed corporation members the right to sell wine retail
in every corporate town. Justice Windham summarised the implications:
'by this means all laws might be blowed up; for as the King dispenses with
this law to this corporation, so he may with another to another, and so ad
infinitum; nay, it would be but making a corporation of dissenters, and
then he might dispense with them too.'
56
There were thus two separate
grounds on which the dispensation might be challenged: that the Act itself
52
Coke, Eleventh reports, 88a.
53
Ibid.
54
Ireland, Exact abridgement, 436-7. Davies, Perfect abridgement, 291 is ambiguous on this
point. See also, Folger, V.b.6, fo. 45.
55
Henry Rolle,
Un
Abridgement
des
plusieurs cases
et
resolutions
del
common
ley per
Henry Rolle serjeant
del ley,
1668,
2
vols.
in 1,
title prerogative
le
roy,
p.
179; Hardres
110.
56
1
Freeman 87.
128 Law
was not dispensable; and that dispensation in perpetuity, to a body with a
membership of undetermined size, was really just as good as a repeal.
Both parties were agreed that selling wine was 'naturally' permitted
(though drunkenness resulting was regarded as malum in se). It had been
legal at common law until the statute of King Edward's time. This did not
prove, however, that the Edwardian law could be dispensed with. The
counsel opposed to the patent were keen to invoke Edward Coke. They
maintained, to quote Hale's own judicial notebook, that laws were indis-
pensable if they made for the public good: '11 Reports, monopolies case,
the sole importation void 1. because contrary to the public good .. ,'
57
An
overlapping principle, occasioning much intricate debate, was that the king
could not permit a 'nuisance'. The Act of 1665 forbidding the importation
of Irish cattle had declared the trade a nuisance, thus shielding the statute
from the king's dispensing power. Obstruction of the highway was a
nuisance, which perhaps explained another known exemption: the statu-
tory duty to repair a public bridge was something that no monarch could
dispense with.
58
The most famous of the judgements was that of Hale's friend Vaughan.
Vaughan recognised the essence of the problem, the existence of mala
prohibita with which kings could not dispense: 'with malum prohibitum
by statute indefinitely understood the King may dispense. But I deny the
King can dispense with every malum prohibitum by statute, though prohi-
bited by statute only.'
59
A crime that could not be dispensed with was a
'nuisance', but nuisances were difficult for lawyers to define. Distinctions
based on 'public good' were useless, as every law was for the public good:
'as the laws of nuisances are pro bono publico, so are all generall penal
laws;
and if a nuisance cannot be dispensed with for that reason, it follows,
no penal law, for the same reason, can be dispensed with.'
60
The solution
he adopted, in very much his mentor Selden's spirit, was to treat the
nuisance as the fruit of contract. The nuisance of importing Irish cattle had
been defined by parliamentary statute (Vaughan was in the House of
Commons at the time). A nuisance at the common law was also once a
statutory creation, as common law was nothing but lost statute:
if by accident the records of all acts of parliament now extant, none of which is
older than 9 Henry III (but new lawes were as frequent before as since) should be
destroyed by
fire,
or other casualty, the memorials of proceeding upon them found
by the records in judicial proceeding, would upon like reason be accounted
common law by posterity.
61
57
Lambeth 3478, 51v.
'11
Reports case
de
monopolies
le
sole importation void
1.
quia
contrary
al
bien publique'.
58
1
Plowden 487.
59
Vaughan 333.
m
Vaughan 335.
61
Vaughan 358.