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 129

The logical conclusion of this view, which Vaughan was quite ready to

press,

was the elimination of the notion of malutn in se. The common law

was created by the contracts that the English people made, and its content

was in principle an arbitrary affair. The only true malum in se was an act

which was a crime by definition, like murder or adultery or theft. A murder

was 'unlawful killing'; to legalise a murder was to declare (nonsensically)

that 'unlawful killing is lawful', a patent contradiction that not even a god

could resolve.

A nuisance was an act defined as harmful, and could not be

permitted while the definition stood. This left a simple loophole for the

king: by dispensation with the definition (itself of course a statute) he was

able to dispense with nuisance status. He could thus permit a nuisance at

some given place and time; a permanent nuisance, however, could never be

allowed, as permanent toleration of any harmful thing would defeat the

only purpose of the act which had defined that thing as harmful.

This philosophical investigation went far beyond the situation's needs. It

clearly showed, however, that the Edwardian act could be dispensed with.

There was after all no evidence, from common law or statute, that the

selling of wine was a nuisance, in Vaughan's contractual sense. A more per-

plexing question, for the purposes of Thomas v. Sorrell, was that of surrep-

titious abrogation. The exceptional scope of the patent, (affecting every

vintner, in every corporate town, forever) struck some qualified observers

as amounting to repeal. In answer to this powerful objection, Vaughan

focussed on the legal rights involved. The king was always able to dispense,

however sweepingly he used this power, so long as only he was assignably

damaged. If a subject or subjects enjoyed a determinate right, which royal

dispensation would affect, then the statute could not be dispensed with.

Vaughan's ruthlessly elegant judgement, available in polished form in

print, has attracted more attention than Hale's less flamboyant argument.

Hale's judgement seems pedestrian beside it, but their views on dispen-

sation were in some ways rather close.

Hale probably never believed that

laws 'pro bono publico' had any special status; the first time he appeared in

the reports, in the Easter term of 1642, he had argued that 'where the

subject has an immediate interest in an Act of parliament, there the King

cannot dispense with it... but where the King is entrusted with the manag-

ing of it, and the subject only by way of consequence, there he may.'

Thomas v Sorrell he thought along similar lines. The king was always able

Vaughan 335-6; Compare Hobbes,

cive:

the

Latin version,

ed.

Warrender, Oxford

1985,

p. 210

(xiv, 10); Grotius,

jure belli,

12-13

(I, i, 5-6).

The

structure

of his

argument

greatly clarified

by his own

notes (Lambeth 3478,

186)

and

Lincoln's Inn, Miscellaneous 555,13v.-17, which are summarised

what follows.

See also

Keble 268-71.

March

N.R.

214; Yale

Law

School

MSS G.R.

29/25,

fo. 368 (an

almost identical French

version from

manuscript

Hale's

own

possession).

130 Law

to dispense with statute law, unless one of two courses was adopted.

Prerogative was limited, as the treatise upon the customs had explained, by

the existence of a 'ius privatum'. If the penalty exacted by the statute was

given to the subject not the king, then a kind of ius privatum was created;

the king could not dispense with such a statute without some damage to a

private right. The other possibility, as the affair of Irish cattle showed, lay

in declaring an abuse a nuisance, creating a 'ius publicum' to check the

royal power. A nuisance (he agreed with Vaughan) was simply the fruit of

a contract defining a given phenomenon as harmful.

King Edward's act took neither of these courses, so James had been

entitled to dispense. There remained the awkward question (which

Vaughan had effectively ducked) of limits on the royal patent's scope. A

dispensation was by definition restricted to particular occasions, 'and this',

so Hale believed, 'is the very point resolved in 11 Reports case of monopo-

lies.

A grant to Darcy to have the sole importation of cards without any

limitation or stint is void'.

It followed that 'if this grant to the vintners be

no other than a dispensation grounded and bottomed on the prerogative

the reasons given against it ... are never to be answered'.

The vintners'

patent was in fact a licence. A licence draws authority from parliamentary

power and not from a prerogative inherent in the king. A dispensation

'neither repeals nor suspends the law but by anticipation avoids the

penalty'; a licence can relax the obligation, something that only parliament

can do.

The power to grant a licence is inferred from the statute con-

cerned, and the penal laws relating to the wine trade seemed to envisage

licensing on an extensive scale. The patent to the vintners, so far from

defeating the purpose of the Edwardian act, was actually a product of the

legislative will.

Hale brilliantly escaped from a dilemma that baffled all his colleagues on

the bench. The Crown had always exercised discretion in licensing depart-

ures from statutory law. There was a great temptation to see this as an

extra-legal power, a natural prerogative that courts could not control. The

notion of public good, the nebulous conception drawn from Coke, offered

no certain standard to which they could appeal. For Vaughan and Hale,

reacting to this vagueness, prerogative was limited by certain concrete

rights, by ius privatum (property) and by ius publicum (the nuisance as

contractually defined). For Vaughan, these were the only limitations, and

Lambeth 3478, 179v. In 1667, when writing on the customs, Hale offered the following

summary of this passage: 'in that case, the King hath regularly power by a non obstante,

though not in toto to abrogate it, yet in particular cases of particular quantities, or

particular persons, and for a determinate time, to dispense with this law [forbidding

import of

cards],

and to open the ports, notwithstanding this prohibition, but not with a

general dispensation*. Hargrave, Collection, 93.

Lambeth 3478, 179v. *

Ibid.,

185v.

Restoration: legal practice 131

patents as broad as the vintners' were perfectly permissible concessions.

Hale took the sterner line that dispensation must be strictly measured. His

message to King Charles, in other words, was that individual papists, in

particular conditions, could temporarily be excused the penalties that

statute had imposed. More general relaxation of any penal law was not a

dispensation but a licence, an expression not of royal but of parliamentary

power.

In Thomas v. Sorrell, the law was seen as a Seldenian contract. The

other side to Hale's late jurisprudence, the side that drew on Coke, was to

surface for a final time in Barnardiston v. Soame (1674). This case origi-

nated in a symbolic clash, the Suffolk by-election of 1673.

Sir Samuel

Barnardiston, the head of a family noted for puritan feeling, had stood

against a courtier opponent, the picturesquely named Lord Huntingtower.

The division of opinion was predictable and sharp, at least as viewed by

prejudiced observers. Barnardiston attracted the dissenters and the mob,

while Huntingtower won the support of the mass of the Anglican gentry.

Barnardiston certainly won, but the sheriff (the Soame of the case) refused

to acknowledge the fact. He therefore 'returned' both candidates, and left

it to the Commons to decide. The Commons chose Barnardiston and fined

the meddling Soame. Barnardiston, however, felt personally aggrieved, so

he sued the unfortunate sheriff in King's Bench.

To Barnardiston's supporters, the merits of the case were obvious. The

double return was illegal, as parliament had found. The sheriff had been

fined, but only for breaking the rules; the damage Barnardiston suffered

had never been redressed. A jury then established, on rather slender

grounds, that Soame's error was both conscious and malicious. The

Commons were competent judges of electoral returns; the jury were com-

petent judges of the fact of the sheriff's intent. Barnardiston was therefore

wronged, and the courts were obliged to avenge him. This at least was

Hale's opinion. There was no question, as he stressed, of dictating to the

House: 'C. J. Hale said twice to the bar, take notice we meddle not with

the privilege of Parliament, we only pursue them, they have determined the

right, we give damages for the wrong.'

This view in fact prevailed, by

three votes against one.

Just after Hale retired (succeeded by his colleague Justice Rainsford,

Cobbett, State trials,

VI,

1063-120 includes almost

all the

important material.

It can be

interestingly supplemented

Gray's

Inn MS 34,

771-2,

some 'General Consider-

ations'

Francis North's (British Library, Additional

MS 32, 519, fo.

133-5),

and the

account

Roger North, Examen,

or an

enquiry into

the

credit

and

veracity

of a

pretended complete history, 1740,

pp.

516-26.

Calendar

State Papers Domestic, Charles

II,

1672-73, 597, 608; Ashcraft, Revolution-

ary politics

and

Locke's

two

treatises of government, Princeton 1986,

p. 171.

Gray's

Inn MS 34,

772.

132 Law

who cast the vote for Soame), the matter was argued again, this time by all

the judges in the court of Exchequer Chamber. This stage of the debate was

very much better reported, and the recorded arguments reveal what was

really at stake. On one side were believers in the wisdom of the law, and its

duty to adapt to new conditions.

There was a remedy at hand, the 'action

on the case'. According to Sir Robert Atkyns, 'nothing is more frequent

than actions upon the case, where an injury is done, and damage sus-

tained'.

Inevitably, he referred to Coke, quoting the view that 'no wrong

or injury, either public or private, can be done, but it shall be reformed or

punished in one court or another, by due course of law', as well as the

pithier dictum 'a failure of justice is abhorred in law'.

He needed,

however, to answer an objection: it was not clear that damage was

sustained, except through the loss of the honour attached to a knight of the

shire.

This honour was a recent thing, as antiquarians knew, but Atkyns was

untroubled by the fact. He was aware, and said so, that parliament itself

was not immutable in form. Before de Montfort's time, the Commons left

no trace. Nonetheless,

we must not be governed by historians in matters of law; and therefore, notwith-

standing this observation of Sir Robert Cotton's and Mr Prynne's, we must

presume that the House of Commons, and elections of knights of the shire, are as

ancient as the common law and have been from time immemorial; because we find

no written law that does

first

begin any such institution.

The history the lawyers believed, the history found in Coke, was acknowl-

edged as a kind of legal fiction. They looked, as a profession, to the present

not the past: 'the common law does comply with, and conform to, the

general opinion and genius of the Kingdom, and values, what they gen-

erally esteem and value, and disesteems what they value not.'

The

obvious riposte, at least to modern eyes, is that of Francis North:

the laws are fitted to the genius of the nation; but when that genius changes, the

parliament only is entrusted to judge of it, and by changing the law to make it

suitable to it. But if the judges shall say it is common law, because it suits with the

genius of the nation, they may take upon them to change the whole as well as any

part of it, the consequence whereof may easily be seen; I wish we had not found it

by sad experience.

It might have been expected, from what is known about Hale's juris-

prudence, that he would be found in support of Francis North. Hale's

For

eighteenth-century controversy along similar lines, see David Liebermann,

The

province of legislation determined: legal theory

eighteenth-century Britain, Cambridge

1989, esp. pp. 133-43.

Cobbett, State trials, VI, 1086.

Ibid.,

1077.

Ibid.,

1085.

Ibid.,

1089.

Ibid.,

1095.

Restoration: legal practice 133

writings in general suggested that he had parted company with Coke. It

was certainly desirable that judges be consulted in the making of the law,

but law was essentially contract, and the source of obligation was consent.

If a grievance had no remedy in the existing law, then that was just the

litigant's misfortune. As his work about the House of Lords had put it, 'it is

not relievable at common law because it ought not to be relievable by the

established laws without an act of parliament'.

In Barnardiston v. Soame,

he appeared to relapse from this view, finding a novel remedy where he

discerned a right. The judgement is hard to account for without reference

to some extra-legal motives.

The only judges who agreed with Hale were Sir Robert Atkyns and Sir

William Ellis (the two, by no coincidence, that Danby wished to sack).

Atkyns at least was influenced by his general political outlook; he had

defiantly remarked that 'there is a design to model the parliament to the

humour of the court'.

Hale's views are very much harder to make out.

Judicial activism, to give his style an uncontentious name, was not auto-

matically Whig, and a rhetoric like Coke's, presenting all legal authority as

deriving from the wisdom of the judge, could equally be turned to serve an

absolutist king. But when Hale appeared to strain against the letter of the

law the usual beneficiaries were opponents of the Anglican regime.

A comparable example of his Whiggish tendencies was the Exchequer

case of Wagstaffe and others (1665).

The plaintiffs were all members of a

jury. They had tried and acquitted some Quakers, in the face of Justice

Kelyng's plain instructions, had been fined, and then imprisoned for

non-payment. They appealed to the Exchequer for their fines to be

removed. The crime of which the Quakers were accused was attending a

conventicle, in breach of the previous year's Conventicles Act. They were

said to be notorious as Quakers, and some of them had also carried Bibles,

but the meeting had been silent, so the evidence against them was at best

extremely slight. They could hardly have been guilty of sedition, a fact of

great significance to Hale. We know this from a letter of September 1664,

reporting that 'at Exeter the Quakers were through [Hale's] means found

not guilty, because no sedition appeared under the exercise of religion, and

the Act is not against religious meetings, but seditious conventicles.'

This

incident must have been known to Wagstaffe and his friends, so it was not

surprising that they went to Hale's court, the Exchequer, for

relief.

Hale

Lincoln's Inn, Hargrave 11,

76.

Cobbett, State trials,

VI, 1079.

For

useful manuscript accounts,

see

Lincoln's

Inn,

Miscellaneous

499, 158;

British

Library, Lansdowne 1109,

180-1.

H. P. to

John Knowles,

September 1664. PRO,

S.P.

29/102,

no. 137. A

private letter

intercepted

by the

authorities. Both sender

and

receiver appear

have been Quakers

themselves.

134 Law

wanted to excuse them of their fine, by the common law writ of certioriari,

on the grounds that he could see 'no other course for [them] to be

discharged'.

The judges of his own court were divided, and the matter

went against him when referred to the bench as a whole.

In Historia placitorum coronae, his criminal law textbook, this stance

received an interesting defence. The fining of juries, in civil and criminal

cases,

was seen as a worrying trend. There were precedents, from the early

1660s,

when Hale released such fines. It was a practice, he believed, 'of very

ill consequence, for the privilege of an Englishman is, that his life shall not

be drawn into danger without due presentment or indictment'.

He was

backed, or so he claimed, 'by the advice of most of the judges of

England'.

If so, he was deserted, when it came to Wagstaffe's case, for the

judges held, with 'only one dissenting',

that he was not entitled to

overturn the fine.

Hale's account was a little misleading, for the matter that was actually at

issue was the right of the Exchequer to remit the penalty. Plenty of his

contemporaries were uneasy about fining trial juries, and Kelyng was later

rebuked in parliament for similar behaviour in an unconnected case.

The

right of juries to ignore instructions was established, five years later, by the

influence of Vaughan.

What marked Hale out, as in Barnardiston, was

willingness to innovate when property or liberty was threatened. He would

supply a remedy, enhancing the machinery of law, whenever folk were

manifestly wronged. The law was not a list of remedies, as much in its

practice and history would seem to suggest, but a reasonable system whose

justice would not fail.

A presumption in favour of rights, as Chapter 6 suggested, harmonised

very neatly with Hale's view of the natural state. The contracts which

ended this phase would presumably secure the goods which natural man

enjoyed. It is therefore no surprise to learn, from North and Burnet's Life,

that Hale refused to bastardise the children of a marriage between

Quakers.

He could have learned from Selden that marriage was not

naturally a matter for the Church. Selden had shown, as his avid reader

Milton had expressed it, that 'the clergy insinuated that marriage was not

Hardres

409,

corroborated Lansdowne

1109,

180v.-181.

The

authority

certioriari,

Edith

Henderson, Foundations

English administrative

law:

certioriari

and

manda-

mus

in the

seventeenth century, Cambridge, Mass. 1963, makes

mention

of its use in

the Exchequer.

Hale, Historia, 160-1.

Ibid.,

158-60.

Ibid.,

160.

Grey, Debates,

I, 67.

Thomas Andrew Green, Verdict according to conscience: perspectives on the English trial

jury 1200-1800, Chicago 1985, pp. 200-64; Barbara Shapiro, 'Beyond reasonable doubt*

and 'probable cause , Berkeley 1991, pp. 54-9; Vaughan 135-58.

Burnet, Life,

84.

Restoration: legal practice 135

holy without their benediction'.

Hale seems to have agreed, for he

declared that 'marriage and succession' should be respected as a 'right of

nature'.

But Selden also showed that natural right was shaped through

municipal law. There seemed to be no reason, in a nation such as England,

why forms of legal marriage (like the service in the Book of Common

Prayer) should not be defined by the state. Hale nonetheless preferred to

privilege his own conception of the natural.

The most that can be said, in conclusion to this survey of Hale's judicial

work, is that his sympathy towards dissent was consistent with some other

attitudes. A high view of the judge's role, as charged with maintaining

coherence in the system, could be harnessed for a variety of ends. When

combined with a sense that property was natural, and with a firm presump-

tion that the law would give a remedy for wrongs, it obviously helped

defend a persecuted group. But a theory worth considering is that Hale's

tenderness for nonconformists was neither the cause nor the effect of these

features of his later jurisprudence: that his activism took a Whiggish form

because legal rights and puritan religion were both of them expressions of

God's will. In the first half of this book, the content of Hale's law has been

examined; to go a little deeper, and understand its purpose in his eyes, we

must now turn to his religious life.

John Milton, Complete works, Columbia 1931, vol. VI, p. 72. Selden's shocking views are

set out in De jure naturali, Book V, and Vxor Ebraica (1640).

Burnet, Life, 138.

Part II

RELIGION