Cromartie Alan. Sir Matthew Hale, 1609-1676: Law, Religion and Natural Philosophy (Cambridge Studies in Early Modern British History) (ENG)

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Selden: the appeal to contract 39

law. To Henry Finch, whose thought was close to Coke's, the common law

was 'secondary law of nature'; the English municipal system was reason

received by consent, 'dogma poleos koinon [the common opinion of the

state] generally received by the consent of all'.

Finch seems to have

understood consent as operating in a passive way, as a shared recognition

that given practices were rational. Selden shared his belief that English

custom was ius gentium, but he held that the agreement of the people

creates as much as recognises law.

The best example Selden gave of what his theories meant was his famous

Mare clausum (1635), a work that he first drafted as early as 1619.

supports the King of England's claim to the 'dominium' of the Narrow

Seas.

Such a question, he asserted, falls under the 'permissive' (as opposed

to the 'obligatory') natural law.

'Permissive' natural law is 'positive' or

'civil', arising through acceptance of a shared authority, or else through

'intervenient'

compact or custom. The origin of private property is in just

such an intervenient compact, a tacit agreement to recognise the rights of

occupants. There was no need, however, for the king to occupy the

Narrow Seas; it was enough to demonstrate, with evidence derived from

history, that his neighbours had consented to the ownership he claimed.

An antiquarian of Selden's learning had very little trouble in making a

plausible case.

It is usually believed that Mare clausum was a riposte to Mare liberum, a

work by the Dutch jurist Hugo Grotius (1583-1645). But Selden showed no

enmity for Grotius, and did his best to emphasise their similarities. Grotius

believed that property was based on occupation, and that it was impossible

to occupy the sea. He was prepared, however, to admit that more circums-

cribed inlets could be occupied and owned. He was arguing, as Selden

pointed out, against the pretensions of the Portuguese, who claimed the

ownership of several oceans; the Narrow Seas off England were more like a

creek or a bay.

Selden's true enemy, surprisingly, was a now forgotten

sixteenth-century Spaniard.

Finch, Description, 53. Burgess, Politics, esp. 27-57 explores this possibility. Note,

however, that even in Finch, it is 'consent of all" that makes a law.

There was a wider context to this important shift; Selden was probably aware that

contemporary Thomists were increasingly inclined to classify ius gentium as part of

positive law (Quentin Skinner, The foundations of modern political thought, 2 vols.,

1978,

vol. II, pp. 151-4).

Selden, Opera, II, 1181-2.

John Selden, Mare clausum,

tr.

Marchamont Nedham, 1652, pp.

8, 12.

Latin 'interveniens':

very common word

Selden's works, meaning

come between,

come after,

'happen

emerge*. OED suggests (among other senses) 'that comes

in as

something secondary, incidental

extraneous.'

Selden, Mare clausum, 171—2.

40 Law

This was Vazquez de Menchaco, who took the frightening view that

prescription was irrelevant to princes.

They had inherited no obligations,

in relation to each other and their peoples, from tacit, intervenient agree-

ments. The history of the seas was an irrelevance, and so, by implication,

was the basis of the English constitution, in silent evolution by general

consent. The results would be disastrous, for 'almost all the principal

points of the intervenient law of nature, being established by long consent

of persons using them, do depend upon prescription or ancient custom'.

He must surely have been thinking, in putting down these words, of that

'limited law of nature', the English common law.

The crown of Selden's work upon these issues, De jure naturali et

gentium iuxta disciplinam Ebraeorum (1640) was fairly described by its

title, which he carefully explained, lus naturale and ius gentium were

studied through Jewish traditions which he took to be analogous to

English common law.

The difference between them was purely one of

scope: all universal rules were treated as by definition natural; ius gentium,

by contrast, was the law 'peculiar to certain peoples'.

lus gentium was

created in two ways:

The 'ius gentium' in my title is understood as that law which was common to the

Hebrews and other peoples, whether neighbours or others (not however to all men

or perpetually), whether it originated from a particular command of God, or from

a pact or from an intervenient custom.

It is entirely possible that Selden was at heart a moral sceptic, who

doubted the existence of any natural laws. Such laws, if they existed, were

totally irrelevant to practical debates; as they were universal, they were by

definition already a functioning part of local arrangements. The only

natural law that was necessary to his intellectual structure was the one that

underpinned ius gentium: the principle that contracts should be kept. But a

reader of De jure naturali carries away a different impression. The natural

laws in which the Jews believed were the so-called 'Precepta Noachi-

darum', which were known to the morally healthy of every place and

time.

They were known, Selden reported, by the agency of an 'Intellectus

Agens' (a concept that will be discussed elsewhere), which gave access to

the truths that were normally said to be written in men's hearts. To con-

Vasquez, lllustrium controversiarum, altarumque

usu

frequentium libri

sex,

Frankfurt

1668 (first published 1559), Book

II,

Chapter

ci, 16.

Selden, Mare clausum, 170.

Selden, Opera, I, 71.

Ibid.,

68.

Ibid.,

69.

'Gentium autem

Jus in

titulo accipitur

pro eo

quod sive

singulari Numinis

imperio sive

pacto seu consuetudine interveniente, Ebraeis aliisque gentibus sive vicinis

sive aliis

(nee

interim universis

nee

semper) commune habebatur.'

It is

hard

translate

Selden without doing more than justice

to the

tangle

the original prose.

Selden, Opera,

153-6.

Selden: the appeal to contract 41

ventional observers such as Hale, Selden seemed to have defended the

possibility of moral knowledge.

There was thus an ambiguity deep within Selden's thought. He might be

understood as preaching an untrammelled sovereignty, a right of king and

parliament together to make any agreements they wished. But he had

approached this conclusion by conceiving of such arrangements as 'limited

natural law'. Both he and his disciples continued to be constitutionalist: in

every great political debate, they enquired what the common law was, not

what it ought to be. Though it was made, and could be changed, in an

arbitrary way, it was nonetheless in theory an expression of the principles

of nature. The Almighty had created man to enter into binding obligations,

and the customs and statutes of England were therefore, among other

things, the will of God himself. This view of man as a contract-making

animal, constructing institutions in God's sight, was central to the thought

of Matthew Hale.

Hargrave 485, 51; Nathaniel Culverwell, An elegant and learned discourse of the light of

nature, ed. Robert A. Greene and Hugh MacCallum, Toronto 1971, pp.

68-71.

«**

3 ***

The rights of the Crown

Hale entered Lincoln's Inn on 18 May 1629.

The date is quite important;

less than two months before, Charles had dissolved his parliament and

imprisoned the more militant among its leadership. Hale missed, in other

words, the constitutional troubles of the 1620s, the experience which must

have shaped most of his older friends. Of his previous life we know little,

except that his background was puritan and that he had spent time at

Magdalen Hall. His contemporary biographer Gilbert Burnet (1643-1715)

says that it was an accident which brought him into law. He had business

with a barrister named Glanville, who was astounded by his legal grasp

and persuaded him to train for the profession.

The name deserves a

moment's pause, for John Glanville (1586—1661) was a member of a not

uncommon type, a committed constitutionalist who was later to fight for

the king.

The progression had a logic which this chapter will explore.

Hale's work can best be understood as a synthesis of Selden's thought

with Coke's, but it seems at least worth mentioning his known professional

friends. A surprising early patron was the enigmatic turncoat William Noy

(d.

1634), a 1620s constitutionalist who became Attorney-General during

an early period of King Charles' Personal Rule (1631-34). In the time at

which Hale would have known him, he was a leading government hard-

liner and an ally of Archbishop Laud's. Hale seems to have been insepara-

ble from this pillar of the monarchist reaction, and was known, so Burnet

tells us, as 'Young Noy'.

He was friendly, for all this, with Laud's victim

the puritan martyr William Prynne, the author of Histriomastix (1633), the

famous attack on the stage. Prynne had his ears cut off, by order of the

Council, because a passage of this work had implied that the Queen of

Records of the Honourable Society of Lincoln s Inn: the Black Books, 1898, vol. II, p. 285.

Burnet, Life, 6.

Hale, Works, I, 158.

Burnet, Life, 12. Burnet's story seems to be corroborated by Hale's own occasional

memories of Noy's behaviour (2 Keble 846; Hale, Historia placitorum coronae, ed. Sollom

Emlyn, 2 vols., 1736, vol. II, p. 346). On Noy himself, see W. J. Jones, 'The great Gamaliel

of the law: Mr. Attorney Noye', Huntingdon Library Quarterly, 40 (1977).

The rights of the Crown 43

England was a whore. A letter that Hale wrote, when Prynne was in the

Tower awaiting trial, showed a clear, if guarded, sympathy for his fellow

professional's plight. Prynne was described as 'a very honest man', though

'failing in this particular matter, as it is conceived' - a phrase of such

lawyerly caution as to leave very little doubt of its author's private views.

After the usual seven years, Hale went to the bar in 1636. He got married

in 1640, to a woman called Anne Moore, grand-daughter of Sir Francis

Moore (1558-1621), a noted Jacobean common lawyer.

The marriage was

apparently unlucky (Aubrey alleged that he was a 'great cuckold'

), but it

must have cemented an interesting connection. Her uncle was Geoffrey

Palmer (1598-1670), a constitutionalist and future royalist who became

Attorney-General in Restoration times. Hale shared a house with Palmer in

1642,

and seems to have remained a personal friend.

Such points can,

however, be over-explored; there was another tenant, the flexible Bulstrode

Whitelocke (1605—75), who served all of the republican regimes.

Much more importantly than this, from every point of view, Hale

was soon found out by that great and learned antiquary Mr Selden, who though

much superior to him in years, yet came to have such a liking of him and Mr

Vaughan, who was afterwards Chief Justice of the Common Pleas, that as he

continued in a close friendship with them while he lived, so he left them at his

death two of his four executors.

John Vaughan (1603—74) is another name worth noting; it will recur, in

counterpoint to Hale's, at a couple of interesting moments in the course of

the latter's career. Vaughan was less the consummate professional and

more a politician, less influenced by 'reason' and closer to Selden's near-

positivist side.

But the point, for present purposes, of this catalogue of

forgotten common lawyers, is that Hale won an easy acceptance by the

leading intellectuals of the bar.

Our knowledge of Hale as a lawyer really begins no earlier than some

notes about the Grey of Ruthin case (1640). The suit was of some interest

to anyone of antiquarian tastes (it concerned a peerage heritable through

the female line); it was probably more than coincidence, however, that

Selden was professionally involved.

Hale's first known courtroom argu-

Lambeth Palace (Fairhurst MSS) MS 3516, fo. 203.

Heward, Hale, 33.

Brief lives, 1,278.

Burnet, Life, 22. Hale is said to have consulted Geoffrey Palmer before accepting office on

the Cromwellian bench.

Spalding, Contemporaries of Bulstrode Whitelocke 1605-75, British Academy, Oxford

1990,

p. 108. Hale seldom appears in Whitelocke, Memorials of the English affairs, 1682,

perhaps because of a bitterness about Selden's will (p. 590), so it can be inferred that their

later relations were without warmth.

Burnet, Life, 14.

Tuck, Rights theories, 113.

Lincoln's Inn, Hargrave 5, fo. 234 (reverse vol. fo. 4); Selden, Opera, III, 1713-26.

44 Law

ment, in the Easter term of 1642, was certainly Seldenian in tone, for he

asserted, among other things, that 'the laws of the Jews are not our laws

and so the constitutions of other realms'.

It seems to have been Selden's

influence that shaped his ambiguous conduct in the war.

There was no point, his mentor held, in fighting for the king. The

Commission of Array, the instrument by which Charles raised an army,

lacked any legal force.

But in any case, his tactics were absurd:

the king calling his friends from the parliament, because he had use of them at

Oxford [the royalist headquarters in the war] is as if

man had use of

little piece

of wood, and he runs down into the cellar and takes the spigot and in the mean

time all the beer runs about the house. When his friends are absent the king will

be lost.

Hale was, as we shall see, a royalist, but he never took the plunge and went

to Oxford.

He stayed in the capital city, but did nothing for parliament's

cause, and was professionally employed, for much of the decade which

followed, in defending a succession of the allies of the king. He was

assigned to the defence of a Ship Money judge (1641),

a number of the

bishops (November 1642),

Archbishop Laud himself (1643-44),

the

Irish papist rebel Connor McGuire (1644),

the Duke of Hamilton

(1649),

and the presbyterian royalist Christopher Love (1651).

It need

not be inferred, from this alone, that he approved of all or any of these

people (no Protestant favoured McGuire); there was no right, in treason

trials,

to professional advice, and a counsel's role was as a learned expert,

appointed to argue the prisoner's side of particular disputed legal points. It

seems rather suspicious, however, that he never had a role in prosecution

(the exception which proves this particular rule is the Leveller John Lil-

burne, in a hearing before a committee of the Lords).

Suspicion becomes

certainty in the light of the attitudes set out in three unpublished works.

March N.R. 213.

Tuck, 'The ancient law of freedom: John Selden and the English civil war', in John

Morrill (ed.), Reactions to the English civil war 1642-A9, 1982, pp. 148-54.

Selden, Talk, 66.

For much of the war, the courts were closed, so Hale had nothing to do. London was safe,

which his land in Gloucestershire was not, but he was cut off from his major source of

income. (Public Record Office, S.P. 19/75, p. 363; S.P. 19/76, p. 640).

The autobiography of Sir John Bramston, Camden Society, 1845, p. 78.

Historical manuscripts commission: the manuscripts of the House of Lords, vol. XI (NS),

1962,

pp. 289-91.

William Cobbett,

complete collection of state trials, 1810,

vol. IV, p.

653.

Ibid.,

690, 702.

Ibid.,

1162-65; Hale's

own

notes

for his

argument survive

Lambeth 3479, 164—75.

Cobbett, State trials,

206-46.

John Lilburne, Royal tyranny discovered, 1647, p. 74.

The rights of the Crown 45

The works, in order of their composition, are 'Incepta de juribus

Coronae', 'Preparatory notes touching the rights of the Crown', and finally

'Prerogativa regis'. The Incepta, as the name implies, presents a mass of

relevant material in an inchoate form.

The manuscript volume separately

includes his jottings for the Grey of Ruthin case (1640), and also some

matter connected with his argument for the defence of Laud (1644). The

'Preparatory notes', despite its humble title, is actually a polished piece of

work; it has a connected argument, unfinished but divided into chapters,

which must have been intended as a draft.

A deleted phrase at the very

end refers to 'the late King Charles', but the bulk of the volume was clearly

composed before the regicide. 'Prerogativa regis', which was written after

1661,

can be read in a modern edition, splendidly edited by Mr Yale.

follows the earlier work in its argument's structure, but covers rather less

of the same ground. What matters, for our purposes, is that he was very

consistent, over twenty years of political upheavals, in a particular

approach to the main constitutional questions of his time.

The very idea of a treatise about the royal power was something largely

new, both in conception and in execution. The previous authority was

William Staunford's book An exposition of the king's prerogative collected

out of the great abridgement of Justice Fitzherbert (1567). As the title

indicated, this was a very unambitious work, which listed a number of

practical points but imposed no kind of intellectual order. Staunford

himself was keen to stress, no doubt for basically prudential reasons, that

the account he gave was not exhaustive.

Hale's work was very different.

He organised the law, which had previously been scattered through an

enormous range of difficult sources, and made a tabular analysis. Needless

to say, this would have been anathema to Coke.

Coke's law had an inner coherence which only a professional could hope

to apprehend. He appears to have believed that its inter-connections were

so complicated as to defeat any analysis, at least in a form that could be

grasped by laymen. The law was known by long habituation, and not the

exertions of an untrained mind, so reader's aids like indices were

pointless.

The statutes could be organised, but the chaos of reason was

Lincoln's Inn, Hargrave

Lincoln's Inn, Miscellaneous

48.

D. E. C.

Yale

(ed.)

Hale's prerogatives

of the

king, Selden Society

1975.

Yale's useful

introduction (pp. xxiii-xxvi) gives

summary

of the

evidence

for the

dating

these

works. They

are

briefly

(but

very competently) discussed

Ulrike Krautheim,

Die

Souverdnitdtskonzeption

in den

englischen Verfassungskonflikten

des 17.

Jahrhunderts,

Frankfurt 1977, pp. 420-7.

William Staunford,

exposition

of the

king's prerogative collected

out of the

great

abridgement of Justice

Fitzherbert,

1567, fos. 30, 85.

Coke, First institutes, 395a.

46 Law

sacred. Hale's taxonomic feat, precursor of his staggering achievement,

The analysis of the law (published 1713),

depended on rejection of this

doctrine. His primary distinction (the Analysis was later to declare) was

not between the common law and statute, but between the laws of persons

and of things.

It was a mark of Coke's great influence that this should

seem a rather daring move.

Hale's definition of prerogative was also revolutionary in spirit. A

prerogative, in the Exposition's words, was a 'privilege or pre-eminence

that any person hath before another';

it was a legal right, like the rights,

for example, of peers, that happened to be given to the king. Hale's topic

was rather differently conceived, as 'iura summi imperii', the rights of a

supreme power. A supreme power was to be known from the fact that it

acknowledged no superior.

He admitted, rather strikingly, that there was

a presumption in favour of the king:

the rights and empire of

king over his people are prima facie jura summi imperii

in as much as in ordinary presumption the manner of the acquisition of

kingdom

is by the voluntary translation of

the

same rights from the commonalty unto him or

otherwise by conquest, either of which transfer

pure and absolute empire into the

prince.

These were, however, alienable powers, which could be limited or given

back by subsequent concessions to the subject. The initially absolute

'empire' of the prince was also a right to diminish the rights of the Crown.

One of the rights the prince could give away was that of arbitrary

legislation. Hale managed, all his life, to combine the view that the king

had 'summum imperium' with the view that English laws were contracts

between the people and the Crown. The tension was resolved by under-

standing such agreements as a kind of royal action needing parliament's

consent.

The king had conceded a veto, but he was sovereign in the sense

that he, and he alone, could properly be said to legislate. This theory was

compatible with a perfectly plausible reading of recent 'absolutist' specu-

lation. The Incepta shows a knowledge of Jean Bodin's Republic (first

Latin edition 1586) and Hugo Grotius' De jure belli et pads (1625).

Though both of these writers maintained that a sovereign qua sovereign

could make new laws at will, both also believed that princes were morally

may

relevant

this achievement that

very much briefer analysis attributed

to Noy

is printed

William

Noy, The

grounds

and

maxims

and

also

analysis

of the

English

laws, 1794,

pp.

xxi-vii.

Hale,

The

analysis

of the law,

1713, Preface.

Staunford, Exposition,

Lincoln's Inn, Hargrave

5, 1.

Ibid.,

Hale, Prerogatives, 171.

Hargrave

12-13 (Grotius); ibid.,

3, 10

(Bodin).

The rights of the Crown 47

(though not legally) bound by their ancestors' contractual undertakings.

Neither was very lucid on the subject of a legislative veto which happened

to have been contractually conceded, but the intended meaning of Hale's

authorities is fortunately of no importance here.

It is Grotius, rather than Bodin, who provides the most illuminating

backdrop to Hale's political attitudes in 1642. Grotius resembled Selden in

stressing the variety of possible constitutional arrangements. Sovereignty

could be vested in one person or in many, and be enjoyed indefinitely, or

during a fixed term; it could be shared between a king and a representative

assembly; it could also be received upon conditions, and forfeited when

they were violated. The sovereign was obliged by God to keep his

promises, including his concessions to the subject. This did not mean,

however, that the subject was entitled to resist, on occasions when those

promises were broken.

The merit of this theory was its casuistic force. Hale's English mentor

offered little guidance on the morally preferable standpoint in 1642: the

law was a contract, his Table talk implied, to which the prince and people

were the parties; if they then disagreed about the terms, they had no option

but to fight it out.

In Grotius, by contrast, was the germ of a workable

rule. In every state, he taught, there was summum imperium somewhere.

The subject was bound to his sovereign by conquest or consent, however

many promises the sovereign chose to break. The sovereign's power could

never be resisted, except in the unusual case where the subject's death

would otherwise result.

There were those among the parliament's supporters who probably

expected to be murdered by their king, or at least by the crypto-papists in

his train. More moderate parliamentarians, whose fears were not quite so

inflamed, could draw upon another Grotian point. It was wrong to take up

arms against a sovereign who was 'limited' (a king who had chosen by

contract to set bounds upon his power). It was possible, however, that

sovereignty was 'mixed': that it was placed, by English law, in the Houses

as well as the king. Where sovereignty was mixed, and one of the partners

encroached upon another, the other was permitted to resist.

There was a

On royal promises, as opposed to laws, see Jean Bodin,

sovereignty: four chapters from

the

Six

books

the Commonwealth, ed. and tr. Julian

Franklin, Cambridge 1992,

pp.

35-6;

Grotius, Dejure belli, I, iii, 16. Grotius, Dejure belli, I, iii, 18 appears to rule out

concession of a veto, but the argument he uses could have been shrugged aside by English

readers;

was obviously intended to apply

institutions like the parlements

France.

Hugo Grotius,

jure belli

pads libri tres, Latin

and

English edn,

tr.

Francis

W. Kelsey, Oxford 1925, Book

Chapter iii, 7-24.

Tuck, 'Ancient law', 137-161.

Grotius, Dejure belli,

iv,

Ibid.,

48 Law

very formidable book, the Treatise of monarchy (1643) by Philip Hunton,

which opted for precisely this approach.

From a Grotian perspective, the question was quite simple. If sover-

eignty was vested in the king, whatever limitations he accepted, then

rebellion was almost invariably wrong; if it was vested in the king and

parliament together, and the king had encroached (or appeared to

encroach) on the latter, then the Houses were entitled to resist his

aggression by force. It is likely (though not certain) that Hale accepted this

analysis. He seems to have studied Grotius with some care, and he cited (on

an unrelated matter) the chapter on sovereign power.

He avoided Philip

Hunton's stance, and showed himself hostile (as we shall see) to the

Answer to the nineteen propositions (1642), where the king himself

accepted that his monarchy was mixed.

One point on which Grotius and Selden were agreed was that sover-

eignty could be acquired by conquest.

A sovereign, who acknowledged

no superior, could not be arraigned in a court. Differences between two

such powers could be settled only by appeal to the outcome of a battle,

which might also be seen as the verdict that God had providentially

ordained. It followed, Hale said, that 'conquest ... is the supreme trial

between such as have no subjection one to the other: and the title is

therefore good because [in words attributed to Gentili (1552—1608)] "the

outcome of war condemned the cause of the vanquished and pronounced it

unjust'".

Hale thought that every adult was naturally a sovereign, so

conquest was one model for foundation of the state: 'the original of

government is either ab interno, by consent, or simple agreement, or ab

externo by force and power, though that have something of consent too'.

Hale accepted, all his life, that conquest was a possibility: that legitimate

authority could be founded in military power.

But in practice, he

believed, there was always 'something of consent' involved. A conquest,

when completed, amounted to a pact, depending upon the surrender of

the vanquished: 'an express dedition, or which is equivalent, a tacit by

Grotius

nowhere cited

Hunton's work,

there

is no

conclusive evidence

of a re-

lationship.

Hunton drew

on the

Dutchman,

he had a

strong motive

conceal

the

fact. Grotius believed that conquest

was a

legitimate source

sovereignty

point

discussed below),

but

Hunton denied this.

asserted, against

the

royalist Henry Feme,

that every kind

monarchy

was

founded

consent (Hunton, Treatise

monarchy',

1643,

pp.

20-2).

Lincoln's Inn, Hargrave

12-13.

Lincoln's Inn, Misc.

48, 93.

Grotius,

jure belli,

I, iii, 8.

'Belli exitus damnavit

iniustum pronunciavit victi causam'. Lincoln's Inn, Hargrave

12.

Lincoln's Inn, Misc.

48, 1.

Hale, History

of the

common

law

England,

ed. C. M.

Gray, Chicago 1971,

p. 49.