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Common Judicial Office, Sovereignty, and the Church of in England, 1660-1688 David Kearns Faculty of Arts and Social Sciences The University of Sydney A thesis submitted to fulfil requirements for the degree of Doctor of Philosophy 2019

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This is to certify that to the best of my knowledge, the content of this thesis is my own work. This thesis has not been submitted for any degree or other purposes.

I certify that the intellectual content of this thesis is the product of my own work and that all the assistance received in preparing this thesis and sources have been acknowledged.

David Kearns 29/06/2019

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Authorship Attribution Statement

This thesis contains material published in David Kearns, ‘Sovereignty and Judicial Office in Taylor’s Case (1675)’, Law and History Review, 37:2 (2019), 397-429, and material to be published in David Kearns and Ryan Walter, ‘Office, Political Theory, and the Political Theorist’, The Historical Journal (forthcoming). The research for these articles was undertaken as part of the research for this thesis. I am the sole author of the first article and sole author of section I of the co-authored article, and it is the research underpinning section I that appears in the thesis.

David Kearns 29/06/2019

As supervisor for the candidature upon which this thesis is based, I can confirm that the authorship attribution statements above are correct.

Andrew Fitzmaurice 29/06/2019

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Acknowledgements

Many debts have been incurred in the writing of this thesis, and these acknowledgements must necessarily be a poor repayment for the assistance that has made it possible. I was fortunate enough to write this thesis under the supervision of Andrew Fitzmaurice, whose scholarly generosity, rigorous commentary on my work, and enthusiasm was a consistent source of learning and inspiration. Ryan Walter, whose guidance as an Honours supervisor dissuaded me from less fruitful academic pursuits and planted the initial ideas for this project, provided incisive feedback, and was a much-valued interlocutor. Conal Condren and Ian Hunter, two scholars whose intellectual influence bears an indelible mark on this thesis, were generous correspondents and assisted in thinking through and sharpening the argument. Rohan Todd, Charlotte Johann, and Amy Jelacic deserve special thanks for providing exceptional camaraderie and rich and insightful dialogue throughout. Many of the ideas animating this thesis were thought through in conversation with Alisa Draskovic, whose encouragement and support has been a constant source of motivation, particularly in the face of intellectual doubt. My parents, Graham and Susan Kearns, implanted the passion for historical research that underpinned this work.

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Contents Abstract ...... 6 Introduction ...... 7 Part 1: Introduction ...... 39 Chapter 1: The Pre-Restoration Dispute over Judicial Office ...... 43 Chapter 2: Judicial Office outside the Common Law ...... 76 Chapter 3: Judicial Office within the Common Law ...... 109 Part 1: Conclusion ...... 134 Part 2: Introduction ...... 138 Chapter 4: Statute and Ecclesiastical Law before the Restoration ...... 141 Chapter 5: Restoration Judicial Office and the lex scripta ...... 178 Chapter 6: Restoration Judicial Office and the lex non scripta ...... 221 Part 2: Conclusion ...... 250 Conclusion ...... 252 Appendix ...... 256 Bibliography ...... 287

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Abstract

This thesis argues that Restoration English debate over sovereignty and state was dominated by attempts to configure the scope of common law judicial office, with arguments in favour of the judiciary’s subordination to the king or the most common. In response, members of the Restoration judiciary not only rhetorically defended their office as , but the judges of the Court of King’s Bench, the highest common law court, exercised their office in such a way as to affirm their independence. They effected this through two processes. First, they grounded their office chiefly in the lex non scripta, rather than statute developed by king or parliament. The Restoration judiciary focused on the customary practices of the realm, found through research into the records of the common law itself. They engaged with statute – the lex scripta – ambivalently, at times ignoring it, or citing it in the face of explicit opposition by Charles II and James II to the legislation in question. Second, the judges claimed their office was responsible for the administration of temporal concerns, such as the defence of the realm, and distinguished this from the salvific focus of the Church, which they described as spiritual.

That the judiciary exercised their office as independent of Church and crown requires that we rethink our historiographic approaches to the Restoration, which have tended to treat sovereignty as juridically hierarchical, and Restoration England as confessionalised. As we will see, though the judiciary recognised the king as sovereign, they claimed this entailed only a marginal legal power, its limits subject to the common law judiciary, not an exclusive supremacy over the law. And although the Restoration judiciary prosecuted along confessional lines, they did so not in terms of the salvific focus of the Church, but in terms of the temporal focus of the common law, subordinating the Church to the needs of the state.

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Introduction

‘[T]he Soveraign… is he that Judgeth: The subordinate Judge, ought to have regard to the reason, which moved his Soveraign to make such Law, that his Sentence may be according thereunto’. , Leviathan1

‘The stream of righteousness must not incorporate, nor be mixed with the mud of injustice, for that will hinder the current from sliding through the channels of Judicature, so purely and speedily, as the Judge of all the world commandeth and expecteth’. Robert Harrison, Two Sermons Lately Preached at the in St. Maries Church in Leicester2

‘The of England may aptly enough be divided into two Kinds… Lex Scripta, the written Law; and Lex non Scripta, the unwritten Law… those Laws have obtain’d their Force by immemorial Usage or Custom’. , The History of the Common Law of England3

The first passage quoted above comes from Thomas Hobbes’s Leviathan, first published in 1651, two years after the . Writing from France in exile, where he was responsible for the education of Charles’s son, Hobbes’s tract offered an account of the English state to caution against future turmoil like that which had thrown England into civil war. The Civil Wars had resulted in the abolition of the , the execution of the king, and the formation of an English republic. The central figure of Hobbes’s story was the sovereign: created through compact at the moment of the state’s formation, the sovereign held unlimited power as the sole maker of laws within a state, and above the law.

For Hobbes, the sovereign, whether constituted of one man or many, sat atop a hierarchical legal establishment. The sovereign legislated, and the judiciary implemented this legislation faithfully. Hobbes developed this argument with consistency across a range of texts, but the

1 Thomas Hobbes, ‘Leviathan’, in Noel Malcolm, ed., The Clarendon Edition of the Works of Thomas Hobbes (hereafter Clarendon Works): Volume 4 (: , 2012 [1651]), 422. 2 Robert Harrison, Two Sermons Lately Preached at the Assizes in St. Maries Church in Leicester (: 1672), 16. 3 Matthew Hale, The History of the Common Law of England (Chicago: University of Chicago Press, 1971 [1739]), 3. 8 judiciary received its most sustained treatment in A Dialogue Between a Philosopher and a Student, of the Common Laws of England, published posthumously in 1681, but circulated as a manuscript at least a decade earlier. Among other claims, Hobbes argued there that those ‘Learned in the Laws’, the common lawyers of England, had been responsible for creating the fiction of a legally restrained king, which had made possible the Civil Wars.4

Hobbes was here offering no banal truism of the English juridical system, but positioning himself within a rhetorical contest that began at least as early as the sixteenth century. In arguing for sovereign supremacy over judicial office, Hobbes aligned himself with the arguments of James VI and I, Charles I, and his former patron . All had argued, between the late sixteenth century and the 1640s, that the king was above the law, and that he and his predecessors were responsible for all law. Hobbes built on this argument in the Restoration, alleging that it was the forgetting of this legal truth that had resulted in the chaos of the 1640s and .

This tradition that sought the subordination of the judiciary to an omnipotent sovereign was rivalled by a number of other approaches which also sought to configure judicial office, often in ways equally unsympathetic to the judiciary. One such rival means of articulating the role of the judge can be seen in the second epigraph, by the parson Robert Harrison. Like Hobbes, Harrison’s account of the judiciary was hierarchical, for the judiciary were treated as subordinate to higher juridical powers. But Harrison broke with Hobbes regarding the identity of the higher power: the judiciary were servants not of sovereignty but of God, whose will was to be interpreted to them by clergy members like Harrison. Harrison was not alone in making this argument. It was one proffered by numerous clergy during the Restoration, and indeed, one that drew in some cases on the more extreme proposals for law reform, which proposed the total abolition of the common law for a new legal system based on Biblical teaching.

Harrison preached this sermon on judicial subordination to divine will at an assize, a regional court attended by the senior judges of Westminster. Assizes provided an opportunity for direct contact between clergy and judiciary. Some of the Restoration clergy, preaching in the wake

4 Thomas Hobbes, ‘A Dialogue between a Philosopher and a Student, of the Common Laws of England’ (hereafter ‘Dialogue’), in Alan Cromartie and Quentin Skinner, eds., Clarendon Works: Volume 11 (Oxford: Oxford University Press, 2005 [1681]), 1-146, at 22. 9 of the restitution of their Church and a brace of statutes that enshrined conformity with the Church of England’s dictates, took this opportunity to declare their own supremacy over England’s judges. Assize sermons, in other words, offered an opportunity for clergy to dictate to senior common law judges the appropriate exercise of their office, and they rarely held back. This was a significant move: the clergy already administered their own courts, the diocese- based ecclesiastical courts that constituted the second-largest legal jurisdiction in England after the common law. Here, they asserted a supremacy over their juridical rival, too. And they did so in direct confrontation with a Hobbesian model of law: pastors like Harrison gave no attention to kingship, emphasising instead the direct relationship between clergy and court.

The third epigraph, by Matthew Hale, who served in the Restoration as an Exchequer Baron and Chief Justice of the Court of King’s Bench, the most senior common law court, provides us with a third interpretation of the role of the judge and the relationship of judicial and sovereign office. Most notably, Hale’s reading contrasts with Hobbes’s, for in the latter’s account, the law implemented by the judiciary was drawn entirely from sovereign will in the form of legislation. But for Hale, legislation was only part of the law – the lex scripta – alongside the lex non scripta, the customary practices of the realm absorbed into the law through the process of judicial recognition. The king was not responsible for the lex non scripta, so the judiciary must, in Hale’s view, rely on sources that exceeded the sovereign, who was on this reading one source, but not the only source, of law. Though less explicit, we can see no sympathy for Harrison in Hale’s quote. If the law was only of two sorts – statute and custom – where was the room for divine will?

Like his interlocutors, Hale’s argument also had its predecessors. It stretched back to , who had mentored Hale and had himself clashed with Hobbes’s patron Bacon and Charles I, and even further to the Tudor jurist Christopher St German. This rhetorical tradition emphasised judicial independence. The judiciary were not subordinate, but rather initiates to a form of reasoning that required an ability to synthesise former judgments, wherein could be found the realm’s ancient customs, and statute law, adapting these sources to the case at hand to develop a judgment consistent with extant law. On this reading, subordination was impossible: those uninitiated could not comprehend the complexity of law, and thus could not seek to govern the judges who implemented it.

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Against the hierarchical models of law proffered by Hobbes and Harrison, the common lawyers articulated an account of a network of institutions that worked together in the implementation of law. King and parliament created statutes, and lawyers interpreted these alongside the lex non scripta when hearing cases. In this scheme, the judges worked with king and parliament, but could not be subordinate to them, given they possessed unique skills for the blending of diverse legal sources into judgments. Importantly, this scheme gave no credence to Harrison’s account of law. Hale would acknowledge elsewhere that the ecclesiastical courts played their own important role in England, if one curtailed by common law, but he denied the clergy had any authority in common law.

If Harrison did not use the language of sovereignty, both Hale and Hobbes did throughout their writings on law, and they used it, as the foregoing suggests, in significantly different ways. For Hobbes, sovereignty entailed the exclusive power to make law, a process undertaken through legislation, and the bearer of sovereignty occupied the apex of a hierarchical juridical regime. For Hale, the king was sovereign, but legislation was not the only source of law, for judges, too, created law through recognising customs as law. Although Harrison did not deploy the term ‘sovereignty’, we can see that his comments were a response to a similar problem. In a context in which many invoked the sovereign, to ignore the sovereign and speak instead of God’s will and the importance of the clergy in interpreting it constituted an engagement in the broad debate about sovereignty; a marginalisation of sovereign for clerical office.

In short, the three quotations reveal that sovereignty was under dispute in the Restoration. Yet when we turn to the accounts of early modern England produced by intellectual historians, we see little awareness of this dispute. The first section of this introduction clarifies the nature and source of this flaw in contemporary historiography. The second section sets out the argument of the thesis, demonstrating the ways in which it seeks to address some of the shortcomings present in intellectual history examining seventeenth-century England. Finally, the third section details the thesis’s structure, elucidating the means by which this argument has been constructed and indicating some of the conclusions to be developed.

I A common approach to sovereignty among intellectual historians of seventeenth century England has been to treat the term as uncontested. We can find this approach in the works of many intellectual historians, but it is perhaps most explicit in one of the most significant works 11 in twentieth-century intellectual history: Quentin Skinner’s Foundations of Modern Political Thought. For Skinner, the ‘acquisition of the modern concept of the state’ occurred in the seventeenth century, and was a process contingent on the realisation of four preconditions. First, the envisaging of politics as an independent sphere; second, an appreciation that each state was independent of others; third, that the ‘supreme authority’, within a state was ‘recognised as having no rivals within its own territories as a law-making power’, this supreme authority being ‘sovereignty’; and fourth, an understanding that ‘political society’ existed for ‘political purposes’.5 As of the full acquisition of this modern concept of the state, Skinner invokes Hobbes, who he claims ‘reflects’ this development.6

The key point here is that Skinner treats sovereignty as a precondition of the modern state, and understands sovereignty as the possession of an exclusive law-making power, claims he recognised in Hobbes. As we have seen, Hobbes certainly made such claims, but they were not descriptions of an epochal transformation in how the state was understood. Rather, they were polemical moves in a conflict over sovereignty, repudiated by Church and common lawyers, in whose hands the significance of sovereignty to law was greatly diminished. Despite this, Skinner has not been alone among intellectual historians in understanding sovereignty in this way. Corinne Weston and Janelle Greenberg argue that ‘law-making constituted the distinctive and pre-eminent mark of political sovereignty’. In this context, they claim that the animating ideological dispute of seventeenth century England regarded who possessed sovereignty: the king alone, or the king and houses of parliament.7 Sovereignty, as in Skinner’s treatment, was a legislative power, and law was made through legislation.

These are explicit and detailed scholarly accounts of early modern sovereignty, but the term can be found widely used in a more casual manner among intellectual historians of the period. In its more casual iteration, the term ‘sovereignty’ has been deployed to refer to absolute legal control of a territory, a definition again redolent of Hobbes. We can take as indicative of this approach Ian Hunter’s and David Saunders’s introduction to their illuminating edited collection, and Civil Sovereignty, in which they define sovereignty as ‘the exercise of a unified, secular and unchallengeable dominion over a territory and its population’.

5 Quentin Skinner, Foundations of Modern Political Thought, 2 vols. (Cambridge: Cambridge University Press, 1978), 2: 349-52. 6 Ibid., 2: 349. 7 Corinne Weston and Janelle Greenberg, Subjects and Sovereigns (Cambridge: Cambridge University Press, 1981), 3, 4. 12

As Hunter and Saunders perceptively note, this ‘concept’ of sovereignty has not gone unchallenged. It has been subject to normative critique regarding whether it poses a danger to the individual, and questions regarding its utility in an increasingly globalised international community.8 But contest over the definition of the term ‘sovereignty’, contest of the sort that Harrison and Hale engaged in, is not considered.9

That early modern sovereignty referred to a secular legislative power, or, more generally, to uncontested legal control of a territory, is the dominant position among intellectual historians regarding sovereignty, but it is increasingly subject to critique, some persuasive. One of the earliest critiques of the argument that early modern England was constituted by a secular understanding of the state and sovereignty came from J. C. D. Clark. For Clark, Restoration England was a ‘confessional state’, given the extensive legislative entrenchment of the Church of England in the early years of Charles II’s reign.10 Though Clark’s argument contests the understanding of the early modern state as secular, he nevertheless endorses a model of legislative sovereignty. For he comprehends the English state through the legislation passed by its king and parliament; sovereignty entailed an exclusive law-making power, but this power was exercised to confessional ends.

That early modern sovereignty referred to a secular legislative power, or, more generally, to uncontested legal control of a territory, is the dominant position among intellectual historians regarding sovereignty, but it is increasingly subject to critique, some persuasive. One of the earliest critiques of the argument that early modern England was constituted by a secular understanding of the state and sovereignty came from J. C. D. Clark. For Clark, Restoration England was a ‘confessional state’, given the extensive legislative entrenchment of the Church

8 Ian Hunter and David Saunders, ‘Introduction’, in Ian Hunter and David Saunders, eds., Natural Law and Civil Sovereignty (Basingstoke: Palgrave Macmillan, 2002), 1-10, at 1. 9 For further examples, see: Johann P. Sommerville, ‘English and European Political Ideas in the Early Seventeenth Century: Revisionism and the Case of Absolutism’, Revisionisms 35:2 (1996), 168-94; Michael J. Braddick, State Formation in Early Modern England, c. 1550-1700 (Cambridge: Cambridge University Press, 2000), 210; Clare Jackson, ‘Natural Law and the Construction of Political Sovereignty in Scotland, 1660-1690’, in Natural Law and Civil Sovereignty, 155-69; Lauren Benton, A Search for Sovereignty (Cambridge: Cambridge University Press, 2009), Chapter 6; Lauren Benton and Benjamin Straumann, ‘Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice’, Law and History Review 28:1 (2010), 1-38; Annabel Brett, Changes of State (Princeton: Princeton University Press, 2011), 5, 212; Mark Goldie, ‘Absolutism’, in George Klosko, ed., The Oxford Handbook of the History of (Oxford: Oxford University Press, 2011), 282-93; Richard Tuck, The Sleeping Sovereign (Cambridge: Cambridge University Press, 2016); Edward Cavanaugh, ‘Prescription and Empire from Justinian to Grotius’, The Historical Journal 60:2 (2017), 273-99. 10 J. C. D. Clark, English Society 1660-1832 (Cambridge: Cambridge University Press, 2000), 26. 13 of England in the early years of Charles II’s reign.11 Summarising his argument, Hunter has described Clark’s account of Restoration England as defined by an ‘Anglican constitutional order’.12 Importantly, though this argument contested the understanding of the early modern state as secular, Clark nevertheless endorsed a model of legislative sovereignty. For he comprehended the English state through the legislation passed by its king and parliament; sovereignty entailed an exclusive law-making power, but this power was exercised to confessional ends.13

Clark’s argument itself has come under scrutiny from historians of the Church of England and its relationship to the other institutions of the English state. For these historians, Restoration England was defined by conflict between and within these institutions; less a stable confessional order, the Church and its role in the English state was subject to extensive debate. Though few of these historians have contemplated explicitly the question of Restoration sovereignty, their arguments raise questions regarding this subject. In revealing the degree of dispute animating the Restoration English state, these accounts highlight the limitations of sovereignty. Where Clark cast legislative sovereignty as instituting a confessional regime, it appears such legislation was incapable of quelling dispute, signalling the limitations of such sovereignty.

Nicholas Tyacke has demonstrated that the Church of England itself was a coalition of disparate commitments. Regarding dissent, the early archbishops of the Restoration – William Juxon, Gilbert Sheldon, and William Sancroft – were stringent in their opposition, sustaining the Church’s pre-Civil Wars opposition to dissent under Archbishop . They did so, though, under opposition from a Latitudinarian faction that sought to soften the Church’s approach to dissent. This latter faction rose to prominence in the wake of James II’s abdication, with , Sancroft’s successor, the first Restoration Latitudinarian Archbishop.14 For Gary S. De Krey, the Restoration threw up multiple forms of dissenting religious practice, often anchored in notions of . These constituted a radical challenge to the

11 J. C. D. Clark, English Society 1660-1832 (Cambridge: Cambridge University Press, 2000), 26. 12 Ian Hunter, ‘English Blasphemy’, Humanity 4:3 (2013), 403-28, at 412 13 For a post-1688 account that similarly comprehends the English state through legislation regarding religion, see: Hugh Trevor-Roper, ‘Toleration and Religion after 1688’, in Ole Peter Grell, Jonathan I. Israel, and Nicholas Tyacke, eds., From Persecution to Toleration: The and Religion in England (Oxford: Oxford University Press, 1991), 390-409. 14 Nicholas Tyacke, ‘From Laudians to Latitudinarians: A Shifting Balance of Theological Forces’, in Grant Tapsell, ed., The Later Stuart Church, 1660-1714 (Manchester: Manchester University Press, 2012), 46-67. 14

Restoration settlement, premised as they were on a substantial challenge to the prevailing institutional order.15

The destabilising force of dissent – the significance of the challenge it posed to the Restoration regime – has also been covered by John Spurr and Mark Goldie. Spurr showed that a core focus of the Restoration Church was the sinfulness of schism.16 In this context, advocates of uniformity cast the opposition to dissent as the prosecution, rather than persecution, of dissenters, given intolerance was pursued for the good of dissenters’ souls.17 Similar to this attention to the sinful nature of dissent, Goldie uncovered the theological basis for intolerance, revealing the use of St Augustine by the Restoration Church to justify coercion against dissenters, given the potential of coercion to lead dissenters towards true faith.18 Indeed, such strenuous intolerance seems understandable: as George Southcombe has showed, Restoration dissenters used print to mount an attack on the Church as a persecutor with such ferocity that it took them beyond a meek persecuted minority.19

Other historians of the Restoration Church have more explicitly confronted the challenge the Church posed to sovereignty. For Jacqueline Rose and Jeffrey Collins, the Restoration state was defined by a conflict between Church and crown over whether the king held ecclesiastical supremacy, and what such supremacy entailed. According to Rose, royal supremacy was subjected to extensive contest in this period, with partisans contesting the location of supremacy – in the king alone, king and parliament, or a lay vicegerent – and how far it extended regarding the administration of the Church.20 On Collins’s reading, the Restoration Church of England resisted claims of monarchical supremacy by asserting a jure divino autonomy. For defenders of the Church’s independence from monarchical oversight, the English state was constituted of separate spiritual and secular spheres, the former the province Church, the latter the crown.21 For Andrew Fletcher, despite the extensive legislative

15 Gary S. De Krey, ‘Rethinking the Restoration: Dissenting Cases for Conscience, 1667-1672’, The Historical Journal 38:1 (1995), 55-83. 16 John Spurr, ‘Schism and the Restoration Church’, Journal of Ecclesiastical History 41:3 (1990), 408-424. 17 Ibid., 423. 18 Mark Goldie, ‘The Theory of Religious Intolerance in Restoration England’, in From Persecution to Toleration, 332-69. 19 George Southcombe, ‘Dissent and the Restoration Church of England’, in The Later Stuart Church, 195-216. 20 Jacqueline Rose, ‘Royal Ecclesiastical Supremacy and the Restoration Church’, Historical Research 60:209 (2007), 324-45; Jacqueline Rose, ‘By Law Established: the Church of England and the Royal Supremacy’, in The Later Stuart Church, 21-45; Jacqueline Rose, Godly Kingship in Restoration England (Cambridge: Cambridge University Press, 2011), Introduction. 21 Jeffrey R. Collins, ‘The Restoration Bishops and the Royal Supremacy’, Church History 68:3 (1999), 549-80. 15 entrenchment of the Church, enforcement of this legislation was, based on a small sampling of counties, hardly systemic; more often, it was sporadic, contingent upon priorities of the presiding justices.22

In short, the argument that the Church had an independent juridical status was an assault on the claim that sovereignty entailed an exclusive law-making capacity. For the king could not be the sole law-making authority in England if he did not have total authority over the Church. Recall Harrison’s articulation of a judiciary subordinate to divine will: his argument is not quite a defence of the Church’s independent juridical status, but it developed an account of law in which the sovereign was marginal. To be clear, none of these accounts challenge Clark’s contention that religion was at the heart of Restoration England. Indeed, the intensity of disputes over the Church’s position affirms the centrality of the Church as a concern. Rather, they contest the degree we can understand the Restoration as a stable confessional order anchored in legislation by demonstrating the salience of claims for juridical authority beyond the legislative.

Elsewhere, the turn towards the international arena has constituted an attack on ideas of sovereignty as a unified power. David Armitage argues that scholarship increasingly reveals that the Treaty of Westphalia was less an exemplar of the institution of untrammelled sovereign states, but emphasised the divided nature of early modern sovereignty. Sovereignty entailed an exclusive law-making power, but this was a power shared between multiple authorities.23 It is important to appreciate in this claim of Armitage’s the shift in sources undergirding it. Armitage is contesting the claims of those such as Skinner who argue that a key legacy of early modernity was the modern state, itself premised on a singular sovereign authority within a state. But Armitage does so through a rival set of sources to Skinner and Weston and Greenberg, indeed, through a set of sources rarely the province of intellectual historians: .

In charting his history of the rise of the concept of the modern state, Skinner’s argument rests on a particular methodological approach: he claims to provide a ‘history of ideologies’.24 This

22 Andrew Fletcher, ‘The Enforcement of the Conventicle Acts 1664-1679’, Studies in Church History 21 (1984), 235-46. 23 David Armitage, Foundations of Modern International Thought (Cambridge: Cambridge University Press, 2012), 27. 24 Skinner, Foundations of Modern Political Thought, 1: xii. 16 process involves the arrogation of texts he designates as works of ‘political theory’, from which he claims to develop a contextual history by which he can observe the process of concept formation. Weston and Greenberg claim to ground their argument regarding the ideologies of seventeenth century English debate in the pamphlet literature of seventeenth century England.25 Clark notes his preference for speaking of rival ‘theologies’ rather than ‘ideologies’,26 and although his argument rests on a wider source base than Skinner’s and Weston and Greenberg’s, including sermons,27 he still writes of the confessional ‘ideology’ of ancien regime England.28 Indeed, Armitage himself only gestures towards the importance of legal texts in telling the history of sovereignty, focusing instead on the history of ‘international theory’,29 a project in which he seeks to recover the supposed ‘international theory’ in Hobbes’s work,30 or searches for ‘ideological origins’.31

The governing weakness of the approaches to sovereignty among intellectual historians of early modernity, and in particular of early modern England, is the treatment of sovereignty as a concept. If sovereignty is now treated as a concept within the disciplines of political theory and political philosophy, it was not so understood in the seventeenth century. Rather, in early modern England, sovereignty was understood as an office. A person, such as a monarch, or people, such as a parliament, bore sovereign office and exercised the powers of this office; in particular, the legal powers accruing to the sovereign. And it was these legal powers that were in dispute in the seventeenth century. In short, it was not a concept or theory of sovereignty in dispute in the seventeenth century, but the scope of action legally available to a particular officeholder.

The epigraphs opening this introduction illustrate this point. The key question animating Hobbes, Hale, and Harrison regarded the exercise of law and the legal powers of the sovereign. For Hobbes the sovereign was legally unrestricted: the officeholder held an exclusive law- making power and was unbound by law. For Hale, the sovereign was one law-maker, but not the only one. For Harrison, the Church held pre-eminent juridical authority. These claims were

25 Weston and Greenberg, Subjects and Sovereigns, Preface. 26 Clark, English Society 1660-1832, 10. 27 Ibid., 31, 109-11. 28 Ibid., 19. 29 Armitage, Foundations of Modern International Thought, Introduction. 30 Ibid., 59. 31 David Armitage, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000). 17 not engagements in an abstract dispute between rival ideologies or theories, nor were they normative critiques of a concept of sovereignty. Rather, they contested the particular legal authority that accrued to sovereign office.

The historiographical vice of anachronism is the likely source for this tendency among intellectual historians to treat sovereignty as if it were principally a theoretical problem, not a question of which powers a given officeholder could exercise. The form this particular vice takes among intellectual historians is the untested assumption that as the state and sovereignty are problems for political theory today, then political theory is the relevant idiom in which to locate debates regarding sovereignty in the past. In other words, intellectual historians have retrospectively projected the identity of the political theorist, and the genre of political theory, onto early modern actors and the texts they produced.

II A nascent body of scholarship has begun to demonstrate that political theory is not timeless but itself historically contingent. These historians have pushed back against the uncritical assumption common to intellectual historians that debate, particularly regarding the state, law, and sovereignty, is coterminous with theory, with ‘theory’ thus an appropriate term for describing any historical instance of thinking on these subjects. Ian Hunter’s work is crucial to this field. Explicating his work as an ‘empirically oriented intellectual history’, Hunter treated the rise of the term ‘theory’ in 1960s humanities academies as ‘a matter for historical investigation’.32 To this end, Hunter approached the 1960s as a ‘moment of theory’ in which the persona of the humanities theorist ‘emerge[d]’ as a result of ‘concrete intellectual struggles’.33 The effect of this approach, in short, was to treat theory not as a condition of all thought, but as a particular intellectual activity, one undertaken by particular individuals in particular circumstances.

Describing this approach, David Saunders commended Hunter’s treatment of theory as ‘a specific manner of exercising an intellectual persona’; a statement carrying the obvious implication that other manners were just as possible.34 Indeed, the late Barry Hindess contrasted

32 Ian Hunter, ‘The History of Theory’, Critical Inquiry 33:1 (2006), 78-112, at 80, 112. 33 Ibid., 94, 103. 34 David Saunders, ‘Introduction: For Ian Hunter, Intellectual Historian’, History of European Ideas 40:1 (2014), 3-10, at 5. 18

Hunter’s approach to that of Skinner, who he saw as burdened by a metaphysical commitment to dialecticism, his approach reliant on constructing a dialectical relationship between political theory and political life.35 In contrast, eschewing the presumption that theory was a ‘condition of historical knowledge’, Hunter defended his work as treating ‘theory as an object of historical investigation’.36 With theory provincialised as a particular intellectual mode, ‘thinking’ could be approached as an ‘open-ended array of intellectual performances’; an injunction that opens a path towards a more expansive and empirical intellectual history, more capable of capturing the varieties of historical thought.37

Wanderers on this path remain few, though initial entries in the history of theory have served to underscore and develop Hunter’s contention that theory is a particular intellectual activity, rather than the foundation of all thought. Joel Isaac’s account of Cold War theorising in the human sciences drew explicitly on Hunter, and held that theory had a ‘peculiar history’ in the human sciences in America as the term held little sway until the Second World War.38 Consistent with Hunter’s claims, it was only ‘since the 1960s’ that ‘a more or less autonomous domain of “theory”… in the Angle-American humanities academy’ appeared.39

More recently, Ryan Walter’s work has extended the history of theory into the late eighteenth and early nineteenth centuries, where he has revealed fierce contest over the position of theory. Where Hunter and Isaac provincialised theory by studying it as a particular intellectual activity, Walter elucidated a period in which theory was under attack by proponents of rival intellectual schemes. Regarding the debates around the Bullion Controversy in the early nineteenth century, Walter shows a key theme of the Controversy was the rhetorical ‘contest between theory and practice’.40 To this end, he highlights polemicists like Henry Thornton who opposed a ‘practical view’ to ‘theory’,41 and Charles Bosanquet, in whose work we find ‘the valorisation of practice at the expense of theory’.42 In contrast, David Ricardo defended a form of theory

35 Barry Hindess, ‘Bringing Metaphysics Back In?’ History of European Ideas 40:1 (2014), 44-9, at 47. 36 Ian Hunter, ‘The Mythos, Ethos, and Pathos of the Humanities’, History of European Ideas 40:1 (2014), 11-36, at 29. 37 Ian Hunter, ‘Critical Response II: Talking about My Generation’, Critical Inquiry 34:3 (2008), 583-600, at 584. 38 Joel Isaac, ‘Tangled Loops: Theory, History, and the Human Sciences in Modern America’, Modern Intellectual History 6:2 (2009), 397-424, at 406, 409. 39 Ibid., 408. 40 Ryan Walter, ‘The Bullion Controversy and the History of Political Thought: Experience, Innovation, and Theory’, Intellectual History Review 29:3 (2019), 467-88, at 471. 41 Ibid., 475. 42 Ibid., 479. 19 sufficiently grounded in experience, and Thomas Malthus attacked the opponents of theory as mere proponents of routine and habit.43

Elsewhere, expounding Dugald Stewart’s defence of the speculative arts of the theorist, Walter showed that a key to Stewart’s defence of theory has become central to contemporary justifications of theory. Stewart argued that it was impossible to ever simply apprehend facts. Rather, all thinking was theoretical, and professed opponents of theory merely practiced a particularly primitive form.44 Walter described his starting point as the ‘premise… that to theorise is a peculiar activity, one only undertaken by certain actors under cetrain conditions’.45 The takeaway is that theory was not a given, as these debates pitted avowed theorists defending the abstracting advantages of theory against advocates of practice, who derided the speculative nature of theorising. Importantly, that ‘theory’ could be deployed as a dysphemism in the nineteenth century, and that multiple polemicists aligned themselves against theory, suggests the need to be cautious in ascribing the labels ‘theory’ and ‘theorist’ to early modern authors writing almost two centuries earlier.

Indeed, as we will see, theory was a maligned term in seventeenth century England in debates over state and law. The core rhetorical focus of early modern England was office, and the key scholar on this subject is Conal Condren. Though he did not explicitly confront the problem of political theory’s retrospective projection into early modernity in Argument and Authority in Early Modern England, Condren’s ground-breaking monograph dismissed the related anachronistic use of ‘ideology’ and centred office as early modern England’s rhetorical centrepiece. Condren demonstrated that early modern English rhetoric was grounded in a ‘presupposition of office’, by which he meant that the entire world was understood to be divided into offices constituted by variable rights and duties and norms of propriety.46 To fail to appropriately carry out the duties of office or to exceed the bounds of appropriate conduct could result in the dissolution of one’s official status. The centrality of office, according to Condren, was a legacy of the Renaissance’s recovery of a Greco-Roman ‘ethics of office’.47

43 Ibid., 479-80. 44 Ryan Walter, ‘Defending Political Theory after Burke: Stewart’s Intellectual Disciplines and the Demotion of Practice’, Journal of the History of Ideas 80:3 (2019), 387-408, at 403. For a contemporary example of the argument that all thought is theory, see Frederic Jameson’s attack on Hunter: Frederic Jameson, ‘Critical Response I: How Not to Historicize Theory’, Critical Inquiry 34:3 (2008), 563-82, at 573. 45 Walter, ‘Defending Political Theory after Burke’, 391. 46 Conal Condren, Argument and Authority in Early Modern England (Cambridge: Cambridge University Press, 2006), 2. 47 Ibid., 17. 20

That office was presuppositional is important. Though the term ‘office’ was in wide use in this period, as we will see in Section 1 of this thesis, Condren’s point is that even where we do not see the term explicitly invoked, we are seeing office rhetoric at work wherever we see a focus on the rights and duties of those in discrete roles. Among the most obvious examples of such rhetoric was oath-taking, but it can be perceived in all cases where the scope of action permissible to a particular officeholder was at issue. For Condren, office could be formal and informal, and extended even to the nonhuman world; mothers and fathers, justices of the peace, the king, the sun – all had an office, a particular function specific to their position within the broader operation of the English state. In emphasising the informality of office, Condren blocked Phil Withington’s and Mark Goldie’s claim that the spread of formal office denoted a republican character to the early modern English state.48

Such narratives are misplaced, according to Condren: they are the consequence of a desire to classify early modernity in terms of ideologies. This move, in itself, is an anachronism, given the term ‘ideology’ emerged only in the nineteenth century.49 Moreover, to elevate formal officeholding into a sign of republicanism is to ignore the ubiquity of informal office. If the sun had an office, or parenthood denoted an office, or if men employed to scavenge rubbish from the street held office, then officeholding was not equivalent to self-government. In Condren’s own words, no ideological regime prevailed in early modern England, for so central was office that ‘office-holding was the regime’.50

Given officeholding was the regime of early modern England, then the dominant rhetorical mode of this regime was, according to Condren, casuistical. Casuistry refers to the privileging of the specificity of action in particular circumstances over unchanging and undistinguished moral rules. It was ‘deontologically subversive, privileging the obligations of a specific social office’.51 A corollary of this rhetorical mode was that the locus of dispute was often contention over the particular practices appropriate to holding certain offices. Indeed, given that some

48 Phil Withington, The Politics of Commonwealth (Cambridge: Cambridge University Press, 2005); Mark Goldie, ‘The Unacknowledged Republic: Officeholding in Early Modern England’, in Tim Harris, ed., The Politics of the Excluded, c. 1500-1850 (Basingstoke: Palgrave, 2001), 154-94. 49 Condren, ‘The History of Political Thought as Secular Genealogy’, 116; Conal Condren, ‘Reason of State and Sovereignty in Early Modern England: A Question of Ideology?’, Parergon 28:2 (2011), 5-27, at 6. 50 Condren, Argument and Authority in Early Modern England, 62. 51 See Condren, ‘Reason of State and Sovereignty in Early Modern England’, 15. 21 offices were themselves constituted by rhetorical functions – judicial office; the office of the philosopher52 – the boundary between discussing office and exercising it was porous.

One implication of this focus on office’s exercise and the blurring of the boundary between exercise and rhetoric of office, though not an implication pursued directly by Condren, is that early modern English rhetoric was much closer aligned with practice. There are few rhetorical contexts in which this was more pronounced than law, where legal texts and courtroom dicta both constituted explicit considerations of sovereign and judicial power in the process of delivering judgments and articulating laws.53 A casuistical idiom was thus one incompatible with the modern opposition between theory and practice, for this was a rhetoric that considered matters of state, law, and sovereignty through a focus on office-exercise. To write of seventeenth century political theory is not only an anachronism, but to enforce a modern theory-practice binary onto this world obscures the variety of past rhetorical modes.54 In suspending the presumption of political theory’s timeless ubiquity, we are better placed to recover this multiplicity.

Condren himself has initiated the attempt to demonstrate that it was office, rather than theory, that took central place in seventeenth century English debate. Challenging the retrospective projection of the term ‘political theory’ onto early modern English debate, Condren argued against seeing the ‘political’ in early modernity as analogous to the ways we understand it today. As Condren persuasively argues, to treat the ‘political’ in early modern England as a ‘coherent domain of activity, replete with defining concepts and so a suitable case for sustained reflection’ is to presuppose a ‘solidity from something more fugitive’. In other words, though the term ‘political’ can be found in use in early modern England, its use was unstable, its

52 On the philosopher’s office, see Conal Condren, ‘The Persona of the Philosopher and the Rhetorics of Office in Early Modern England’, in Conal Condren, Stephen Gaukroger, and Ian Hunter, eds., The Philosopher in Early Modern Europe (Cambridge: Cambridge University Press, 2009), 66-89. 53 For initial entries on judicial office, see: Maija Jansson, ‘Matthew Hale on Judges and Judging’, Journal of 9:2 (1988), 201–13; David Saunders, Anti-Lawyers (London: Routledge, 1997); David Saunders, ‘The Judicial Persona in Historical Context: the Case of Matthew Hale’, in The Philosopher in Early Modern Europe, 140–59; David Saunders, ‘The Biographical Turn: Lord Nottingham, His Case’, Law in Context 33:1 (2015), 86-106. 54 For example, Skinner, The Foundations of Modern Political Thought, 1: xii-xiii; Quentin Skinner, ‘Moral Principles and Social Change’, in Visions of Politics, 3 vols. (Cambridge: Cambridge University Press, 2002), 1: 145-157; Quentin Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press, 1998), 105-6. 22 significance ‘variable’. An early modern ‘political thought/philosophy/theory/science/ideology’ is thus an anachronism.55

This argument has been furthered more recently by Walter and I. We chart the opposition to theory in the seventeenth century, where the term was deployed in debate on law and the state as a pejorative, before turning to illuminate its faltering emergence as a rhetorical genre with an accompanying avowed identity in the early nineteenth century.56 Key to this argument, as we will see in greater detail in Chapter 3, is Matthew Hale’s deployment of ‘theory’ as a term of abuse against Hobbes.57 As Hale claimed, a reliance on ‘Speculacons Theoryes and distinctions’ produced ‘the worst Judges that can be’.58 Indeed, Hale’s contemporaries used the term sparingly, and never in conjunction with problems of state. Isaac Newton could be described as a ‘theorist’ for his work on gravity,59 but this does not give us grounds to see Hale or Hobbes as engaged in a theoretical struggle.

None of the interlocutors we encounter in this thesis, all of whom were actively engaged in debate on matters of law, the state, and sovereignty – all subjects considered the domain of political theory today – described their work as ‘theory’ or themselves as ‘theorists’. Even when these terms gained currency in the early nineteenth century, their emergence was defensive, as the proponents of so-called ‘theory’ thought their use of it necessary to justify. To impose the label of ‘theory’ upon the entirety of this intellectual landscape obscures these complex rhetorical manoeuvres, which would be better studied with attention to the ways in which past actors sought to delineate and define their work.

Given early modern English interlocutors on state, sovereignty, and law eschewed the term theory to describe their work, and deployed it only as a pejorative, there is an empirical

55 Conal Condren, ‘The History of Political Thought as Secular Genealogy: The Case of Liberty in Early Modern England’, Intellectual History Review 27:1 (2017), 115-33, at 120, 122. See also Conal Condren, The Language of Politics in Seventeenth-Century England (New York: St. Martin’s Press, 1994), Part I. 56 England, 1450-1642 (Cambridge: Cambridge University Press, 2006), Chapter 1. 56 Though for an account which treats as evidence of early modern theory John Case’s use of ‘theorem and… action’, see Sophie Smith, ‘The Language of “Political Science” in Early modern Europe’, Journal of the History of Ideas 80:2 (2019), 203-226. 57 David Kearns and Ryan Walter, ‘Office, Political Theory, and the Political Theorist’, The Historical Journal (2019), 1-21. 58 Matthew Hale, ‘Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes His Dialogue of the Lawe’ (hereafter ‘Reflections’), in W. S. Holdsworth, ‘Sir Matthew Hale on Hobbes: an Unpublished MS’, Law Quarterly Review 37:3 (1921), 274-303, at 289. 59 , A Confutation of Atheism from the Origin and Frame of the World (London: 1693), 8. 23 necessity in recovering the history of office rhetoric to displace anachronistic ascriptions of theory to early modern England. This is especially the case given that, as Walter has shown, among the first defences of theory was Dugald Stewart’s weaponisation of the allegation that all claims were theoretical as an accusation against the opponents of theory. To simply tar those who professed opposition to theory as theorists is thus to take a side in the battle over the status of theory; it is to absorb the arguments of Stewart and neglect those of his rhetorical enemies, elevating one side of this dispute at the expense of another.

Revealing theory’s marginal position in early modern England highlights to us the contingency of theory as merely one way of describing intellectual activity, currently fashionable, rather than a substrata begetting all thought. Once theory is provincialised in this manner, we may be better placed to assess its merits, to wonder at whether it is via the speculative that we best encounter and respond to the political problems of our day. Office rhetoric reveals to us a largely foreign linguistic world, but we should be cautious to simply see this world as entirely of the past; modern democracies hinge on the operation of formal offices, bound often by extensive rules specifying appropriate office exercise. The residuums of office rhetoric remain.

Demonstrating the anachronism of theory as a term to describe early modern English debate is also particularly important with regard to some of the techniques developed by contemporary theorists, with which unhelpful associations may be imagined should we describe early modernity in terms of theory. As Walter has shown, Dugald Stewart’s defence of theorising was in response to the allegation that theory begat ‘enthusiasm’, understood as dangerously abstract speculation unmoored from practice.60 Though Stewart allayed such fears by tethering his account of theory to a rigorous method of self-discipline, 61 theorists have become increasingly open to ever-more abstracted speculative modes. It is in this context that we might understand the work of contemporary political theorists like John Rawls and Philip Pettit.

Rather than mooring speculation to disciplines of self-restraint to ward off enthusiastic excess, Rawls and Pettit have championed approaches to theory wherein concepts are developed at a high level of abstraction before being projected down onto political life, often with little regard

60 Walter, ‘Defending Political Theory after Burke’, 390. 61 Ibid., 395-8. 24 for the diverse institutional structures of modern states.62 Such an approach is entirely anathema to the seventeenth century English world of office. Office rhetoric took as its starting point the myriad offices of the English state, for it was a mode centred on shaping these offices and configuring their relationships. To speak of theory in this rhetorical world thus risks raising unhelpful associations between a modern world of theory, in which a particularly prominent form relies on extreme acts of abstraction, and an earlier rhetorical landscape in which specificity and a sympathy for the minutiae of institutional arrangements was the going currency.

The central argument of this thesis is that attempts to configure the scope and function of judicial office dominated Restoration debate, with attempts to subordinate the judiciary to crown or Church the most common, and that in response the Restoration judiciary exercised their office against these rival institutions, emphasising their independence from both by grounding it in temporal and customary concerns. Though the legal regime implemented by the King’s Bench judiciary was confessional, this was a confessionalisation grounded in the temporal concerns of the common law, not the spiritual preoccupations of the Church; less a unification of Church and state than a subordination of Church to state. In making this argument, the thesis follows closely the debate, held in a casuistical idiom, over judicial office, in which a wide range of actors – philosophers, monarchs, pamphleteers, members of parliament, bishops, and common lawyers – attempted to specify the appropriate courtroom comportment of the judge.63 And it reveals the ways in which the common lawyers responded to this debate in their office, how they comported themselves in court in the context of the dispute over how they ought to exercise this office.

The judges who sat on the King’s Bench between 1660 and 1688 largely wielded their office in a manner that precluded subordination to the Church of England and to king and parliament. They did so by elevating the significance of the lex non scripta, those English laws developed through the absorption of custom into common law, and found in the precedents of the common law. Judges and lawyers in King’s Bench drew heavily on precedents in dispute and judgment, and repeatedly affirmed that all customary matters fell within the province of King’s Bench.

62 John Rawls, A Theory of Justice: Revised Edition (Cambridge, MA: Harvard University Press, 1999); Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1999). 63 On the centrality of lawyers to early modern English society, see Wilfrid R. Prest, The Rise of the (Oxford: Oxford University Press, 1991). 25

As we will see, this meant that there were significant consistencies throughout the Restoration when the King’s Bench engaged with the lex non scripta; across the Restoration, judges dealt with matters using consistent legal tests that were developed from precedent, not statute.

A particular feature of this consistency was the regular description of the common law as an exclusively temporal jurisdiction, which sought to redress damages done to English subjects by one another, and guard against breaches of the peace that threatened the state. This was in contrast to the ecclesiastical courts, which cast their work as exclusively spiritual, as the protection of the souls of English subjects. In other words, the King’s Bench judiciary repeatedly affirmed their distance from the preoccupations of the clergy, particularly when administering the boundary between common and ecclesiastical law. The common law could not be subordinate to the Church if its focus was so consistently described as radically different. Indeed, in the hands of some judges, including Matthew Hale, this distinction became a weapon, as they justified trying matters that were once the province of Church courts in common law courts on the grounds that the matters were principally temporal.

Where the Bench dealt with the lex scripta – statute – their work was far less consistent. The reliance of King’s Bench’s on statute law was piecemeal and selective, and this is crucial for understanding how the judiciary exercised their office relative to Church and king and parliament. Statute regarding religious nonconformity had long cast it as an offence that was both temporal, understood as a danger to government, and spiritual, understood as a danger to the souls of the English people and the Church’s work in protecting these souls. In the Restoration, though, this arrangement began to undergo a change, as the Clarendon Code and ensuing legislation increasingly described religious nonconformity in terms of the dangers it posed to the state. When confronted with nonconformists, the Bench described their offences in temporal terms, avoiding the rhetorical configuration of such offences by the Church, who cast nonconformists as enemies to the Church’s salvific function.

Moreover, the variable reliance on statutes in King’s Bench reveals a rejection of models of judicial subordination to the crown. Indictments were often quashed and, more importantly, where indictments under the Clarendon Code were upheld, the evidence does not suggest they were upheld out of a sense of judicial subordination to king and parliament. Rather, these statutes were principally deployed by the judiciary when there was a dispute between king and parliament over this legislation. Both Charles II and James II were explicit in their opposition 26 to the Clarendon Code statutes, and both attempted to revoke or amend the Code through Royal Declarations of Indulgence. And it is in the face of this explicit opposition that we see judges most often grounding judgments in the statutes. This was not a subordinating manoeuvre by the judiciary, but an explicit rebuke to the kings, whose claim to an independent legislative authority they were contesting.

The picture that emerges from this analysis is thus not one of a subordinate judiciary, but one of a judiciary that responded to attempts to configure their office as subservient to king or Church by demonstrating the absence of such subordination. The Restoration King’s Bench judiciary explicitly defined themselves against the Church of England in describing the common law as a temporal jurisdiction contrasted to the spiritual ecclesiastical courts. Moreover, they drew principally on the lex non scripta, developed by judges away from king and parliament, engaging with the lex scripta selectively, and often to weaponise it as a rebuke to the king. The judiciary defended a position of official reciprocity between common law, king and parliament, and the Church of England. All played a part in the implementation of , as the Church administered the spiritual jurisdiction, and king and parliament created legislation, but the pre-eminent position in law was reserved for the common lawyers, who synthesised lex scripta and lex non scripta, chose where to rely on legislation, and administered the boundaries between common and ecclesiastical law.

That the common lawyers posed a limit on sovereign power has been acknowledged by some intellectual historians, if very few, and of these, only Condren recognises that the dispute centred on offices. John Pocock argues that the common lawyers’ reverence for custom constituted a challenge to a ‘doctrine of sovereignty’.64 Alan Cromartie describes arguments for the common law’s impenetrability and its capacity to bind the monarch as ‘constitutionalism’.65 This description captures the contention that the common law was independent and the king was not legally unrestrained, but risks reifying to the level of ideology a claim about the offices of judge and sovereign.

64 J. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1957), 26. All references to this text, unless otherwise specified, are to this 1957 edition. Glenn Burgess also acknowledged dispute over sovereignty’s meaning, though gave less attention to common lawyers: Glenn Burgess, Absolute Monarchy and the Stuart Constitution (New Haven: Yale University Press, 1996), Chapter 3. 65 Alan Cromartie, The Constitutionalist Revolution (Cambridge: Cambridge University Press, 2006), Chapter 1. 27

Though his work principally focuses on European legal systems in general, rather than the common law in particular, Andrew Fitzmaurice has suggested that early modern sovereignty was a subject of dispute, and that a result of this was that early modern states were ‘fragmented’.66 More specifically, Condren argues that the common lawyers posed a challenge to the ‘office of the sovereign’.67 This contention, which captures that the dispute over sovereignty centred on the competing powers of rival offices, is sustained by this thesis, which argues that judicial office was exercised to marginalise the king, who the common lawyers recognised as sovereign.

The thrust of this thesis’s argument, that early modern English sovereignty did not entail a hierarchical power beneath which the entire state was subordinated, but primarily referred to a distinct but limited set of legal powers, shares a similarity with Harold Laski’s work on nineteenth century England. Laski argued that the English state of the nineteenth century was pluralistic, a space of rival juridical authorities – most notably the Church of England – unsubordinated to one another. Laski, though, argued that this juridical contest meant that nineteenth century England was constituted of multiple sovereignties, comparing ‘the sovereignty… vested in the General Assembly’ of the Church of England to the ‘[t]he sovereignty of the State’, for example.68 This thesis instead contends that it was widely accepted in seventeenth century England that the king was the only sovereign, but this sovereignty was constrained by the common lawyers. Seventeenth century English sovereignty thus entailed a marginal legal authority compared to the common law judiciary.69

Condren’s Argument and Authority in Early Modern England performed a ground-clearing exercise as a powerful critique of various flawed historiographic approaches to early modern England, establishing a new basis on which to study early modern English rhetoric: as a function of office. The present thesis is thus a case study in a particular dispute over an office: that of the common law judge. As such, it takes Condren’s claim of a widespread

66 Andrew Fitzmaurice, ‘Context in the History of International Law’, Journal of the History of International Law 20:1 (2018): 5-30, at 18-9; Andrew Fitzmaurice, ‘Powhatan Legal Claims’, in Saliha Belmessous, ed., Native Claims (Oxford: Oxford University Press, 2011), 85-102, at 92, wherein he critiqued John Rice, ‘Escape from Tsenacommacah: Chesapeake Algonkians and the Chesapeake Menace’, in Peter C. Mancall, ed., The Atlantic World and Virginia, 1550-1624 (Chapel Hill: University of North Carolina Press, 2007), 97-140. 67 Conal Condren, ‘Natura naturans: Natural Law and the Sovereign in the Writings of Thomas Hobbes’, in Natural Law and Civil Sovereignty, 61-75, at 63. 68 Harold Laski, Studies in the Problem of Sovereignty (London: Routledge, 1917), 39. 69 Laski flattened these distinctions between judiciary and legislature: Ibid., 55. On Laski, see David Runciman, Pluralism and the Personality of the State (Cambridge: Cambridge University Press, 1997), Chapter 9. 28 presupposition of office as given, and then proceeds to demonstrate in detail how the rhetoric of office was set to work in contest over the functioning of the early modern English state. It thus brings together the rhetoric and exercise of office. For if office rhetoric sought to shape the performance of officeholding, then modes of officeholding were themselves interventions in official dispute. Put more concretely, in a dispute over whether judges were entirely subordinate to the king or Church, the King’s Bench judiciary’s explicit distancing themselves from both was an intervention in the dispute over judicial office; a rejection of their subordination.

One side-effect of the at-times anachronistic dedication among intellectual historians to view past rhetorical disputes as conducted between political theorists and through political theory is that they risk isolating language as a discrete domain. Skinner shows the purported development of a concept of the state in relation to concrete conflicts between rival territorial powers in Italy and throughout Reformation Europe, but his primary context is linguistic, as he compares the ways in which various actors used terms and disputed one another’s usage of terms.70 Skinner himself has described his method as the location of texts within their ‘linguistic context’.71 And indeed, though Skinner’s approach is principally linguistic, he remains exceptional among intellectual historians for the amount of attention he gives to the non-linguistic world.72

This thesis, though, moves beyond linguistic context, for it brings together the exercise of judicial office in King’s Bench with the rhetorical conflict over the office of the judge. Rhetoric of office and exercise of office are used as reciprocal contexts for understanding one another, for they were so closely linked that to separate them out and look only at rhetorical contest in isolation, for example, would be to distort the shape of a contest that was fought in parliamentary speech, polemical tract, pamphlet, legislation, sermon, and courtroom. This approach offers a new line of enquiry for historians of early modern England, in particular,

70 Skinner, Foundations of Modern Political Thought, and more generally Skinner, Liberty Before Liberalism; Quentin Skinner, ‘A Genealogy of the Modern State’, Proceedings of the British Academy 162 (2009), 325-70; Quentin Skinner, ‘States and the Freedom of Citizens’, in Quentin Skinner and Bo Stråth, eds., States and Citizens (Cambridge: Cambridge University Press, 2003), 11-27. 71 Quentin Skinner, ‘Meaning and Understanding in the History of Ideas’, History and Theory 8:1 (1969), 3-53, at 49. 72 For illustrative examples of this linguistic focus, see: John Robertson, The Case for the Enlightenment (Cambridge: Cambridge University Press, 2005); Tuck, The Sleeping Sovereign; Pocock, The Ancient Constitution and the Feudal Law. 29 where the ubiquity of the rhetoric of office meant that exercise and rhetoric were closely intertwined.

Some historians have already begun to bridge these gaps between rhetoric and the practices this rhetoric refers to, pushing back against the inclination among intellectual historians to isolate and reify the linguistic as a discrete category. One of the most compelling and powerful examples of this is the work of Ian Hunter on philosophy in early modern Germany. Across a range of works, Hunter shows the ways in which much of the dispute over philosophy and its relationship to the state focused on the persona of the philosopher and the cultivation of an appropriate philosophical comportment. In this context, dispute over philosophy and the exercise of one’s persona were collapsed into each other.73

Lauren Benton has produced exemplary work demonstrating the ways in which law was deployed throughout empire, often in service of empire’s expansion. And she has shown in this process that legal practices were themselves contributions to how sovereignty was understood.74 Benton’s work, however, remains bound to an unhelpful division of theory and practice; she writes with Straumann, for example, of ‘early modern imperial practice and theory’.75 In doing so, Benton fails to see that it was the practice of officeholders that were themselves engagements with rhetorical dispute; these were not discrete domains.76 Though Paul Halliday’s intensively researched work is less easily classified as intellectual history, given his focus is more explicitly concentrated on court practice, he has related these findings to the disputes over the liberties of English subjects.77

This thesis thus sits within an increasingly vital strand of intellectual history, one that takes seriously the impetus towards contextualisation propounded by historians like Skinner, but develops this line of enquiry in new ways. In taking the disputes over judicial office and the

73 Ian Hunter, Rival Enlightenments (Cambridge: Cambridge University Press, 2001); Ian Hunter, The Secularisation of the Confessional State (Cambridge: Cambridge University Press, 2009). 74 Lauren Benton and Lisa Ford, Rage for Order (Cambridge, MA: Harvard University Press, 2016); Benton, A Search for Sovereignty; Benton and Straumann, ‘Acquiring Empire by Law’. 75 Benton and Straumann, ‘Acquiring Empire by Law’, 5. 76 For an exemplary critique, see Fitzmaurice, ‘Context in the History of International Law’, 18-20. Benton’s response, alleging Fitzmaurice misses her aim to relate ‘juridical thought to legal practice’, ignores that Fitzmaurice was critical of her use of ‘thought’ and ‘practice’ as stable, distinct categories (Lauren Benton, ‘Beyond Anachronism: Histories of International Law and Global Legal Politics’, Journal of the History of International Law 21:1 (2019), 7-40, at 25). 77 Paul D. Halliday, Habeas Corpus (Cambridge, MA: Harvard University Press, 2012), Chapter 6. 30 exercise of this office as its subject, it approaches the Restoration in terms that are intended to minimise anachronism. Rather than seeking to read theory onto early modern rhetoric, or divisions of theory and practice, it suspends any presumptions that these categories had salience for inhabitants of the past. As such, it avoids configuring the past in terms of these modern preoccupations.

It is in part from this opposition to anachronism that the thesis relies on the term ‘rhetoric’ throughout to describe the arguments of the varied partisans on law, state, and sovereignty. In seventeenth century England, the term had two dominant connotations, explored by Condren in an account of Hobbes’s use of rhetoric in Leviathan. For Condren, seventeenth century rhetoric could encompass ‘the persuasive dimension of language’, thus all argument designed to counter, attack, persuade or appeal to an audience, or to specific persuasive techniques, such as the deployment of metaphor or paradiastole, wherein a vice was reframed as a virtue.78 In discussing seventeenth century rhetoric, this thesis uses the term in the first sense.

In doing so, it avoids approaching these debates in terms of ‘languages’, a term that has taken on a particular status in intellectual history, captured in Goldie’s treatment of ancient constitutionalism as a ‘language’ constituting a ‘discursive field’.79 To use ‘language’ thus risks imposing a solidity on a debate that we will see was far more unstable.80 Less an autonomous discursive field, history was deployed in multiple ways, often blended with other claims in the cut and thrust of dispute over judicial office. To describe this contest as one between rival rhetorics of judicial office is thus to attempt a more neutral description of the arguments at issue; an attempt to show that this was a linguistic argument, but to impose no further structure on it beyond this recognition. In doing so, it enables us to capture the messy and divisive state of early modern debate.

Two caveats to the argument presented in this thesis must be admitted. First, though the thesis seeks to make claims about the operation of English law in the Restoration, it ultimately does

78 Conal Condren, ‘On the Rhetorical Foundations of “Leviathan”’, History of Political Thought, 11, no. 4 (1990): 703-20, at 705-8. See also Conal Condren, Thomas Hobbes (New York: Twayne Publishers, 2000), Chapter 6. On Hobbes’s opposition to this latter form of rhetoric, which he termed ‘eloquence’, see Quentin Skinner, Reason and Rhetoric in the Philosophy of Hobbes (Cambridge: Cambridge University Press, 1996), Chapter 7. 79 Mark Goldie, ‘The Ancient Constitution and the Languages of Political Thought’, The Historical Journal 62:1 (2019): 3-34, at 4. 80 For a similar line of argument in relation to ‘republicanism’, also following Condren, see Dmitri Levitin, ‘Matthew Tindal’s Rights of the Christian Church (1706) and the Church-State Relationship’, The Historical Journal 54, no. 3 (2011): 717-40, at 738-9. 31 so on the basis of a relatively small sample size. The thesis is grounded in research into three types of case in the Court of King’s Bench between 1660 and 1688: applications for writs of prohibition or mandamus to the ecclesiastical courts; nonconformity trials; and defamation suits. It does so because it is in these actions that we encounter the judiciary addressing: the relationship between common and ecclesiastical law; legislation regarding the Church that was the subject of contest between king and parliament; and one of the most common non-statutory actions heard in King’s Bench.

This source base enables us to see the ways in which the King’s Bench judiciary distanced themselves from the Church’s jurisdiction, and in some cases aggressively intervened in it, the selective engagement by the Bench with lex scripta regarding religion that was opposed by both Charles II and James II, and their consistent precedent-based administration of the lex non scripta. Though such a source base provides an exemplary means by which to study the Bench’s relationship to the Church of England, the lex scripta, and lex non scripta, a more comprehensive study would look beyond these forms of action to all types of cases heard in King’s Bench. The selection of sources thus represents the first limitation of this work. It is excused on the grounds that the thesis rests on almost 700 cases,81 making the ideal study impossible to execute for a thesis-length project.

The second limitation is that the thesis focuses only on the Court of King’s Bench. The King’s Bench was the highest common law court, and thus sat as an appellate court for all other common law courts, with its rulings intended to be followed throughout the realm. How and to what degree its rulings were followed is an open question, though one that this thesis cannot respond to. To adequately comprehend the full scale of the Restoration common law would require not only an analysis of the work of King’s Bench, but also the Court of Common Pleas, the Exchequer’s common law jurisdiction, and the multi-tiered common law courts throughout the English realm, which at their lowest level were staffed by justices of the peace. This thesis is only a step towards understanding the work of the Restoration common lawyers.

III

81 See Appendix for a full list of cases consulted for this thesis. 32

The thesis is divided into two parts, each of which is then sub-divided into three chapters. The division into parts follows the argument, as Part 1 demonstrates that judicial office was an intensely disputed office and focal point of Restoration debate, and Part 2 shows that the King’s Bench judiciary responded to this debate through an exercise of their office that affirmed its independence. Part 1’s purpose is not to provide a comprehensive survey of debate, but to highlight its principal components, demonstrating the breadth of the contest and revealing which arguments were the most pervasive. To this end, Chapter 1 offers a background to the Restoration dispute on judicial office, beginning in the mid-sixteenth century with Christopher St German’s famous Doctor and Student, a text still printed and read in the seventeenth century.

It follows this dispute up to the Interregnum attempts to reform the common law, a process which the Interregnum parliaments appointed three different committees to enquire into. This discussion takes us through a wide array of sources, including parliamentary disputes, pamphlets, statutes, and the proceedings of Charles I’s trial, and features actors outside the law and common lawyers themselves. As we will see, the tendency among those outside the law was to assert the subordination of judicial office to external institutions, generally the king, but also parliament, the English people, or a clerical elite. The common lawyers largely defended themselves against these attacks, claiming their office was independent because it was grounded in ancient laws that only they could understand.

In Chapter 2 we turn to the Restoration dispute over judicial office, focusing on those external to the common law who sought to configure the office of the common law judge. Consistent with Chapter 1, those untrained in the common law tended to attempt the common law’s arrogation to institutions beyond it. The most common sources of judicial subordination were to the king or Church of England, as judicial office was cast as either a servant of monarchy or of divine will, interpreted by the Church’s clergy. The liberties of subjects also became a key concern that judicial office was claimed to preserve; in the houses of parliament and pamphlets, judges were excoriated where they appeared to deny these liberties. This chapter also gives particular attention to the works of Thomas Hobbes, a consistent opponent of the judiciary who sought through multiple texts widely read in the Restoration and since to cast judicial office as entirely subordinate to the sovereign king.

Chapter 3 looks at the Restoration responses of the judiciary to these attempts to subordinate judicial office. In a particularly antagonistic climate – twenty King’s Bench justices were 33 dismissed by Charles II and James II throughout the Restoration – the judiciary offered a range of articulations of their office, often clearly intended to protect against dismissal. Numerous judges defended their office as subordinate to the king, claiming that their role consisted in defending the king and his prerogative. Other judges – indeed, in some cases, the same judges when at less risk of dismissal – asserted the independence of the judiciary on the basis that judges were required to balance between the liberties of subjects and prerogatives of the king, a denial of subordination as they affirmed an equal dedication to defending the king’s subjects. Of all Restoration judges, Matthew Hale was the most assertive and consistent in defending common law independence, and for this reason, the chapter gives particular attention to his work, including an unpublished manuscript of Hale’s held at Library. Like Hobbes, Hale produced multiple works on judicial office, and though his were not read during the Restoration, they have been read extensively since.

In so demonstrating the breadth and intensity of the dispute over judicial office from the sixteenth century to the Restoration through the use of a wide source base, looking both at the various actors outside the law and within it who sought to shape judicial office, Part 1 offers a substantial rebuke to the source selection typical among intellectual historians. A by-product of the historiographic impetus towards configuring early modernity in terms of political theory is a dividing of texts in terms of those works historians have found easy to describe as theoretical, and thus the appropriate subject matter of intellectual history, and those deemed non-theoretical and thus beyond the discipline’s purview.

But if, as this thesis contends, the ascription of political theory is a mislabelling in regards to early modern England, for it was the rhetoric of office that dominated, then this division is false. Participants in the dispute over judicial office were multiple and varied, meaning that we can read the works of Hobbes, Hale, and Bacon alongside sermons, pamphlets written in verse, and speeches in parliament. If these actors all took different approaches to the consideration of office, they all focused on judicial office and thus contributed to the same dispute. The expansion of the subject matter appropriate to the intellectual historian is an increasingly fertile 34 project,82 but one that remains marginal to the discipline, particularly among intellectual historians of early modern England.83

In Part 2 we expand our source base further, for here we turn to the lex scripta and lex non scripta to investigate the ways in which the judiciary engaged with the dispute over their office through their exercise of office. The chapters included in this section cover debates between king, Lords, and Commons over legislation, the text of statutes, and recorded judgments in ecclesiastical courts and the Court of King’s Bench. In order to elucidate the ways in which the dispute in Part 1 played out in law, Chapter 4 establishes both ecclesiastical and statutory approaches to law, recovering the particularities of Church and legislative language in configuring offences.

In so doing, it provides a background to the succeeding chapters, detailing the history of the offence of heresy and the relationships between crown and Church, and explicating the Restoration legislation and the accompanying disputes regarding religious nonconformity. Beginning in the late thirteenth century, it reveals how the ecclesiastical offence of heresy was defined, initially as an offence both spiritual and temporal, which the Church courts had a wide latitude in administering. When legislation sought to curtail this latitude, the ecclesiastical courts responded by ignoring statute, affirming their own jurisdiction as independently grounded in the administration of spiritual concerns.

With the disestablishment of the Church of England in the Civil Wars, statute cast blasphemy as a temporal threat, and this language came to dominate the legislation against religious nonconformity in the Restoration. Though some statutes retained the earlier language of spiritual and temporal danger, the debates over penal laws regarding religion and the laws themselves increasingly treated nonconformity as a danger exclusively temporal, the effect of which was to deny the Church a position of juridical authority. These disputes also highlighted

82 See, for example: Chris Hilliard, The Littlehampton Libels (Oxford: Oxford University Press, 2017); Chris Hilliard, English as a Vocation (Oxford: Oxford University Press, 2012); Alexander Cook, ‘The Politics of Pleasure Talk in 18th-Century Europe’, Sexualities 12:4 (2009), 451-66; Andrew Fitzmaurice, ‘The Expansion of International Franchise in the Late Nineteenth Century’, Duke Journal of Comparative and International Law 28:3 (2018), 449-62. 83 For notable exceptions, see: Condren, Argument and Authority in Early Modern England; Clare Jackson and Patricia Glennie, ‘Restoration Politics and The Advocates’ Secession, 1674-1676’, The Scottish Historical Review 91:1 (2012), 76-105; Clare Jackson, ‘Conceptions of Nationhood in the Anglo-Scottish Union Debates of 1707’, The Scottish Historical Review 87:2 (2008), 61-77; Clark, English Society 1660-1832; Rose, Godly Kingship in Restoration England. 35 a conflict between king and parliament over who could make law on religion: the king alone; or king and parliament together.

Chapter 5 turns to the work of the Restoration King’s Bench and its engagement with the ecclesiastical courts and administration of the lex scripta recounted in Chapter 4 regarding nonconformity. Here, we see how contingent the process of implementing Restoration law was. Although all justices contended the common law was a jurisdiction that administered temporal and customary matters, while the ecclesiastical courts were a spiritual jurisdiction, there was substantial divergence in how these distinctions were applied. Reliance on the lex scripta also varied between justices, but judges more often upheld convictions under the penal laws governing nonconformity at times when Charles II or James II had made their opposition to these laws explicit; the lex scripta was principally wielded against the king.

Finally, Chapter 6 confronts King’s Bench’s relationship with the lex non scripta, those laws made beyond king and parliament and recovered and adapted by common lawyers through the reading of precedent. It focuses on the common law action of defamation, one of the most common forms of action in the Restoration. The ecclesiastical courts also had a defamation jurisdiction, so the Bench were especially active in these cases in articulating the scope and function of their jurisdiction as exclusively temporal. This part of Chapter 6 reveals the consistency of the action of defamation across the Restoration; the judiciary applied identical tests, demonstrating a stability built on close adherence to extant case law.

The chapter closes with a case study of the most famous defamation suit of the Restoration, the trial of John Taylor by the King’s Bench under Hale in 1675. Long treated as the first conviction for blasphemy under common law, we will see that not only was Taylor’s offence recorded as defamation, but Hale’s judgment mirrored the language of the common law’s defamation jurisdiction. Crucially, in so locating the offence within the lex non scripta, Hale avoided the extensive lex scripta that could have been mobilised to convict Taylor, instead relying on an action that cast Taylor’s offence as exclusively temporal; a repudiation of king and parliament, and the Church.

For case records, the principal source used is the English Reports, the early-twentieth century compilation of published court reports from the thirteenth to the nineteenth centuries. King’s Bench produced its own manuscript record of cases heard, and some judges, like Hale, also 36 kept their own record of cases, and manuscripts will be used to supplement the material drawn from the English Reports. The decision to rely principally on the printed court reports is twofold. First, the key focus of this thesis is on the content of the judgments handed down; how judges developed their judgments, and the sorts of sources they, and the lawyers who appeared before them, deployed in courtroom argumentation.

The manuscript records of King’s Bench include a record of the decisions of the court, as well as a procedural record of the steps of a case, but not a detailed transcript of courtroom arguments. It is these arguments which are key to Part 2 of the thesis, for they are crucial to understanding how the Bench articulated the relationships between common and ecclesiastical law, and cast themselves relative to lex scripta and lex non scripta. Second, the manuscript records of King’s Bench during this period are largely in too poor a condition to form a reliable source base.84 Though some documents are legibly preserved, most are torn or too badly damaged from years spent in the .

In concluding, I will draw out some broader reflections on the stakes of this work. As I have held in this introduction, this thesis offers an exploration of a particularly significant early modern office; the office of the common law judge. And it uses this analysis to repudiate contemporary scholarship among intellectual historians that has understood Restoration England in terms of a model of sovereignty characterised by an exclusive law-making power, through which was effected a confessional regime in which Church and state were united. As we will see, though the judiciary contributed to implementing a confessional regime, they did so through affirming the independence of their office, grounding it in exclusively temporal and customary concerns that exceeded the limits of sovereign office.

This history has some important legacies. Following the ascension of William and Mary to the throne in 1689, after James II’s ‘abdication’, legislation was passed instituting greater protections against dismissal for the judiciary. With better protections against judicial dismissal, the key means by which both Charles II and James II sought to control the judiciary, the judiciary received a degree of legal autonomy. Though the language of the separation of powers – of a state constituted by an independent judiciary, legislature, and executive – arose

84 Paul Halliday relies on King’s Bench manuscripts, but he focuses on a single writ and his work extends to 1800, the records for which are in better condition (Halliday, Habeas Corpus). 37 in the late eighteenth century, we can see here the formation of the legal framework which made such an articulation of the state possible. The history this thesis uncovers is a history in which we see the judiciary asserting their independence, and then receiving a degree of support for this in legislation.

38

Part 1: The Rhetoric of Common Law Judicial Office

39

Part 1: Introduction

The dominant preoccupation among historians who have given attention to the common lawyers has been the study of the ancient constitution. Though defined with some variations, the ancient constitution was generally considered the unwritten agreement or series of agreements between subjects and king, formulated in England’s distant and now forgotten past. It was an immemorial contract that purportedly established the relative limits of the king’s prerogative and subjects’ liberties. Seventeenth century debate over the limits of monarchical power often invoked the constitution, with common lawyers, in particular, arguing that the liberties granted in the constitution were inviolable. Defenders of the king’s unrestrained sovereignty responded that the constitution empowered the king, who possessed an unlimited prerogative, or argued that the constitution was no longer in force.

The key flaw of ancient constitutional scholarship is that these historians have conceived of the ancient constitution not as a device for arguing about the exercise of judicial office, but as part of the history of historiography. The classic study of the ancient constitution remains Pocock’s 1957 work The Ancient Constitution and the Feudal Law. There, Pocock told a story of the steady attenuation of the ancient constitution as a means of understanding English history. For Pocock, the early seventeenth century was dominated by common law accounts of the ancient constitution that emphasised the continuity between past and present, defending an image of a law grounded in customs that extended back into the immemorial past.

By mid-century, though, the ancient constitution had depleted to an assertion of parliament’s antiquity, used to ground claims for parliament’s law-making power and to attack declarations that the king could make law alone. Though countered by royalists who attempted to show the relatively recent creation of the House of Commons, the Glorious Revolution in 1688 brought the triumph of the view of a timeless and thus necessary parliament. With the decline of history’s importance in political debate in the eighteenth century, Pocock claimed we arrive at the end of the ‘first great age of modern historiography’, in which the present was to be arranged based on the laws of the past.1

1 Pocock, The Ancient Constitution and the Feudal Law, 245. 40

In proffering this account, Pocock utilised a tactic of reifying past actors into historiographical theorists, regardless of whether their primary aim was to produce an account of the past. Pocock presents The Ancient Constitution and the Feudal Law as a contribution to the ‘history of historiography’,2 curated not only through an investigation of those works termed ‘history’, but through a search through scattered texts for anything he deemed to be ‘historical thought’.3 To this end he bundles his various actors into historiographical factions. Central to our focus here, the Restoration dispute between Thomas Hobbes and then-King’s Bench Chief Justice Sir Matthew Hale is conceived with the disputants as ciphers for historiographic factions. Hobbes represented the ‘theory of conquest’,4 the claim that the 1066 Norman invasion annihilated the ancient constitution such that law-making became a power of the crown. Hale was exemplary of the ‘[c]ommon law mind’, his work ‘common-law historiography’, for he asserted England had existed largely unchanged since time immemorial, with 1066 not a conquest breaking the link to an ancient past but a continuation of English law consistent with this past.5

Though subsequent scholarship has added wrinkles to Pocock’s account, these historians have pursued similar reifying moves upon their source material. Skinner, for example, argued that where Pocock had found scant evidence of royalists beyond Hobbes arguing that the Norman invasion constituted a conquest, this claim was common in the works of chroniclers of medieval England.6 As in Pocock’s account, the work of the common lawyers is subsumed by a focus on historiographic factions. Their defence of the ancient constitution is evidence they were among those perpetuating a ‘whig mode of thought’, defined in particular by the denial that England experienced a conquest in 1066.7 Commenting on the dispute between Hobbes and Hale, Skinner invoked theory to describe Hobbes as propagating ‘conquest theory’,8 while he

2 Ibid., 8 3 Ibid., 7, 6. 4 Ibid., 149. 5 Ibid., 30, 170. 6 Quentin Skinner, ‘History and Ideology in the English Revolution’, in Visions of Politics, 3: 238-63, at 241. Pocock responded that his claim is that few writers before 1640 argued from conquest (J. G. A. Pocock, The Ancient Constitution and the Feudal Law, Second Edition (Cambridge: Cambridge University Press, 1987), 283). This is dubious given Pocock’s attention to Hobbes for his purportedly exceptional use of conquest after 1640 (Pocock, The Ancient Constitution and the Feudal Law, 149). 7 Skinner, ‘History and Ideology in the English Revolution’, 263. Whereas Pocock sees variations between common law and parliamentary ancient constitutionalism, Skinner flattens ‘Whig’ history, ‘common law’ history, and ‘parliamentary’ history into a single historiographic position (Skinner, ‘History and Ideology in the English Revolution’, 238-41). 8 Ibid., 254. 41 refers to Hale’s arguments in favour of immemorial custom as contributions to the field of ‘whig historiography’.9

Like Pocock, too, Skinner located the stakes of his account in historiography – acceptance of Whig history constituted the victory of ‘political propaganda in historical dress’10 – and theory. For Skinner, the ‘whig attitude to political life’ suppressed alternative visions of politics, particularly those emphasising ‘human equality’, ‘natural rights’, and ‘utility’.11 Though presumably substantial stakes for Skinner, the disputants on the ancient constitution appear on a relatively abstract plane of conflict. Skinner’s interest in them focuses on their apparent historiographic accuracy or conceptualisation of politics, rather than the immediate significance of their arguments to everyday life in Restoration England.

Mark Goldie acknowledged that law was at issue in the dispute between Hale and Hobbes,12 but saw historiography as their central disagreement, approaching their debate in a summary of scholarship on the ancient constitution in which he described them as deploying ‘partisan historiography’ against one another.13 For Goldie, the seventeenth century ‘political language’ of historiography constituted an independent ‘discursive field’.14 Given this discrete status as an autonomous field, scholars were justified in isolating the rhetoric of history in early modern England and studying it as an independent site of debate. Such study, he claimed, was a contribution to the ‘history of historical thought’.15

The problem with reading these debates as historiographic or theoretical dispute is that it conscripts Hale, Hobbes, and their contemporaries to a modern historiographic agenda; the full force of Restoration polemic over judicial office is occluded in favour of a focus on the subsidiary debate over the ancient constitution. These Restoration debates were not principally disagreements over England’s history or theoretical contest. Rather, history was one of a

9 Ibid., 239. 10 Ibid., 263. 11 Ibid. For the criticism that Skinner’s alternatives are equally narrow, see Ellen Meiksins Wood, ‘Why it Matters’, London Review of Books 30:18 (2008), 3-6. 12 Mark Goldie, ‘The Ancient Constitution and the Languages of Political Thought’, The Historical Journal 62:1 (2019): 3-34, at 20. 13 Ibid., 7. 14 Ibid., 4. 15 Ibid., 7. Scholarship on the ancient constitution is littered with similar reifications: Glenn Burgess, The Politics of the Ancient Constitution (Pennsylvania: Penn State University Press, 1993), Preface; Janelle Greenberg, The Radical Face of the Ancient Constitution (Cambridge: Cambridge University Press, 2001), 2, 4. 42 number of means with which to dispute judicial office. To argue for a law of immemorial custom was to argue that judicial office required reaching into the mists of time, emerging with an understanding of the customary in English life, and adjudicating in accordance with what was recovered; a process that none but judges could conduct adequately, given their specialised training. To argue against the ancient constitution, and in favour of sovereign will, was to suggest that judicial office derived its power entirely from kingship, and that the function of the judge was exclusively to carry out the king’s will. The locus of dispute, in short, was the appropriate exercise of judicial office.

That judicial office was so extensively disputed ought to be unsurprising given that judges were responsible for dispensing law, both through statutory interpretation and the creation of laws through the process of precedent adaptation. Indeed, this period preceded the legislative expansion of the eighteenth century; most English law in the sixteenth and seventeenth centuries was developed within the common law, not passed as statute.16 Travelling around the country in assize courts, judges also provided one of the most direct means by which English subjects experienced the Restoration regime. To treat Hobbes, Hale, and others engaged in these debates as historiographic or theoretical combatants neutralises the extent to which this was a contest over how the law was deployed, and was thus a contest directly concerned with the governance of English subjects. This debate was an immediate and pressing contest over how judges exercised their office in court, a subject central to how the Restoration regime functioned and how English subjects experienced this regime day-to-day.

In elucidating the rhetorical contours of judicial office as these were disputed between the sixteenth century and the Restoration, these chapters will emphasise two points. First, judicial office was a subject of intensive and understudied polemicising. Second, a hierarchical account of sovereignty was a partisan approach to judicial office; one deployed against rival accounts that marginalised the sovereign king in relation to clerical or judicial expertise. Debate over the ancient constitution will be treated as the marginal dispute it was; one means of attempting to configure the appropriate courtroom comportment of a common law judge, but far from the only one.

16 P. D. G. Thomas, The House of Commons in the Eighteenth Century (Oxford: Oxford University Press, 1971), 61. 43

Chapter 1: The Pre-Restoration Dispute over Judicial Office

Debate over common law judicial office, and in particular over the requisite reasoning processes judges were to undertake when adjudicating upon a case, had a long history in England. Well before the seventeenth century, jurists and judges had penned extensive treatises on the nature and content of the English common law, on the powers of the crown relative to the common law, and on the work of the judiciary. These texts remained relevant in the seventeenth century as a juridical repository for their accounts of the historic common law and customs of the realm. In the twelfth century, the Tractatus de Legibus et Consuetudinibus Regni Anglie was published. The work was long considered to be by Ranulf de Glanvill, Chief Justiciar under Henry II, but scholarship has increasingly cast doubt on this given the paucity of available evidence.1

In the thirteenth century, published De Legibus et Consuetudinibus Angliae, which sought in part to organise the English common law in line with continental . Bracton was himself a judge under King Henry III, and his book revealed a detailed knowledge of the practicalities of English law.2 One of the texts on the common law most significant in the seventeenth century was ’s posthumously published treatise known as Littleton. Littleton spent much of his career in the Court of Common Pleas, serving first as a clerk, then as a justice from 1466 to his death in 1481. Littleton’s treatise was a standard manual for common lawyers by the sixteenth century, and was central to the teaching of the common law in the Inns of Court.3 Its popularity expanded further in the seventeenth century, when it formed the basis for the first volume of King’s Bench Chief Justice Edward Coke’s Institutes.

As we will see in this chapter, which focuses on debate over judicial office from the sixteenth century to the end of the Interregnum, there was a rich and extensive commentary on the

1 John Hudson, ‘Glanville [Glanvill], Ranulf de (1120s?-1190), justiciar’, Oxford Dictionary of National Biography (hereafter ODNB) (2007), http://www.oxforddnb.com/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-97800198614128-e-10795. 2 There are also questions of Bracton’s authorship of De Legibus: Paul Brand, ‘Bratton [Bracton], Henry of (d. 1268), justice and supposed author of the legal treatise known as Bracton’, ODNB (2008), http://oxforddnb.com/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-9780198614128-d-3163. 3 J. H. Baker, ‘Littleton [Lyttleton], Sir Thomas (b. before 1417, d. 1481), justice and legal writer’, ODNB (2007), http://www.oxforddnb.com/view/10/1093/ref: odnb/9780198614128.001.0001/odnb-9780198614128-e-16787. On the Inns, see: Wilfrid R. Prest, The Inns of Court under Elizabeth I and the Early Stuarts, 1590-1640 (London: Longman, 1972); J. H. Baker, The Third University of England (London: Selden Society, 1990); Jayne Elisabeth Archer, Elizabeth Goldring, and Sarah Knight, eds., The Intellectual and Cultural World of the Early Modern Inns of Court (Manchester: Manchester University Press, 2011). 44 common law during this period. It was contributed to by lawyers themselves, and others including MPs, pamphleteers, and kings. Though these debates reached fever-pitch in the Restoration, the earlier contests over judicial office established many of the linguistic contours along which debate in the later seventeenth century would move. Moreover, commentary on the common law and judicial office reveals that these subjects were not, as their occlusion in scholarship would have us believe, marginal. Rather, these subjects were considered central to the most significant debates in the English realm, such as James VI and I’s claim to the throne, and the Civil Wars’ settlement.

This centrality accounts for the intensity of partisan specifications of judicial office, as a variety of groups sought to arrogate the law to their cause. The judiciary were subjected to the sectarian tensions of seventeenth century debate. In the hands of the monarch and defenders of the monarch’s untrammelled legal right, they were servants of sovereignty; among religious enthusiasts, subject to the priestly interpretations of divine will; while others advocated for the judiciary’s subordination to parliament, or the will of the English people. In some cases this attempted subordination amounted merely to a claim that the law as it stood was a product of kingship, and thus could not be turned against the king. In more extreme cases, the entirety of the common law was to be rewritten, with judicial office grounded in new principles.

The judiciary responded principally by defending their independence against any form of subordination. This defence consisted typically of asserting that they were privy to an exclusive form of reasoning that required they blend an array of sources, from customs of the realm, previous judgments, and statutes, in developing their judgments. There was a two-pronged polemic at work here. First, in noting that statute was only one source of law among many, the judiciary countered any suggestion that the king or parliament alone made law. Though the office of sovereign entailed a power to make laws, this power was not exclusive. Second, in arguing for the complexity entailed in collating and interpreting disparate legal sources when providing judgments, the judiciary contended that their practice was too complex to permit intervention by the uninitiated. This complexity was also a necessity for peace; reordering the law would only bring danger. In short, given the plurality of legal sources, and the unique skills required to interpret them, judicial office was incapable of subordination.

The texts covered in this chapter should be in no way considered an exhaustive account of pre- Restoration debate on judicial office. Indeed, given the vitality of this debate, any exhaustive 45 account of it would require its own book. The attempt herein, rather, is to reveal some of the more enduring rhetorical tropes of the contest over judicial office. As we will see in the ensuing chapters, these texts were not only read in the Restoration, but the rhetoric of judicial office advanced in them was heavily relied upon and built upon by Restoration combatants. This chapter will be divided into two sections, the first focusing on the sixteenth century to the start of the Civil Wars, and the second on the Civil Wars and Interregnum period.

I In 1528, Christopher St German published a pamphlet that has come to be known as Doctor and Student, an extended dialogue between a doctor of divinity – a civil lawyer, practicing in the ecclesiastical courts – and a student of the common law. An exploration of the relationship between the common law and the courts of conscience, the text was, by the seventeenth century, a repository for common lawyers, given its detailed explication of an array of legal precepts.4 Although ostensibly a dialogue, much of St German’s text consists of his two parties agreeing with one another on the shared origins of their respective jurisdictions. The argument pressed throughout by St German was that the common law could not be subordinated to monarchical or clerical control.

St German’s argument consisted of a two-step approach, in which he first located the law in a wide array of sources impossible for any single institution to control, and second located the comportment necessary to sift through and interpret this material within the mind of the judge. The first step entailed the dismissal of any notion that the sovereign king held a position of superiority over the common law courts. St German’s student explained that the common law had six distinct grounds: the law of reason, the law of God, ancient customs practised throughout the realm, maxims that have always been taken for law, customs localised within particular counties, and statutes of sovereigns and parliament.5 The key point here was that statutes of king and parliament were merely one among six grounds of the law. The force of St German’s polemic was that the ‘Soueraigne Lord the kinge’ was only one source of law among many; not only did the sovereign lack an exclusive right in law-making, but was a marginal figure to the common law.6

4 R. H. Helmholz, ‘Christopher St. German and the Law of Custom’, The University of Chicago Law Review 70:1 (2003), 129-139, at 130. 5 Christopher St German, The Dialogue in English, Betweene a Doctor of Divinitie, and a Student in the Lawes of England (London: 1607), 9, 11, 12, 16, 21, 22. 6 Ibid., 22. 46

The second step of St German’s argument began with the claim that all legal sources were united in having been willed by God; his legal hierarchy positioned divinity at the apex of law, not sovereignty. In the initial exchange between doctor and student, St German’s doctor explained that, as ‘almightie God is the creator and maker of all creatures’, he is the ‘governour of all deeds’, for his wisdom ‘mov[es] al things… to a good end’.7 This principle, that all actions of man were derived from God, was the ‘law eternall… the first law’, so named for it was the source upon which all laws, including the common law, were built.8 Its consequence was that any custom, maxim, or statute contravening the law of reason or the law of God was void.9 Though distinct from the law of God, the law of reason was also of divine origin. The law of God referred to those precepts explicitly passed by God to man through ‘’ intended to reveal the ‘way to the felicitie eternall’.10 The law of reason was a ‘gift’ from God,11 related to ‘the felicity of this life’.12

Crucially, God’s status as the source of law was no attempt to install the clergy as arbiters of the common law, subordinating judicial to ecclesiastical office. Indeed, as Richard Rex shows, St German exhibited a ‘profound anticlericalism’.13 For ‘sinderesis’, the particular term St German used to refer to man’s divinely gifted capacity to reason, that ‘naturall power of t[he] soule… stirring it to good, & abhorring evil’, existed in all men, and was thus already possessed by judges.14 In short, the necessary comportment for adjudication – the capacity to synthesise disparate legal sources, and evaluate them in terms of the laws of God and reason to produce a judgment – was one possessed by a judiciary that stood alone, unsubordinated to other institutions.

Debate over judicial office intensified in the late sixteenth and early seventeenth centuries, as an increasingly wide array of parties entered the rhetorical fray. In 1598, King James VI of

7 Ibid., 3. 8 Ibid. 9 Ibid., 22, 4. 10 Ibid., 6. 11 Ibid., 25. 12 Ibid., 5. 13 Richard Rex, ‘Christopher St German on Scripture, Councils and Monarchs’, Reformation and Renaissance Review 16:3 (2014), 266-79, at 272. On St German’s anticlericalism and debates with , see: Samuel Gregg, ‘Legal Revolution: St. Thomas More, Christopher St. German, and the Schism of King Henry VIII’, Ave Maria Law Review 5:1 (2007), 173-206, at 194; Thomas More, The Debellation of Salem and Bizance (London: 1533). 14 St German, The Dialogue in English, 24. 47

Scotland, who would become James I of England in 1603 with the death of Elizabeth I, published The True Law of Free Monarchies. This brief tract extolled the divine origins of monarchy evidenced in English law, concluding that the king had the sole authority to make laws. James’s divine right account of monarchy hinged on the claim that ‘Monarchie is the true paterne of Diuinitie’, for which he provided a series of scriptural references.15 His coronation oath demonstrated that because of monarchy’s scriptural undergirding, administration of the law was a kingly duty: ‘in the Coronation of our owne Kings, as well as of euery Christian Monarche, they giue their Oath, first to maintaine the Religion presently professed within their countrie… And next, to maintayne all the lowable and good Laws’.16

Crucially, these laws were all made by kings, and it is here we can see James’s attack on St German’s argument. Whereas St German had argued for a diminished position for the sovereign, asserting that the king was only one law source among many, James claimed all laws ‘are made by himselfe, or his predecessors. And so the power flowes alwaies from himselfe’.17 The implication for judicial office was clear. In St German’s account, judges drew on an array of legal sources in a process that denied pre-eminence to any law-making institution, giving judicial office a degree of independence. In James’s account, not only did he hold the throne by a divine right that was recognised in English law, but because this law flowed in totality from the sovereign, judicial office was entirely subservient to monarchical office.

In James’s rendering of a judiciary subordinated to monarchy, the scope of judicial office’s exercise was limited to exclusively following the king’s laws. Further, the judiciary could not use these sovereign-made laws against the king, for he was above the laws. The king ought to conform his behaviour to law as a good example to his subjects, but to do so was not necessary, and certainly provided no grounds for his subjects to rebel. In James’s words, ‘although I haue saide a good King will frame all his actions to be according to the law; yet is hee not bound thereto but of his good wil, and for good example-giuing to his subjectes’.18

James’s pamphlet is particularly illuminating, for it demonstrates the over-emphasis applied by scholars to historiographical debate at the expense of focus on the conflict over judicial office.

15 James VI and I, The True Law of Free Monarchies (Edinburgh: 1598), 3. This edition is not numbered after the fourth page, but I footnote based on how pagination would have proceeded. 16 Ibid., 4. 17 Ibid., 17. 18 Ibid., 18. 48

For Pocock, such defences of monarchical power were deployed against ‘constitutionalists’ in a debate in which constitutionalists wielded ‘historical myth’ against monarchists deploying ‘historical criticism’. Constitutionalists sought to show that law historically preceded monarchy, which entailed arguing that law was of ‘infinite antiquity’, a claim attacked on historiographical grounds by monarchists.19 But James barely relied on argument from history to buttress his position. He made only two historical references in his pamphlet, and neither lent his argument significant weight. When asserting the unique capacity of kings to make laws, James supported his argument by noting that ‘when the bastarde of Normandie came in England, and made himselfe King… he gaue the law, &… changed the lawes’.20

Slightly later, he claimed that people have always been bound to serve their kings – those living now are ‘not only bound to themselues, but likewise to their lawfull heires & posterity’ – given that ‘the lineal succession of crownes being begun among the people of God, and happely continued in diuers Christian common welthes’.21 Though in both examples a historical claim was deployed to support the king’s capacity to make law and receive the obedience of his subjects, these claims were hardly central to James’s argument. Rather than resting on historiography, James’s pamphlet largely addressed the scriptural evidence for monarchy’s divinity; an element of seventeenth century debate almost entirely ignored by scholars of the ancient constitution.22

The reason historiography was so minor to James’s thesis was that he was engaged in no abstract historiographical debate, but was confronting a pressing legal contest. As Peter Lake shows, James was concerned with the legal basis of succession. As the likely successor to Elizabeth, James sought to counter the contentions of those like Robert Parsons and George Buchanan who argued that the English people possessed a capacity to amend English law, and in particular the succession, for the common good.23 Parsons’s claim was that the monarch was

19 Pocock, The Ancient Constitution and the Feudal Law, 16-7. 20 James VI and I, The True Law of Free Monarchies, 16. 21 Ibid., 27. 22 Pocock and Skinner both downplayed the religious sympathies of their subjects and the importance of religious polemic in shaping the context in which their subjects wrote. Rose notes this, too: Rose, ‘By Law Established’, 34. See also De Krey, ‘Rethinking the Restoration’, 64. On the chronicles, which Skinner cites, as religious texts, see David Womersley, ‘Against the Teleology of Technique’, Huntington Library Quarterly 69:1-2 (2005), 95- 108, at 99-108. Pocock attempted to address his undue secularisation in the 1987 edition of The Ancient Constitution. 23 Peter Lake, ‘The King (The Queen) and the Jesuit: James Stuart’s True Law of Free Monarchies in Context/s’, Transactions of the Royal Historical Society 14 (2004), 243-60. 49 bound by the law, which reflected the people’s will, and the succession was thus subject to popular amendment.24 The True Law was a repudiation of this argument, contending instead that the laws of succession that demonstrated James’s rightful claim to the throne, like all law, was beyond the control of the English people.

In only considering James’s text a response to pamphleteers like Parsons and Buchanan, though, Lake’s account of The True Law provides an inadequate treatment of the field of debate James was responding to. For James’s response, in its emphasis on the king as unitary source of law, was also clearly a counter to legal texts like that by St German, which held high status in the courts of the realm, and sought to marginalise the sovereign’s role in law-making. The lacuna in Lake’s account regarding the law is one that is common to scholars of this period, and we can see the problems engendered by it at their starkest here. Succession was a question of law – a claim regarding how the law worked, and how it was created. To try and tell the story of the battle over succession exclusively through the polemics of Parsons, Buchanan, and James VI and I is flawed, for it ignores those central to the law and operating within it – that is, lawyers – for the views of those outside it.

Johann Sommerville provides one of the few historiographic voices to have recognised that James’s account of hierarchical sovereignty was an opponent of common law accounts of law- making and the king’s legal power.25 In doing so, he offers a more thorough contextualisation of the relationship between these texts. Moreover, he does not attempt to contrive an historiographic position for James’s The True Law as Pocock does, acknowledging that James’s focus was clearly on developing a particular account of the sovereign’s relationship to law. Weaknesses remain, though, for despite Sommerville’s stated intention to link political practice with rhetoric, he does this by reifying the dispute James was involved in as ideological and theoretical.26 Sommerville remains, that is, tied to a binary of theory and practice. As we can see, this rhetorical conflict was office-centred, a rhetoric that focused on rival accounts of appropriate judicial practice. To describe it as ideological or theoretical, terms none of the disputants used to describe their contributions, is to miss the explicit focus on how judges conducted themselves in courtrooms.

24 Ibid., 249. 25 Johann P. Sommerville, Royalists and Patriots (Abingdon: Routledge, 2014), Chapters 1 and 3. 26 For example, Ibid., 2-3. 50

Indeed, though James’s counter to St German’s account of judicial office was implicit, rather than explicit, James’s supporters and opponents unequivocally sought to centre judicial office in this contest over the extent of sovereign power after James was crowned king of England. This debate was driven by two figures: Edward Coke, Chief Justice of the Court of King’s Bench; and Francis Bacon, who served under James in a range of roles, including as Attorney General and . Coke, in particular, has been central to scholarship on the ancient constitution understood as political theory or historiographical artefact,27 and it is necessary here to rescue him from these distortions, restoring his focus on judicial office.

Coke came into direct conflict with James and Bacon over the trial of Edmund Peacham, a preacher who died in jail in 1616 while awaiting execution for treason. Peacham was arrested in 1614 over a dispute with his bishop, and upon searching his house, authorities uncovered a series of undelivered sermons viciously critical of James and his advisors.28 Because Peacham’s sermons had not been given nor published, it was unclear how to legally proceed against him, and the case was turned over to the judiciary – the judges of the three senior common law courts, the Chancery, the Court of Common Pleas, and the Court of King’s Bench – to establish the appropriate legal response.

Attempting to ensure a conviction for treason, James sent Bacon, then Attorney General, to meet individually with each member of the judiciary.29 Though such meetings with the monarch or the monarch’s representative and the judiciary were not uncommon, it was exceptional to request to meet with the judges individually. Coke, then the most senior judge in England as King’s Bench Chief Justice, refused individual meetings. The basis for his refusal, Coke claimed, was that the judiciary would act only as a collective for this ensured judicial independence, while James’s demands constituted an attempt at monarchical interference in judicial work.30 It was a refusal, in other words, couched in a claim about office: the demand to meet with the judges individually threatened the judiciary’s capacity to act in unison as bearers of the same office. Peacham eventually stood trial and was found guilty of

27 Pocock, The Ancient Constitution and the Feudal Law, Chapter 2; Burgess, The Politics of the Ancient Constitution, Chapter 1. 28 I take this account of Peacham’s arrest and death, and the subsequent conflict between James and Bacon, and Coke from Todd Butler, ‘The Cognitive Politics of Writing in Jacobean England: Bacon, Coke, and the Case of Edmund Peacham’, Huntingdon Library Quarterly 78: 1 (2015), 21-39, at 21-2. 29 Ibid., 23, 27. 30 Ibid., 28. 51 treason, a victory of monarch over judiciary but not one that Coke clearly accepted, given his continued antagonism towards suggestions of judicial subservience.

Bacon, James, and Coke clashed again in 1616 over a request from James that the judges delay judgment in a case involving a writ of commendam, a writ transferring ecclesiastical property from one party to another. Once more, Bacon was tasked with carrying out James’s directives, bringing the request to the judiciary. James had issued a writ of commendam to Bishop Richard Neile, providing him with the revenues associated with a particular benefice without him needing to serve in the position. The King’s Bench under Coke held the granting of the writ to be illegal, hence James’s request that the judges delay judgment. Coke’s intransigence on the matter, which he maintained even after the judiciary were called before James himself, resulted in his dismissal as a judge by James on November 14, 1616.31

The contrasting visions of judicial office that underlay this conflict between Bacon and Coke were explicated in greater detail in their writings. Across a range of pamphlets, Bacon developed an image of judicial office as entirely subordinate to ‘sovereignty’, which was held by the monarch. When adjudicating upon a case, judges needed only ensure the monarch’s wishes were reflected in their judgment. Bacon’s articulation of judicial office shared much, unsurprisingly, with James VI and I’s. Like James, Bacon presented judicial office as devoid of independence from the crown, a cipher of a sovereignty that was the sole source of law. Indeed, like James, too, Bacon gave preference to scriptural reference over historiography in his articulation of judicial office.

In his 1607 essay, ‘Of Judicature’, Bacon emphasised that ‘[j]vdges ought to remember that their Office is… To Interpret Law, and not to Make Law’.32 He deployed Biblical imagery to assert that though judges should be like the lions that sat on either side of Solomon’s throne, they should be ‘yet lions vnder the throne; Being circumspect that they doe not checke, or oppose any Points of Soueraigntie’.33 To effect this subordinate status relative to sovereign will was to ensure the safety of the people, as Bacon reminded judges of the Roman dictum ‘Salus Populi Suprema Lex’ (the safety of the people should be the supreme law).34

31 Ibid., 34-5. 32 Francis Bacon, ‘Of Judicature’, in The Essayes or Counsels, Civill and Moral, of Francis Lo. Verulam (London: 1625), 316. 33 Ibid., 323. 34 Ibid., 323. 52

The use of this final phrase is particularly significant, for this Latin maxim has often been associated with what historians have considered the tradition of ‘reason of state’ theorising. Historians of this tradition have seen ‘reason of state’ as an ideology that emphasised utility in statecraft over concerns such as virtue. Noel Malcolm is illustrative of this scholarly approach for his discussion of reason of state as a ‘theory’ of politics both descriptive – as an account of ‘how politics works’ – and ‘quasi-normative’ for its justificatory uses.35 Malcolm’s account emphasises the similarities between the theory of reason of state and ‘Hobbes’s theory’.36 To this end, he gives particular attention to Hobbes’s reliance on the ‘salus populi’ phrase, a ‘tag often cited’ by theorists of reason of state, for it expressed the needs of state survival as superior to any moral norms.37

Condren has already challenged such accounts of reason of state as ideology, for they constitute an anachronistic projection of modern ethical and political commitments upon a past alien to such ideological strictures. For Condren, the rhetoric of reason of state belonged to a wider idiom of casuistic reasoning, antithetical to deontological rhetoric. Casuistry focused not on timeless moral rules, but was centred instead on particularity: on the specific obligations of defined officeholders in concrete circumstances.38 It was a covering rhetoric used in relation to a wide range of offices to defend certain exercises in office-holding that privileged the circumstantial over unchanging, universal rules. In this context, reason of state rhetoric was one means of configuring office. Indeed, if we look back at Bacon, who spoke explicitly of judicial ‘office’, the salus populi maxim was not invoked to articulate an entire ideology of statecraft, but to instruct judges in a particular element of their officeholding; their interactions with the monarch.

Bacon levelled similar arguments regarding judicial office with more force in The Elements of the Common Lawes of England, first published posthumously in 1630 though likely written before 1603, during Elizabeth I’s lifetime, given that it was dedicated ‘[t]o her sacred majestie’. In his dedication, Bacon described his Queen as the ‘anima legis’ (the soul of the law), without

35 Noel Malcolm, Reason of State, Propaganda, and the Thirty Years’ War (Oxford: Oxford University Press, 2007), 106, 94. 36 Ibid., 115. 37 Ibid., 117. 38 Condren, ‘Reason of State and Sovereignty in Early Modern England’, 16. 53 whom the laws are ‘silent’, nothing more than ‘litera mortua’ (dead letters).39 Confirming that it was monarchs from whom law flowed, Bacon went on to describe Edward the Confessor as the ‘principall Law-giver of our nation’.40 Bacon’s writings thus confirm Todd Butler’s claim that Bacon held judges could assist the monarch, but they could not act independently of the king or queen; their office was tied to sovereign will.41

Against these claims that sovereign will should drive the exercise of judicial office, Coke developed a rival account of judicial office grounded on its independence, a result of the unique skills common lawyers possessed, impenetrable to those outside the profession. Coke’s understanding of judicial office drew much from St German’s, but offered an intensification of these earlier arguments, likely because of the particularly combative circumstances in which he wrote. Across an array of texts, Coke described the arduous training required of common lawyers. Like St German, Coke marginalised the role of the sovereign in law making, emphasising the breadth of legal sources.

He added to this an assertion of the complexity of judicial office, emphasising the uniqueness of the skills possessed by common lawyers that could only be cultivated through intensive legal training and study. Where St German had argued that the judiciary possessed the capacity to align disparate legal sources with God’s will and reason, and so took no direction in adjudication, Coke presented the judiciary as initiates into a common law so dense and complicated as to be entirely indecipherable to the untrained. For Coke, any attempt by the uninitiated to intervene in a system so impenetrable could lead only to disaster. In other words, where St German had simply argued that the judiciary possessed the necessary reasoning skills such as not to require subordination, Coke claimed that subordination was impossible, and if attempted, dangerous.

Coke opened A Booke of Entries with the claim that ‘[a] learned man in the lawes of this realme is long in making’, before explaining that in order to become a lawyer, one needed training in both ‘the Actiue part’, legal practise, and ‘the Speculatiue’, the study of ‘the science of the laws’.42 In particular, this meant that lawyers required a broad understanding of ‘legall reason’

39 Francis Bacon, The Elements of the Common Lawes of England (London: 1636), Dedication. 40 Ibid. 41 Butler, ‘The Cognitive Politics of Writing in Jacobean England’, 31. 42 Edward Coke, A Booke of Entries (London: 1614), Preface. 54 and of particular ‘judiciall President[s]’ or, as we would spell it, ‘precedents’.43 Such an understanding was to be cultivated through reading the records of the common law, which revealed not only the precedents themselves, but how judges brought these precedents together to construct a judgment. To this end, Coke explained that his book constituted a repository of ‘many excellent Presidents’.44

Coke further explained that relying on those earlier judgments held to be good law – those precedents ‘formerly approued and allowed’ – was ‘safe’. Indeed, far safer than a lawyer seeking to ‘trust to any new frame carued out of his owne inuention’, for ‘Nihil simul inuentum & perfectum est’ (nothing is invented and perfect).45 As Butler has noted, this understanding of judicial office constituted a block against sovereign intervention; if judicial office rested on a detailed understanding of the law possessed only by those trained in the arts of legal reasoning, then the monarch was automatically excluded from intervening in the work of the courts.46

Though not as explicit, Coke’s other works supported this image of judicial office as grounded in a multitude of complex precedents that lawyers had to master and which rendered judicial office opaque to outsiders. Coke opened his Reports, a lengthy compendium of precedents published in 1600, with the declaration that he was recording cases in order that they would not be forgotten or misremembered; a safeguard against inaccurate application. In Coke’s words, as ‘[n]othing is or can bee so fixed in mind, or fastened in memorie, but in short time is or may bee loosened… and… lost… It is therefore necessarie that memorable things should be committed to writing’.47 The importance of recording applied particularly to the common law, for ‘it consisteth upon so many, & almost infinite particulars’.48

Coke’s Institutes, too, presented law as a discipline impenetrable to all but its initiates. The Institutes consisted of four volumes published between 1628 and 1644, each a legal treatise; the first a commentary on Littleton’s tract on property. The Institutes are particularly dense, consisting of rule-upon-rule, often in a variety of font sizes and typefaces. Coke’s sentences

43 Ibid. 44 Ibid. 45 Ibid. 46 Butler, ‘The Cognitive Politics of Writing in Jacobean England’, 35. 47 Edward Coke, ‘Reports’, in Steve Sheppard, ed., The Selected Writings and Speeches of Sir Edward Coke: Volume 1 (Indianapolis: Liberty Fund, 2003), 1-520, at 4. 48 Ibid., 5. 55 move between English, Latin, and French, the three languages of English law. The text itself reveals a dedication to precedent, particularly those affirmed repeatedly by judges. Commending a particular maxim relating to inheritance, for example, he endorsed it for ‘all our ancient Authors and the constant opinion ever since doe affirme’ it.49

Supporting this image of Coke as a defender of judicial independence on the grounds of the unique arts of reasoning possessed by common lawyers, Cromartie has described the text as an ‘anti-textbook’ designed as a ‘monument to the uselessness of mere written knowledge unless it is internalised in a trained professional mind’.50 Coke’s text could not be read by anyone, but required legal training to make sense of its endless details. Only a mind cultivated through education in the Inns of Court could sieve the overwhelming, unstructured prose for the information from which judgments could be built. Again, judicial independence was affirmed through the impossibility of anyone outside the profession having the requisite knowledge to perform the tasks of judicial office.

Coke’s antagonism towards James VI and I’s attempts to corral the judiciary were extended in his interactions with Charles I, as Coke used the to defend judicial independence from the crown, and the king’s subordination to the law. The Petition arose in response to Charles I’s levying of forced loans in 1627, a form of taxation by prerogative rather than parliamentary consent, to fund English involvement in the Thirty Years’ War. There was extensive protest to the forced loan, with over seventy men jailed without charges brought against them for refusing to pay. Five petitioned the Court of King’s Bench for writs of habeas corpus, which the court rejected, citing a wealth of precedent to demonstrate that when jailed without charge on the king’s orders, the common lawyers could not grant bail.51

The case, which came to be known as the Five Knights Case has engendered significant scholarship, which has generally sought to interpret the judgment in terms of forces outside the law. On Michael Mendle’s reading, the judgment revealed the King’s Bench judiciary adopting

49 Edward Coke, The First Part of the Institutes of the Lawes of England (London: 1628), 11. 50 Alan Cromartie, Sir Matthew Hale, 1609-1676 (Cambridge: Cambridge University Press, 1995), 15. 51 ‘Proceedings on the Habeas Corpus, brought by Sir Thomas Darnel, Sir John Cobet, Sir Walter Earl, Sir John Heveningham, and Sir Edward Hampden’, in T. B. Howell, ed., Cobbett’s Complete Collection of State Trials: Volume 3 (London: 1809), 1-234, at 51-9. 56

‘Fortescuean absolutism’.52 Mendle describes this as a ‘political theology’ of ‘binary kingship’, that held that the king’s governance of the realm was typically law-bound except in certain circumstances in which the king could override these laws out of necessity.53 To conclude that the judges upheld the king’s capacity to act extra-legally in certain circumstances, though, is possible only if we focus on the outcome of the case to the exclusion of the actual arguments of the presiding judges.

Certainly, the presiding judges declined to bail the imprisoned knights, but their judgment was no argument that the king could exceed the law when necessary. They claimed instead that the common law provided that the king could order subjects detained without charge. Chief Justice Sir Nicholas Hyde, who gave the only judgment in the case, stated that ‘the king… is bound by law’ and that he ‘bids us proceed by law, as we are sworn to do, and so is the king’.54 Indeed, the entire judgment consisted of the deployment of precedent to show that the common law provided a capacity for the king to detain without charge. There was nothing in the judgment approaching a claim that Charles I was, as king, largely law-bound but able to exceed the law in certain circumstances. On the judgment of the King’s Bench, he was bound by the law, and had proceeded by the law. Mendle’s argument amounts to claiming the complete opposite of what the judiciary in fact declared.55

Though the King’s Bench found in favour of Charles’s capacity to detain those who had failed to pay the forced loan without bringing charges against them, the loan was deeply unpopular with many, including MPs, who saw it as an over-reach of the king’s power. The response was the Petition of Right, which the parliament forced Charles into ratifying in June 1628, for he needed their support to fund his military ambitions. The Petition amounted to a condemnation of the forced loan as against the laws of England. The loan was ‘not warrantable by the Lawes

52 Michael Mendle, ‘Parliamentary Sovereignty: A Very English Absolutism’, in Nicholas Phillipson and Quentin Skinner, eds., Political Discourse in (Cambridge: Cambridge University Press, 2011), 97- 119, at 106-7. 53 Ibid., 104, 106. 54 ‘Proceedings on the Habeas Corpus, brought by Sir Thomas Darnel, Sir John Cobet, Sir Walter Earl, Sir John Heveningham, and Sir Edward Hampden’, 59. 55 Conrad Russell was closer to capturing the operation of law, noting that what was in question in the Five Knights Case was not whether Charles ruled by law, but what the law was (Conrad Russell, Parliaments and English Politics, 1621-1629 (Oxford: Oxford University Press, 1979), 348-9). 57 or Statutes of this Realme’, and was ‘against the tenor of the said Statutes and other the good Lawes’, listing statutes that showed parliamentary consent was required for taxation.56

The Petition of Right thus represented three points. First, the king was not above the law, for the Petition declared the forced loan unlawful. Second, the king was not the only source of law, for the Petition described the loan not only as against the statutes of the realm, but the laws of the realm more broadly. And third, the common lawyers had an especial ability to interpret and apply the law, for it was Coke who had drafted the Petition, arranging his legal sources in his attack on Charles’s proclaimed legal superiority. The image of judicial office emerging from the Petition of Right thus echoed that which Coke advanced in his writings on law, of the common law as independent of monarchy both in terms of the sources anchoring it, and the expertise required of it.57

II These early seventeenth century conflicts over judicial office were exacerbated by the outbreak of civil war in England in 1642. War threw the country into turmoil, with the common law courts left in disarray. In his history of the Civil Wars published in the early eighteenth century, Edward Hyde, First Earl of Clarendon, recorded that regional assizes were suspended in 1643. The senior judges traditionally based in London would no longer travel the country to dispense the common law.58 The judiciary itself was divided: opposing loyalties towards king and parliament among the common law judges meant that some fled to Oxford with the king and his supporters, while others remained in London. The result was juridical schism: judges attempted to dispense the common law from both locations.

Though some stability in the practice of the common law was achieved with the end of the First Civil War in 1646, the common lawyers and their profession were subjected to increasing rhetorical attack, as the sectarian divisions of the Civil Wars were overlayed onto the rhetoric of judicial office. In many cases, those attacking the common lawyers and common law did not

56 ‘Charles I, 1627: The Peticion Exhibited to His Majestie’, in John Raithby, ed., Statutes of the Realm: Volume 5 (London: 1819), 23-4. 57 Among the Petition’s supporters, the lawyer echoed Coke on judicial office, emphasising the importance of precedents established through ‘long vse or allowance’ (John Selden, The Duello or Single Combat (London: 1610), 21). On the debates leading to the Petition, see Russell, Parliaments and English Politics, Chapter 6. Russell treats Coke’s invocation of ancient law as a ‘theory’, but he correctly recognises that the Petition held the king to be restrained by common law (Russel, Parliaments and English Politics, 352, 362-5). 58 Edward Hyde, The History of the Rebellion and the Civil Wars in England: Volume 2 (Oxford: Oxford University Press, 1996 [1702-14]), 525-6. 58 seek merely piecemeal reform. Instead, they sought to undo the entire basis on which judges worked, levelling calls for the complete abolition of the common law and the institution of a new legal system that would re-orient judicial office around preferable principles by which the English people could be judged.

Among the texts looked at here, it is notable that both John Hare’s and John Warr’s pamphlets relied on extensive retellings of English history. Far more than any of the texts looked at in this chapter that have been central to the scholarship on the ancient constitution, these two authors leveraged extensive criticism against the common law through rich retellings of the English past. It is ironic that neither have featured in the historiography on English history-writing, despite history being a clear basis for their arguments. Indeed, Pocock’s supposed account of the ‘first great age of modern historiography’ relied on texts often scarcely reliant on history, while ignoring those heavily indebted to the past.59

In 1648, the pamphleteer Hare launched a scathing attack on the English legal system, in which he called for the complete abolition of its present form on the grounds that the common law had robbed the English people of their liberties and rendered the king their enemy.60 Breaking with those who had argued for judicial office’s subservience to monarchy and those who had defended its independence, Hare asserted that the judiciary ought to be subordinate to popular will. In Hare’s telling, the common law was corrupted for it was no longer a purely English legal system. William I’s conquest had introduced ‘forreign Laws and Customes’ to the English realm, and the common lawyers were at fault for sustaining this foreign influence through their work.61 Only a reordering of English law around popular will could restore to the law a sufficiently English character; the recovery of the true consensual basis for judicial determination would restore the lost freedom and honour of the English.

We might return to Pocock and Skinner here, and note that their ideological accounts of English historical writing, which oppose common law and parliamentary defenders of a timeless constitution against royalist supporters of unfettered sovereignty as a legacy of conquest, have no room for a writer like Hare. In the attempts of scholars to force the variety of seventeenth

59 Pocock, The Ancient Constitution and the Feudal Law, 245. 60 Hare is mysterious figure: no ODNB entry or any other bibliographic information can be found on him, and Englands Proper and onely way to an Establishment in Honour, Freedome, Peace and Happinesse (London: 1648) appears to have been his only publication. 61 Ibid., 1. 59 century debate into a binary ideological division, arguments like Hare’s deploying both an anti- monarchical defence of popular law-making and an account of conquest are elided. The fault of relying on a restrictive binary model to make sense of this past lies, it would seem, with the desire among intellectual historians of the seventeenth century to attempt to stabilise rhetorical diversity through over-simplified reifications.

When abstracted to the level of historiographical or theoretical debate, it is easier to imagine clear divisions between actors; obvious distinctions between theoretical factions. In the far more pressing struggle over judicial office, though, a fight over immediate questions of how judges should comport themselves in court, such neat divisions were rare, as polemicists cobbled together arguments out of the various rhetorical resources available to them. Hare can be understood in this context, not as having produced a measured historiographic or theoretical treatise, but as a polemicist writing at the end of the Civil Wars to advocate a reordering of the common law in a combative legal landscape.

Hare claimed that William had initially come to the throne as a ‘Legatee’ charged with ‘preserv[ing] our Laws and Liberties’.62 By introducing new laws – ‘Normane Innovations’63 – though, William had acted in a manner ‘usurpant; perjurious and perfidious’, robbing England of ‘the Title and quality of a free Nation’.64 This legal system denied the English their ‘undoubted Right’ to choose their laws and their sovereign.65 Further, as this right constituted a ‘Great part’ of Englishmen’s ‘Honour and the summe of their Freedome’, they were ‘utterly defrauded’,66 forced to live in a ‘yoke of Captivity’.67 Submitting to these laws, for Hare, was to ‘renounce Honour, Freedom and all absolute Right to any thing but just shame and oppression’.68

These laws were not only detrimental to the people, but to the monarch, too. As an heir of William II, the current king – Charles I – was a ‘Usurper’, unable to possess a ‘just Right’; an ‘Heireship to the English Bloud’.69 He was also unable to have a ‘just interest in the peoples

62 Ibid., 7. 63 Ibid., 1. 64 Ibid., 8. 65 Ibid., 3. 66 Ibid. 67 Ibid., 4. 68 Ibid. 69 Ibid., 6. 60 affections’ and thus by ‘Title of the Conquest’ was a foreigner and the ‘capitall enemy of his Subjects’.70 On these grounds, Hare alleged that the conquest had been responsible for all civil war in England: ‘many Civill warres we have had in this Kingdome since these Abuses were set on foote, whereas before, we never had any’.71

For Hare, these hated Norman legal reforms were in fact no true laws. Since their inception, Englishmen opposed them, and this was the test of a law: ‘the proper birth or stamp [of law] is to be of the peoples choosing’.72 He singled out the common lawyers for having concealed this fact from the people, accusing them of having treated the Norman laws as ‘Legitimate’ in their work.73 The only remedy capable of providing relief to the captive English was complete abolition of the laws, for only this would restore England ‘into the quality of one naturall Body’ and recover its ‘Honour, Freedome or Happinesse’.74 Any attempt at legal reform short of abolition would be meaningless, and Hare described such attempts ‘as building of Castles in the aire, that have no firme foundation, but may be blown down with the Kings arbitrary breath’.75

In place of the Norman laws, Hare proposed a return to the pre-conquest laws of King Edward, for these were the populace’s preferred laws: they were ‘the most desired and desirable’.76 Closing, he exhorted the English to undertake these reforms, for there may be no better time. Despite the failures of earlier reform attempts, these must not be cited as a reason to avoid current reform, for now ‘heaven holds forth power and opportunity far more liberally than ever heretofore or perhaps then hereafter’ to assert ‘Truth’ and establish ‘Righteousnesse’ in the kingdom.77 The English must thus take up this opportunity for legal reform to re-inscribe a new basis for the law carried out in courtrooms across the country. That he tied his conclusion so explicitly to the immediate circumstances of post-Civil Wars England shows how far this was from measured theoretical reflection; it was a concrete proposal for law reform tied to pressing historical circumstances.

70 Ibid. 71 Ibid., 7. 72 Ibid., 2. 73 Ibid. 74 Ibid., 9. 75 Ibid., 10. 76 Ibid., 8-9. 77 Ibid., 11. 61

The trial and subsequent execution of King Charles I in 1649 saw many of these conflicting notions of judicial office come to the fore. The trial was initiated by parliamentary act, a clear assertion of the independent legislative power of parliament. The prosecution was led by a common lawyer, , whose argument was principally grounded in the contention that the king was bound by the ancient common law, which itself grounded judicial office. Charles responded to being prosecuted with the assertion that the king was above the law. Between these three poles of parliament, judiciary, and crown, we can see a series of competing propositions about judicial office: it was grounded in parliamentary legislation; it was grounded in ancient laws of the realm that bound the king; it was subordinate to sovereignty.

Cook’s prosecution declared that the king was charged with treason for having exceeded the ‘limited Power’ of monarchical office. Charles had failed to govern in accordance with ‘the Laws of the Land’ – the ‘fundamentall Constitutions of this Kingdom’ – that required the ‘preservation of [the People’s] Rights and Liberties’.78 Charles’s claim that he had only acted within his prerogative was false; a ‘pretended Prerogative’.79 Though Cook deployed the language of judicial office grounded in ancient law that bound the king, tensions regarding the scope of judicial office were evident in the case. The judge selected by parliament to oversee the trial, , claimed that Charles was triable ‘by the Authority of the Commons of England, and all [the King’s] Predecessors’.80 The court itself derived its power from ‘the Commons of England, in whom rests the Supream Jurisdiction’.81

In asserting the court’s subservience to the House of Commons, Bradshaw deployed a rhetorical configuration of judicial office that almost resembled Bacon’s language of a judiciary subservient to sovereignty. Though he located sovereignty in the Commons, rather than king, Bradshaw affirmed that judges held office as they were ‘appointed by the highest JUDGE’.82 This emphasis on the judiciary’s subservience to the authority that appointed them would be repeated by Hobbes, as we will see in the following chapter, and is reminiscent of Bacon’s image of judges under the throne. Cook’s image of independent judicial office grounded in immemorial law drew on St German’s and Coke’s opposition to a hierarchical account of sovereignty, of judicial office grounded in the interpretation and application of

78 King Charles his Tryal at the High Court of Justice in Westminster Hall (London: 1655), 6. 79 Ibid., 9. 80 Ibid., 17. 81 Ibid., 29. 82 Ibid., 30. 62 ancient law opaque to outsiders. Against such an account, Bradshaw treated the relationship between sovereign and judicial office in similar terms to Bacon; if he located sovereignty in the House of Commons, the judiciary remained entirely subordinate.

Against the suggestion that he was bound by law, whether ancient common law or House of Commons’ prerogative, Charles asserted his supremacy above it, proffering a notion of judicial office as always subordinate to kingship. Responding to the charges against him, Charles denied that any jurisdiction could try him: ‘I would know by what power I am called hither… by what lawful Authority’.83 Invoking the language of kingship as a divine grant deployed by his father, Charles defended his office as ‘committed to me by God’, and claimed that as England was a ‘Hereditary Kingdom’, he was on the side of law, unlike the ‘pretended Judges’ who would have him tried.84 Indeed, there was no ‘legall Authority’ from the ‘Word of God, the Scriptures, or… the Constitutions of the Kingdom’, no ‘Superiour Jurisdiction on Earth’, by which he could be tried.85 It was the court that tried him, not Charles’s actions in office, that threatened England’s ‘Fundamental Lawes’.86

Charles’s refusal to plead on the case, demanding instead to know the authority of the court to try him, resulted in his treason conviction and execution. His approach to the case, refusing to even respond to the allegations against him, meant that there was little sparring between prosecution and defence, little opportunity for Cook to offer an image of the common law that challenged the rival models of monarchical and parliamentary subordination championed by Charles and Bradshaw, respectively. The case against Charles was predominantly handled by Bradshaw, who took the opportunity to relentlessly affirm that parliament was the sole maker of English law, an account that relegated common lawyers to ciphers of the House of Commons’ will. In moving to sentencing, Bradshaw claimed that judges were merely ‘Expounders’ of law, while parliament were not only the ‘highest Expounders’, but ‘sole makers of the Law’.87

He used an historical claim to ballast his argument: the law as made by parliament was ‘superior’ to the king as this was the form of government historically selected by the ‘people

83 Ibid., 10. 84 Ibid., 11. 85 Ibid., 12, 15. 86 Ibid., 23. 87 Ibid., 33. 63 of England’.88 Parliaments existed ‘to redress the grievances of the People’, of which Charles’s trial was a clear example.89 Crucially, though deploying a register Pocock would describe as ancient constitutional, Bradshaw’s argument was not principally historiographic; his focus was on how law was made, and history served a marginal role in this argument. Moreover, despite arguing for parliament’s rights by antiquity, Bradshaw described William as a conqueror and the 1066 invasion as ‘the Conquest’.90

There was no binary opposition between commitment to an unchanging constitution and acknowledgement that William’s invasion constituted a conquest. In sentencing Charles to beheading, Bradshaw threaded together this claim that law was historically created through parliamentary will with an account of law grounded in scripture, noting the scriptural punishments for murder and the maxim that ‘to acquit the guilty, is of equall abhomination as to condemn the innocent’.91 Again, we can discern less a clear theory of history than we can a blending of available arguments against the king, all of which positioned judicial office as subordinate to a hierarchically superior sovereign parliament.

The opened up the field for more radical proposals for legal reform, which were characterised often by the viciousness of their assault on the common law and common lawyers. In 1649, John Warr, an author who remains unknown outside of his Interregnum pamphlets, published The Corruption and Deficiency of the Laws of England Soberly Discovered.92 Warr’s writing reveals a detailed and intense opposition to the common law, grounded in a desire to see reason, defined as the good of the people, enshrined as the basis for judicial decisions. In making this argument, Warr relied on many of the rhetorical tropes of judicial office, bending them to new purposes. He agreed with St German that reason arose of divine will, but disagreed that such reason existed in the common law. He agreed with Hare that the common law was antithetical to the people’s freedom, but not that the solution was to give the people control of the law.

Warr claimed that at their initiation, societies were not founded through laws, but simply through agreements: ‘at the Foundation of Governments Justise was in men, before it came to

88 Ibid., 33. 89 Ibid., 34. 90 Ibid., 38. 91 Ibid., 41, 45. 92 John Warr, The Corruption and Deficiency of the Laws of England Soberly Discovered (London: 1649). 64 be in Laws… and people were content to pay [princes] their subjection upon the security of their bare words’.93 Only when this situation proved untenable, for princely interests overpowered those of the people, ‘bankerupt[ing] the world’, were laws instituted. Without reference to any sort of ancient constitution, Warr recounted the origin of laws setting the limits of monarchs’ and their subjects’ power: ‘Justice was transmitted from men to Laws, that both Prince and People might read their duties, offences, and punishments’.94

Though laws thus arose from a ‘pure and genuine intent… to bridle Princes’,95 the law failed to manifest these positive intentions, privileging instead ‘the interest of Princes’, with ‘the weight of it fallen upon the People’. In impassioned prose, Warr lamented the particular irony of the laws turning against the people: ‘put upon the rack of self and worldly interest, [laws] are forced to speak what they never meant, and to accuse their best friends, the People’.96 The common lawyers were responsible for this legal oppression. Warr condemned the common law’s delays, its excessive formality, the common lawyers’ reliance ‘upon Presidents, rather than the Rule, especially the Rule of Reason’, the triviality of some offences, the disjuncture between offences and punishments, the common lawyers’ use of , and the centralisation of the common law courts in London.97

Wholesale law reform was the only solution. Warr explained that new laws must be to the benefit of the majority, for ‘[t]he more generall a good is, the more divine and God-like’. For this reason, ‘Lawes of Freedome in behalfe of the people’ were to be sought.98 Warr acknowledged, though, that such emancipatory reforms would be difficult, for few were willing to privilege the good of the majority over their personal interest: ‘most being buisier to advance and secure themselves, then to benefit the publike’.99 Warr singled out the common lawyers for being particularly difficult in this regard, having entrenched their interest in the law by preying upon the ‘common Barretor’ of contention within all men, causing ‘strife… between a man and his neighbour’.100

93 Ibid., 2. 94 Ibid. 95 Ibid., 1. 96 Ibid., 2. 97 Ibid., 13-4. 98 Ibid., 13. 99 Ibid., 14. 100 Ibid., 17. 65

Only God could resolve this difficulty, for ‘Pure Religion’ had the power to relieve the oppressed, as divine intervention could provide men with the conviction to deny personal interests and pursue legal reform with freedom ‘engrafted in their own minds’.101 Closing, Warr offered a rousing proposal for law reform and the rearrangement of judicial office. As the ‘world travells with Freedom, and some reall compensation is desired by the people, for all their sufferings, losses, blood’, we should ‘put off law’, and replace it with ‘reason’, a new basis for judicial determination and ‘the mother of all just Laws’.102 Like Hare, Warr’s attack on the common law was no measured historiographic or theoretical reflection, but a sectarian polemic written at and for a particular moment in English history.

These calls for legal reform were eventually taken up by parliament, with the passing a resolution on 22 October 1650 to ‘take into Consideration the Regulation of the Proceedings of the Laws’. In particular, the House of Commons declared it would investigate delays in the courts and the exorbitant fees to bring a suit.103 Three days later, the House resolved that law books would no longer be kept in Latin or Law French, nor would the proceedings of courts be conducted in these languages. Further, court records were to be kept ‘in an ordinary, legible Hand; and not in any Court Hand’. A committee was appointed to prepare legislation on these subjects and to consider the salaries of, and fees charged by, judges and other court officers, and delays in the courts.104

This first committee into Interregnum law reform was led by Sir Henry Vane and the Lord Commissioners and , and consisted of twenty-eight members, predominantly lawyers. The committee has been little-remembered in scholarship: in a posthumously published 1941 essay on Interregnum law reform, Goldwin Smith quoted Roger Cope’s 1696 claim that ‘[w]hether the Rump passed these laws I do not find’.105 Had Smith himself sought to find any legislation produced by this committee, he would have found that in November 1650, they brought to the House of Commons a bill for the translation of legal proceedings into English, which was passed on 22 November 1650.106

101 Ibid., 14-5. Warr was not alone at this time in calling for God to address problems in the law: William Steele, Duke Hamilton Earl of Cambridge his Case (London: 1649), 4). 102 Warr, The Corruption and Deficiency of the Laws of England Sobery Discovered, 18. 103 ‘House of Commons Journal Volume 6: 22 October 1650’, (hereafter ‘HCJ’) in Journal of the House of Commons (hereafter JHC): Volume 6 (London: 1802), 485-6. 104 ‘HCJ Volume 6: 25 October 1650’, in JHC: Volume 6, 487-8. 105 Roger Cope quoted in Goldwin Smith, ‘The Reform of the Laws of England, 1640-1660’, University of Toronto Quarterly 10:4 (1941), 469-81, at 476. 106 ‘HCJ Volume 6: 22 November 1650’, in JHC: Volume 6, 500-1. 66

In April 1651, the committee brought to the House an amended form of the 1650 act. The amended act delegated the work of translating legal proceedings ‘to the Lords Commissioners, Master of the Rolls, and the chief Judges of the Upper Bench, Common Pleas, and Exchequer’,107 and was passed on 9 April 1651.108 What became of this committee remains unclear: the Journal of the House of Commons records that on 25 April 1651 the House requested the committee bring a report on legal reform before the House the following Friday,109 but there is no record of the report being brought, nor mention of the committee again.

On 8 October 1651 the committee was ‘revived’, and granted the power to ‘confer with what Persons they shall think fit: And to send for Persons, Papers, Witnesses, and what else may conduce to the Business’.110 Again, though, no further reference to this first committee appears in the Journal. Two further law reform committees were created by the Interregnum House of Commons: in December 1651,111 and September 1656,112 respectively. The first of these committees, which came to be known as the Hale Commission for its chair, Matthew Hale, produced little that made it into law. Its only notable success was the suggestion, accepted by the House of Commons, that judges receive a consistent salary and not seek other pay directly or indirectly.113 It remains unclear when the committee disbanded; John Hotstettler claimed that the committee was retired on 23 July 1652, but provides no supporting evidence.114 The Journal records no reference to the committee after 25 March 1652.115

The 1656 Grand Committee appears to have existed in some form until mid-1657, when the final bill the committee dealt with, addressing wills and probate, was passed by the House.116 In its lifetime, the committee also produced a bill to abolish the Court of Wards and Liveries,117 and a bill to establish a common law and court in York. The first of these passed; what

107 ‘HCJ Volume 6: 4 April 1651’, in JHC: Volume 6, 556. 108 ‘HCJ Volume 6: 9 April 1651’, in JHC: Volume 6, 557-8. 109 ‘HCJ Volume 6: 25 April 1651’, in JHC: Volume 6, 567-8. 110 ‘HCJ Volume 7: 8 October 1651’, in JHC: Volume 7 (London: 1802), 26. 111 ‘HCJ Volume 7: 26 December 1651’, in JHC: Volume 7, 58-9. 112 ‘HCJ Volume 7: 18 September 1656’, in JHC: Volume 7, 423-4. 113 ‘HCJ Volume 7: 23 January 1652’, in JHC: Volume 7, 76-7. 114 John Hotstettler, Champions of the Rule of Law (Hampshire: Waterside Press, 2011), 49. 115 ‘HCJ Volume 7: 25 March 1652’, in JHC: Volume 7, 110-1. 116 ‘HCJ Volume 7: 11 May 1657’, in JHC: Volume 7, 532. 117 ‘HCJ Volume 7: 27 November 1656’, in JHC: Volume 7, 459-60. 67 became of the second remains unclear.118 The committee also considered the relationship between the common law and equity jurisdictions, as had the Hale Commission,119 but no legislation seems to have been produced.120

What little scholarship there exists on Interregnum law reform has tended to focus on the limited success of these committees. Smith, for example, suggested that limited political stability and a lack of unity among those advocating reform neutered the committees, though noted that many of their proposals became law by the end of the seventeenth century, and in the eighteenth and nineteenth centuries.121 Mary Cotterell, writing on the Hale Commission specifically, countered Smith’s view that the committees were riven with conflict, arguing that although the Commission members held a wide array of views, the Commission was dominated by the lawyer members, with the radical members often sidelined.122 Cotterell contended that the Commission thus supported only moderate law reform, though like Smith, denied that it had any particular success in achieving such reform.123

In focusing on the particular legislative outcomes of these committees, or lack thereof, this scholarship has not considered the subtler, though no less important, relevance of these committees and their members to the debate over judicial office. Indeed, in neglecting the broader notions of judicial office that animated members of these committees is to miss one of the more significant stakes of these committees. For while particular reforms were achieved, such as the translation of legal records into English, few of these lasted; legal records were returned to Latin and Law French in the Restoration. The notions of judicial office put forward by committee members continued to shape Restoration debate over judicial office, though. These committees had their most significant and wide-ranging legacies in contributing to the broad debate about how judges were to comport themselves in court.

The Hale Commission, in particular, provided a forum in which some of the most significant protagonists in the Interregnum and Restoration debates over judicial office came together. As

118 There is no reference to the bill after 3 March, 1657 (‘HCJ Volume 7: 3 March 1657’, in JHC: Volume 7, 498. 119 Mary Cotterell, ‘Interregnum Law Reform: The Hale Commission of 1652’, The English Historical Review 83:329 (1968), 689-704, at 702. 120 There is no reference to the subject after 17 February, 1657, when a report on the matter was scheduled to be discussed the following week (‘HCJ Volume 7: 17 February 1657’ in JHC: Volume 7, 492-3). 121 Smith, ‘The Reform of the Laws of England’, 480-1. 122 Cotterell, ‘Interregnum Law Reform’, 690-1, 694-9. 123 Ibid., 703. 68 we will see in Chapter 3, this forum is particularly important to understanding Matthew Hale’s Restoration commentary on judicial office. Although the first and third committees for law reform were made up of MPs, many of whom were trained as lawyers and who offered little comment on judicial office, members of the Hale Commission – the only one of the three committees the membership of which was not drawn from parliament – espoused in print an array of visions of judicial office, and we will close this chapter with a brief overview of these.

The breadth of the Hale Commission’s appointees resulted in a broad range of accounts of judicial office. John Rushworth was among those selected to the Commission. Rushworth was a trained lawyer and historian, who had worked for the House of Commons during the Civil Wars as a messenger and press licenser, and had served as secretary to the . He would later become an MP, and supported Charles II’s restoration to the English throne. Unlike other lawyers who intervened in the debate over judicial office, Rushworth was not a supporter of the judiciary’s independence. Rather, he attempted to subordinate judicial office entirely to parliamentary office. Despite Pocock’s insistence that as the seventeenth century progressed, the debate over the ancient constitution – the supposed dominant debate of the century – moved from a contest between immemorial law and unrestrained monarchy to immemorial parliament and monarchy, Rushworth’s defence of the parliament relied on no historical claims.

It is crucial to appreciate the similarity in argument between James and Bacon, who had asserted the king’s exclusive right to make law, and Rushworth’s and Bradshaw’s defences of parliamentary sovereignty. Though an opponent of Stuart monarchy until the late 1650s, Rushworth equally supported the claim that the law was hierarchical and that the judiciary was entirely subservient to sovereignty. He diverged in who held sovereignty, but like James and Bacon, articulated an account of law-making that was deeply antagonistic to the common lawyers. Of course, to argue for this similarity is not to minimise the difference between Rushworth and his opponents who defended the king’s supposed unrestricted legal power. It is, though, to show that both sides sought to arrogate the common law to their cause, and did so using similar arguments of judicial subordination, against the arguments of the common lawyers like Coke. Monarchical and parliamentary sovereignty were thus two sides of the same coin; they shared a common denomination in the subordination of judicial office.

69

Rushworth claimed that the power to make and amend laws was held exclusively by parliament. Neither the king nor any others could ‘make voyd’ these declarations; as James had claimed the king was above the law, now Rushworth claimed the same status for parliament.124 Indeed, as James and Bacon had both done, Rushworth explained that hierarchical sovereignty arose by divine right. He used Biblical citation to claim that kingship was created by divine right, but that sovereignty was turned over to parliament due to the king’s failure to keep his ‘Covenant’ with the people.125 Not only did the parliament hold sole law-making power, it also held the power of ‘finall judgment’ in court cases,126 thus held a ‘Judiciall power’ as well as a legislative power.127 In making his case for an uninhibited parliamentary sovereignty, Rushworth fell back on a similar rhetoric to Warr. The ‘highest law amongst men’ was the ‘Common interest’ of the people; judicial office was to be a servant to common interest as expressed in the dictates of an unrestrained parliament.128

Other Commissioners offered different articulations of judicial office that sought no less to curtail the independence of common law judicial office. Charles Cock was notable among commissioners for his experience in the civil law, having served in courts of probate and admiralty. The civil law was derived from Roman law, and though marginal in England, represented a rival legal tradition to the common law. It was mainly used in the ecclesiastical courts, like the Arches Court, but was relied upon in equity courts, too, the most senior of which were the Exchequer and Court of Chancery. Cock wrote numerous texts on the law, with varying degrees of sympathy for common lawyers. His overarching argument in these works, though, was that an over-reliance on custom was unnecessary and even damaging in law, for judges ought to privilege the justice of the case, defined in religious terms, over whether there were existing laws to provide a remedy.

Cock leveraged this argument through a particular approach to St German’s Doctor and Student. As we saw earlier in this chapter, St German had argued that the judicial comportment encompassed an understanding of God’s will, both declared and imbibed through man’s reasoning faculty. And he claimed that judges used this comportment when synthesising various legal sources, which included the customs of the realm, to produce judgment. Cock,

124 John Rushworth, An Abridgement of the Late Remonstrance of the Army (London: 1648), 5. 125 Ibid., 7. 126 Ibid., 5. 127 Ibid., 10. 128 Ibid., 6. 70 though, claimed that the law of God and reason was not just a tool by which a judge might evaluate legal sources, but ought to take precedence over other sources, particularly custom. In English Law, Cock argued for a ‘just Reformation of all our Laws’ by reducing them to a standard of ‘Christian Simplicity’.

To this end, he implored ‘Judges, Councellors and Officers’ to ‘look not at ancient Customes’, but at ‘common Justice’; not at restraining ‘particular evils’, but promoting ‘universal good’.129 The common law, for Cock, endorsed ‘Practise’ over ‘Principle’, venerating ‘Custom’ over ‘the Law of God or just reason’.130 In sum, he argued that a law built out of the particularity of customs was a poor grounding for judicial office. Judicial office instead ought to take its orientation from the universal beneficence of divine will; a curious manipulation of St German’s judicial office grounded in a comportment that synthesised custom and other law sources through the lens of God’s will.131

Cock offered similar arguments in other texts, as we can see in Englands Compleat Law-Judge and Lawyer, published in 1656, a few years after the dissolution of the Hale Commission. In this text, Cock argued that the common law should be reformed through judicial office being grounded in abstract notions of justice rather than in the particularities of custom; better rooted in particular philosophical absolutes than the specificities of precedent. In making this argument, Cock accused judges of upholding the standard ‘better an ill Law than none’, preferring to rely on law established than follow God’s direction. He advised instead that they ‘execute necessary power, though it be a question whether legally they have that power’ and urged that God ‘set it home’ in judges’ hearts to prioritise ‘what is just’.132

Attempting to frame the matter in more concrete terms, Cock explained that judges faced with a case ought to be able to easily discern ‘the Justice and Reason of the thing’, and must prioritise ‘reason’ over ‘the letter’ of law.133 Indeed, ‘Courts and Judges’ existed ‘for Justice sake’.134 In short, Cock argued that rather than deriving judicial office’s power from existing law, especially precedents, it would be better grounded on universally just, if definitionally opaque,

129 Charles Cock, English Law (London: 1651), Epistle Dedicatory. 130 Ibid. 131 Cock clearly had St German in mind, for he referred to Doctor and Student throughout English Law (Ibid., 78). 132 Charles Cock, Englands Compleat Law-Judge and Lawyer (London: 1656), The Epistle to the Judges. 133 Ibid., 7. 134 Ibid., 13. 71 divine will and reason. Though Cock’s argument appeared to reveal a preference for abstraction here, a characteristic associated with ‘theory’ today, to describe him as a theorist or his account of the judiciary as theory remains inappropriate. For his core subject was the specific office of the common law judge, and the necessary courtroom comportment of the officeholder.

Where Rushworth sought to subordinate judicial office to parliamentary will, and Cock to abstract, divine, and supposedly universal ideas of justice, Hugh Peters offered perhaps an even more extreme approach to law reform than his fellow Commissioners. Peters was a non- conformist minister who had published on law reform, most notably in his 1651 tract Good Work for a Good Magistrate. It is difficult to precisely capture Peters’s argument because it was characterised by significant inconsistencies, at times appearing to resemble Cock’s treatment of judicial office, at others more extreme. The only clear consistency within Peters’s polemic was a disdain for the common law as it stood, and for precedent-based adjudication in particular; a disdain shared with Cock.

Peters claimed to offer an account of how God made and kept a nation ‘as happie’ as possible. The realisation of this divine plan fell to the judiciary, who were required to enact three principles: to advance and maintain ‘True Religion’; to practice ‘True Mercie towards the poor’; and to uphold ‘True Justice, and Righteousness’.135 This new orientation of judicial office was to be achieved through eschewing precedent-based adjudication. Peters gave contradictory accounts of what would replace precedent-based common law, though. He first claimed, in terms similar to Cock, that reliance on established law was overrated, and that judges should instead prioritise acting justly, even if beyond the scope of existing law; ‘happiness in Government will never lie upon Laws, but… men carrying good Laws in their bosom’.136

Two pages later, though, Peters shifted his argument. Though he maintained his antagonism towards precedents, which he described as ‘obsolete’,137 he now argued that judicial office should be grounded in a restrictive set of particular ecclesiastical laws. He claimed that law must be based on ‘sound reason’, and that the best guarantee would be a legal system consisting of ‘the Moral Law… to which Moses’s judicials added, with Solomon’s Rules and

135 Hugh Peters, Good Work for a Good Magistrate (London: 1651), 1-2. 136 Ibid., 29-30. 137 Ibid., 32. 72 experiments’.138 Judges were entrusted with upholding those laws given to humanity through divine intervention as they were God’s ‘Vicegerent[s]’.139 Four pages later he offered a third account of his ideal legal system, irreconcilable with the first two beyond its antipathy towards common law.

Peters claimed that ‘pure Justice’ would be achieved by appointing a committee to ‘receiv requests, and advise from everie particular Town and Countie’ regarding the content of the law.140 He further suggested that these laws be carried out by appointed laymen, working with the assistance of lawyers and priests.141 Judicial office was thus transformed to a lay office grounded not in notions of goodness, nor in Biblical law, but in laws created by the people of England. Indeed, this final scheme also differed from those of polemicists like Rushworth who saw parliament as representing the people; for Peters, the people themselves, not their representatives, would make law.

Conclusion Given the diversity of accounts of judicial office proffered between the sixteenth century and the end of the Interregnum, it is almost impossible to reduce this diversity to simple summary. Indeed, the difficulty of carving simple demarcations into this history is a key contention of Part 1 of the thesis. Where historians have conventionally relied on simplifying reifications like ‘conquest theory’ or common law historiography, we can see instead a plurality of arguments, either attenuated by scholarship or ignored altogether. Such a plurality should not surprise us, for the debates covered here were not between rival theorists doing battle at a degree of abstraction through alternative modes of conceptualisation, but polemicists fighting over what judges were to do in court, what sources of law were appropriate for them to draw upon. The dispute, in short, was much closer to the ground, much more immediate, and it is inevitable in the cut and thrust of a debate like this that we would see not measured theoretical reflection, but a range of arguments drawn from the cobbling together of existing rhetorical resources.

Arguments from divine right like those of James VI and I have either been ignored by scholars of the ancient constitution as insufficiently historiographic, or have been attenuated to

138 Ibid. 139 Ibid., 34. 140 Ibid., 36. 141 Ibid., 39. 73 historiographic argument. The problem with such scholarly manoeuvres is that they rely on a mischaracterisation regarding the debate at hand. These polemicists were not on the outside of a debate about historiography, but on the inside of a debate about judicial office, a debate in which historiography was one of multiple weapons combatants invoked, but hardly a major one. Other combatants disappear from the gaze of historians altogether. John Hare combined both an account of conquest with one of popular law-making; an argument that sought the subordination of judicial office to the people of England that rested on an historical claim of William’s 1066 conquest and introduction of Norman laws. In this account, the common lawyers emerged as deceivers of the English people, sustaining the Norman laws that oppressed the English people.

A provisional demarcation of trends in the rhetoric on judicial office up to the end of the Interregnum divides the common lawyers and those outside the common law. We have seen that until the Civil Wars, common lawyers often defended an account of judicial office that emphasised its independence. St German and Coke cast it as grounded in diverse sources, particularly ancient customs of the realm that did not arise from monarchical intervention, and in the reasoning capabilities required to synthesise these sources. Such an account precluded subordination: no single institution dictated the laws judges enforced, and no institution could oversee the process of collating legal sources. These accounts of judicial office diminished the importance of sovereignty. The king was sovereign, but this did not denote a hierarchical power to control the judiciary, but a limited power to create some, though far from all, the laws that judges drew on. Given the diminished role of the sovereign, the powers of this office were not immune to judicial oversight; the judiciary administered the limits of monarchical power, and thus possessed a power against the king.

Against this account of an independent judicial office, monarchs and their defenders advanced an account that treated judicial office as entirely subordinate to the will of the sovereign king. In the accounts of James and Bacon, the king was the only law-maker, and judicial office thus entailed merely the carrying out of these king-made laws. There was no independence for the judiciary, and no judicial power relative to that of the sovereign. It is peculiar that this account of sovereignty, as entailing an exclusive power to make laws that would then be carried out by others, has been artificially elevated by scholars as if it was the only way in which sovereignty was understood. As we can see, it was a factional language deployed to subordinate the 74 judiciary; a partisan polemic that historians have confused for a neutral account of the law’s character.

The waters become muddied as we enter the Civil Wars, where the rhetoric on judicial office multiplied. With the diminished power of the king and Church of England, and increased strength of parliament, an array of new formulations of judicial office emerged. Among these, accounts that emphasised that judicial office was grounded in the populace, like Hare’s, or in parliament, like Bradshaw’s, gained particular traction. The trial of Charles I is particularly illuminating in this context, for it reveals these different accounts of judicial office in action. A prosecution reliant on an account of judicial office’s grounding in ancient laws independent of sovereignty; a king refusing to consider that he could be bound by judicial office; and a judge adamant that parliament held sovereignty and was the sole law-making institution in the realm.

These arguments were repeated and expanded on in the Interregnum. John Warr explicated a judicial office grounded in the good of the people; something he claimed was not ensured by the common law as it stood. Interregnum law reform commissioners offered fierce polemic on judicial office, with the Hale Commission in particular providing a forum for a range of rival understandings of judicial office. The commissions achieved only limited success in amending the law, though; certainly, they achieved nothing as ambitious as the proposals to completely abolish the common law asserted by some commissioners. John Rushworth argued for parliamentary sovereignty, providing an account of judicial office almost identical to that of Bacon and James VI and I, with the exception that the sovereignty to which the judiciary were entirely subordinate was held by parliament, rather than the king. Like Bacon and the former king, too, Rushworth relied on the language of divine right as a source of sovereignty.

Other commissioners relied on the language of divinity even more firmly, seeking to subordinate judicial office to divine will. The civil lawyer Charles Cock called for the abolition of precedent in favour of the law of God as the basis for judicial determination. The nonconformist minister Hugh Peters provided three different bases on which judicial office would rest, each irreconcilable with one another, though sharing an antagonism towards the common law. He called first for divine righteousness as the basis of judicial office; second, for a set of specific Biblical laws to ground judicial office; and third, for laws drawn from the English people. From the sixteenth century to the end of the Interregnum, historiographical 75 claims were deployed occasionally, alongside the language of divine right, ill-defined terms like justice and righteousness, statecraft, and reason, legal and divine. Regardless of their approach, all the authors in question attempted to specify the exercise of judicial office; a subject now neglected by scholars, but clearly a central concern in sixteenth and seventeenth century England.

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Chapter 2: Judicial Office outside the Common Law

The debate over judicial office in the reigns of Charles II and James II followed many of the same linguistic approaches as the pre-Restoration debate. Partisans continued to attempt judicial office’s subordination to the sovereign king or to divine will interpreted by a priesthood who dictated to the judiciary the limits of their office. New rhetorical configurations emerged, too. In particular, the judiciary were cast as responsible for upholding the liberties of English subjects, an argument that in the hands of MPs subordinated judicial office to parliamentary, and judicial impartiality became a central concern. Importantly, the central division of the pre- Restoration dispute remained: commentary on judicial office from outside the common law sought to subordinate judicial office to external control, while the common lawyers, if with less consistency than in the pre-Restoration dispute, defended their official independence.

In the previous chapter, the Civil Wars and execution of Charles I opened the debate over judicial office to increased partisan configurations. In the Restoration, disputes between monarch and judiciary, concerns over Catholicism – particularly around the and the Exclusion Crisis – and other events preceded fresh attempts at describing the appropriate judicial comportment. Indeed, that judicial office was so susceptible to being recast in the cut and thrust of debate should be expected. For it was central to debate: MPs and pamphleteers, in particular, described judicial activity as key to safeguarding the people of England and preventing arbitrary government. It was thus once again through thinking about judicial office that many of the realm’s most pressing crises were addressed.

This chapter focuses on those outside the law who sought to set the limits of judicial office. We will encounter a range of new actors whose polemical interventions in the debate over judicial office rarely revealed a sympathy towards the judiciary or the judiciary’s articulations of their office. Quaker pamphleteers, popular pamphleteers writing in verse, MPs, and Church of England bishops and priests all sought to shape judicial office. The most common and consistent arguments in this dispute sought the subordination of the judiciary to divine will, king, or parliament, all arguments with pre-Restoration roots, but these arguments shared space with many other treatments of judicial office. In each case, judicial office was approached through the idiom we have been studying so far, a casuistic language focused on the explication of the duties of a particular officeholder – the judge – in particular circumstances.

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Clerical preaching on judicial office pursued two lines of argument that we encountered in the previous chapter. The first was the account of sovereignty’s divine foundation in the office of the king, deployed by James VI and I and Bacon. Here, ecclesiastical authorities asserted judicial subordination to the king on the grounds of his godly status. The second account claimed that judges themselves were products of divine will, and were thus entrusted with performing God’s will, the explication of which was a task for clerical office. As Hugh Peters had argued during the Interregnum, these priests declared that the judiciary were subordinate directly to the clergy. The difference between these two arguments is significant, for in the second account, we can see a repudiation of a model of law that gave pre-eminence to the sovereign; clerical, not kingly authority, was crucial to the operation of the law.

Though MPs continued to attempt the subordination of judicial to ministerial office, with the restoration of the crown, these attempts were unsurprisingly tamer than those of the Interregnum. No longer do we encounter declarations of parliamentary sovereignty, with the judiciary subordinated to an unrestrained House of Commons, as Rushworth and Bradshaw had argued. Instead, MPs in the House of Commons sought to prescribe the limits of judicial office, in particular through attempted impeachments of judges; an assertion of their authority over the judiciary, if not a full-fledged declaration of their sovereignty. In particular, MPs sought to apply the language of the liberties of subjects to judicial office.

The liberties of subjects were not a new concern in England, but it was in the Restoration that protecting the liberties of subjects was cast as an attribute of judicial office by MPs, particularly in the House of Commons, and judges themselves.1 What was entailed in the liberties of subjects varied from account to account, for it was a topic particularly vulnerable to changes in the broader rhetorical and institutional landscape of Restoration England. It is important to recognise that this debate rarely turned into one over something so abstract as ‘liberty’, cohering instead around a discussion of the particular liberties that attached to subjects of the crown. In other words, it was again expressed in the idiom of office; it was about those actions permissible to those defined as subjects of the realm.

1 Russell claims the liberties of subjects rose to rhetorical prominence during the parliamentary debates of 1628 (Russel, Parliaments and English Politics, Chapter 6). 78

Despite the extensive rhetoric by legislators and judges on the liberties of subjects, scholars have tended to focus their accounts on liberty in general, which they have described as a theory. Skinner, for example,2 claims to recover a seventeenth century theory of liberty he terms a ‘neo-roman understanding’, ‘neo-roman theory’, or ‘ideology’, of ‘civil liberty’.3 Skinner’s neo-Roman liberty treated freedom as conditional on self-government, as self-government prevented a lapse into slavery,4 contrasting this to freedom understood simply as the absence of restraint.5 Chapters 2 and 3 challenge this approach in two ways. First, they sustain Chapter 1’s claim that office was the key rhetorical category around which debate converged, rather than theory. Where ‘theory’ appeared in this debate was as a dysphemism slung by Hale at Hobbes. Second, in focusing on liberties rather than liberty, these chapters give preference to the rhetoric dominant in the seventeenth century. In doing so, they highlight the rhetorical priorities of seventeenth century actors, rather than anachronistically elevating the marginal language of liberty, which was far less common than it is today.

Alongside defending liberties of subjects as a core commitment of judicial office holding, another fresh focus for the dispute over judicial office in the Restoration was judicial impartiality. The demand that judges exercise their office impartially was particularly prominent in the works of clergy and pamphleteers. It is unclear why this subject became a key concern in the Restoration; we did not encounter it as a key component of judicial office in the previous chapter. The most likely cause was an increased sense that judgments in criminal cases were weighted unfavourably towards the king, likely fed by a memory of judgments such as the Five Knights Case; certainly, pamphleteers expressed a concern that the judiciary unfairly sided with the king against his subjects.

A key finding here is that impartiality was not a stable term, for sermons and pamphlets offered two rival accounts of what it meant for a judge to be impartial: to treat opposing parties equally;

2 See also J. H. Shennan, Liberty and Order in Early Modern Europe (London: Longman, 1986); Christopher Hill, Liberty against the Law (New York: Penguin Books, 1996); Gaby Mahlberg, ‘The Republican Discourse on Religious Liberty during the Exclusion Crisis’, History of European Ideas 38:3 (2012), 352-69; Hilary Gatti, Ideas of Liberty in Early Modern Europe (Princeton: Princeton University Press, 2015); C. B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 2010); Annabel Patterson, Early Modern Liberalism (Cambridge: Cambridge University Press, 1997). 3 Skinner, Liberty before Liberalism, ix, 59. A more extreme formulation of Skinner’s approach can be found in Philip Pettit’s work, which develops a concept of freedom as non-domination into a full proposal for modern political reform: Pettit, Republicanism; Philip Pettit, On the People’s Terms (Cambridge: Cambridge University Press, 2012). 4 Skinner, Liberty Before Liberalism, 23-46; Skinner, ‘States and the Freedom of Citizens’, 13, 15. 5 Skinner, Liberty before Liberalism, 5-10. 79 or to uphold the king, who was the foundation of all law. That impartiality was a contested term is worth reflecting on, for judicial impartiality understood as equitable treatment of rival parties is considered a cornerstone of common law judicial office today.6 The history we are uncovering reveals that not only was impartiality not always considered a component of judicial office, for not all treated the judiciary in these terms, but that the definition of impartiality was subject to partisan specification. Our present understanding of judicial office is an artefact of this history of contest over judicial impartiality.

I will give particular attention to the writings of Thomas Hobbes in this chapter, especially A Dialogue between a Philosopher and a Student, of the Common Laws of England. A caveat must be provided here. In the course of this account of Hobbes’s contributions to the debate on judicial official, I will discuss De Cive and Leviathan alongside the Dialogue. Chronologically, the first two of these texts ought to have appeared in the preceding chapter: De Cive was published in 1642, Leviathan in 1651. I have chosen to keep Hobbes’s works together, rather than separating them across chapters, for two reasons.

First, Hobbes deployed similar attacks on judicial office in De Cive and Leviathan to his extended assault on judicial office in the Dialogue. The former texts thus help illuminate the latter. Indeed, Hobbes is notable for although his commentary on judicial office stretched from the start of the Civil Wars to well into Charles II’s reign, his arguments remained remarkably similar. Despite the rise of commentary on judicial impartiality and the liberties of subjects, Hobbes gave no consideration to these concerns, orienting his work towards the pre-Civil Wars context studied in Chapter 1. His arguments closely followed those of James VI and I and Bacon, with the exception of their arguments for divine right, while explicitly repudiating Coke’s.

Second, keeping Hobbes’s texts together helps to make the present argument clearer. These chapters are an attempt to capture the vitality and centrality of the debate over judicial office, and the range of articulations of judicial office. They are a demonstration that the work of the judiciary was hotly contested in the Restoration, preceding an investigation over how the judiciary responded to this dispute in the courtroom in Part 2. To this end, they seek to recover

6 See, for example: ‘Independence’, Courts and Tribunals Judiciary, 2018, https://www.judiciary.uk/about-the- judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/independence/; Murray Gleeson, ‘The Right to an Independent Judiciary’, Fourteenth Commonwealth Law Conference, London, September 2005. 80 a range of texts neglected by historians, which were serious engagements in the pressing dispute over judicial office. We saw a number of these in the previous chapter, and will encounter more here; often texts that are neglected by scholars for falling afoul of the reifications historians have relied on to interpret this past, such as Pocock’s opposition between conquest theory and the common law mind.

Other texts, and Hobbes’s in particular, are central to the existing scholarship on Restoration England. These chapters demonstrate that these texts have been subjected to mischaracterisation, their treatment as theoretical having occluded the ways in which they relied on the casuistical language of office. In short, texts that have taken judicial office as a central feature – that have taken judicial practice in court as a key aspect of their argument – have been described as theory, ideology, or historiography, among other labels. Skinner and Pocock have both approached Hobbes as a theorist of conquest, and his work has generally been described by historians as political theory. His Dialogue is a key text in the literature on the ancient constitution. As we will see, historiography was marginal to Hobbes’s argument in the Dialogue, which was focused on subordinating judicial office to sovereignty, an argument that was a consistent feature across his works. Approaching Hobbes’s texts simultaneously, rather than splitting them across chapters, makes clear this focus on judicial office, and allows us to address the errors of existing scholarship more directly.

One result of this recontextualisation of Hobbes’s canon within the literature on judicial office is that we will be better able to view the rhetorical skirmishes he was engaged in. A by-product of intellectual historians’ over-reliance on theory as an analytical category is that they have cast the past into strict factional divisions, often through binary demarcation of apparent theoretical groups. The division between conquest theory and the common law mind is obviously one species of this, but we might also consider Skinner’s opposition between neo- Roman liberty and Hobbesian liberty.7 Rather than theoretical reflection, neatly demarcatable, the conflict on judicial office was messy and imprecise; inevitable given its immediacy. By situating Hobbes within the world of office, we will see that he wrote immersed in a much richer context of varied commentary on judicial office, and that his alliances and oppositions were more complicated in the cut and thrust of this debate.

7 See, for example, Skinner, Liberty Before Liberalism. 81

This chapter will be divided not chronologically, but grouped by text: sermons; parliamentary debates; pamphlets; and Hobbes’s writings. The reason for this organisation is that although judicial office went through respecification according to the events of the Restoration, each of these areas featured similar rhetorical approaches. Though judicial office might receive different treatments at different times, the actors within these groups relied on similar rhetorical resources. The exception here is pamphlets, an admittedly ill-defined category that offered highly divergent readings of judicial office. Despite this slight imprecision, the benefit of dividing texts in this way is also that it sharpens our sense of the variety of rhetorical approaches to judicial office, giving us a clear sense of the spread of debate.

I Along with instability in the judiciary, the Civil Wars had also resulted in the disestablishment of the Church of England,8 and it was only with the Restoration of the crown that the Church was restored.9 Along with this re-establishment came a brace of statutes that enshrined the Church’s centrality to the Restoration regime and prohibited dissent. They required taking the oath of allegiance and the Sacrament in accordance with Church of England practice to hold civil office,10 prevented meetings of nonconformists,11 particularly Quakers,12 prevented nonconforming preachers from returning to their parishes,13 and established ecclesiastical uniformity.14 Though these statutes will receive greater attention in Part 2 of this thesis, the key point to note here is that the Restoration clergy operated in a context where legislation enforced adherence to their Church, and this context goes some way to explaining the confidence with

8 ‘Historical Collections: Abstract of Acts in the ’, in Historical Collections of Private Passages of State: Volume 3 (London: 1721), 1381-8; ‘October 1646: An Ordinance for the abolishing of Archbishops and Bishops’, in C. H. Firth and R. S. Rait, eds., Acts and Ordinances of the Interregnum, 1642-60 (London: 1911), 879-83. 9 Legislation restored the ministry of the Church in 1660 (‘Charles II, 1660: An Act for the Confirming and Restoreing of Ministers’, in Statutes of the Realm: Volume 5, 242-46), though the Church’s restoration is typically dated from the 1662 Act of Uniformity (‘Charles II, 1662: An Act for the Uniformity of Publique Prayers’, in Statutes of the Realm: Volume 5, 364-70. 10 ‘Charles II, 1661: An Act for the well Governing and Regulating of Corporations’, in John Raithby, ed., Statutes of the Realm: Volume 5, 321-3. ‘Charles II, 1672: An Act for preventing Dangers which may happen from Popish Recusants’, in Statutes of the Realm: Volume 5, 782-5. This latter act also required officeholders to deny transubstantiation. 11 ‘Charles II, 1664: An Act to prevent and suppresse seditious Conventicles’, in Statutes of the Realm: Volume 5, 516-20; ‘Charles II, 1670: An Act to prevent and suppresse Seditious Conventicles’, in Statutes of the Realm: Volume 5, 648-51. 12 ‘Charles II, 1662: An Act for preventing the Mischeifs and Dangers that may arise by certaine Persons called Quakers’, in Statutes of the Realm: Volume 5, 350-1. 13 ‘Charles II, 1665: An Act for restraining Non-Conformists from inhabiting in Corporations’, in Statutes of the Realm: Volume 5, 575. 14 ‘Charles II, 1662: An Act for the Uniformity of Publique Prayers’. 82 which they denied judicial independence, often claiming an authority over the judiciary for themselves.15

The most common example of Church of England clergy directly confronting common lawyers with their accounts of judicial office was in sermons at the opening of assizes, the regional law courts travelled to by the Westminster judiciary in order to hear matters throughout the realm. These sermons provided an interface between England’s most senior judges and some of its most senior clergy. Sermons have increasingly attracted attention from scholars, most notably in Clark’s English Society, which cast the clergy as key to understanding the English Restoration.16 Discussion of sermons, though, has not considered such preaching in the context of rival accounts of judicial office; they are yet to be approached as official polemic in a divisive legal landscape.17 Indeed, Clark’s failure to contextualise sermons against rival accounts of the law results in him simply taking the claims of sermons for granted, and interpreting legal evidence in the terms of sermons; a failure to recognise the polemic at work.

Two rival accounts of judicial office featured in assize sermons, both of which sought the judiciary’s subordination. The first account presented the judiciary as directly subordinate to the clergy. God was the foundation of English law, and his will was to be interpreted by the clergy for transmission to an obedient judiciary. Implicit in this argument was a denial not only of judicial independence but of the arguments of James VI and I and Bacon, for the sovereign king was marginalised and the juridical authority of the clergy made pre-eminent. The second account resembled the texts of James VI and I and Bacon, asserting the judiciary’s subordination to a divinely willed monarch. In these sermons an unrestricted monarch commanded the judiciary, with the monarch’s will setting the limits of judicial office, an official relationship set in place by God. The impartiality of judicial office was central to both

15 Grant Tapsell has shown that the Restoration clergy was a robust institution, especially in therms of preaching and sermon publication: Grant Tapsell, ‘Pastors, Preacher, and Politicians: The Clergy of the Later Stuart Church’, in The Later Stuart Church, 71-100. 16 Clark, English Society 1660-1832, 31, 109-11. For a rich account of assize sermonising, see Hugh Adlington, ‘Restoration, Religion, and Law: Assize Sermons, 1660-1685’, in Hugh Adlington, Peter McCullough, and Emma Rhatigan, eds., The Oxford Handbook of the Early Modern Sermon (Oxford: Oxford University Press, 2011), 423- 41. 17 Though for initial studies of clergy-lawyer dispute, see: C. W. Brooks, Pettyfoggers and Vipers of the Commonwealth (Cambridge: Cambridge University Press, 1986), 132-4; Cynthia Herrup, The Common Peace (Cambridge: Cambridge University Press, 1987), 51-3; Ann Hughes, Politics, Society and Civil War in Warwickshire (Cambridge: Cambridge University Press, 1987), 68-9; Kevin Sharpe, The Personal Rule of Charles I (New Haven: Yale University Press, 1992), 425; Steve Hindle, The State and Social Change in Early Modern England, c. 1550-1640 (Basingstoke: Macmillan, 2000), Chapter 7; Prest, The Rise of the Barristers, 224-5. 83 these arguments, though defined differently. In the former account, clerical definitions of impartiality centred on the need for judges to arbitrate equally between parties. In the latter, as the king was the foundation of law, impartiality involved kingship’s defence.

We can see an example of the first type of clerical account of judicial office in an assize sermon preached by Robert Harrison in 1670. Harrison claimed first that judicial office had a divine foundation; it was grounded not in ancient law nor sovereign will. Preaching to the justices, Harrison developed an account of English government with the Church at its apex. For any reform to take place, it must begin in the Church, before flowing to the state, a process he elucidated through a metaphor of a ‘stream of Justice’ flowing from former to latter.18 Turning to the judiciary specifically, Harrison explained that God ‘commandeth’ the judiciary, as he was the highest judge of all: ‘the Judge of all the world’.19 Proffering a scheme of law that ostensibly resembled St German’s, Harrison claimed that judges upheld the laws of God and the laws of the land.20 He intensified the ecclesiastical elements of the argument, though: even the laws of the land were ultimately from God, to whom the English owed ‘unfeigned thankfulness’.21 Judges failing to follow God’s will provoked God, a threat Harrison ominously left unexplained.22

In the course of this explanation of judicial office’s divine derivation, Harrison offered an extensive reflection on the divine necessity of judicial impartiality, which he described as ensuring a ‘pure administration of Justice’.23 In particular, he defined impartiality as the need to hear conflicting parties ‘indifferently’, an argument he supported with a range of Biblical citations.24 Illustrating his point through his aquatic metaphor, Harrison explained that judges must allow all objects to flow through the stream in the same way: ‘great loggs and trees’ must be ‘carried down’, but also ‘small chips’.25 He offered further Levitical citations to support his point, arguing that judges should neither favour the poor nor mighty, but be guided by ‘righteousness’ in approaching all parties equally.26

18 Harrison, Two Sermons Lately Preached at the Assizes in St. Maries Church in Leicester, 3. 19 Ibid., 16. 20 Ibid., 18. 21 Ibid., 25. 22 Ibid., 23. 23 Ibid., 16. 24 Ibid. 25 Ibid., 19. 26 Ibid., 20. 84

Similar sentiments animated other members of the clergy in their commentaries on judicial office. On 6 March 1675, William Stainforth gave an assize sermon before two judges, Timothy Littleton, a , and Vere Bertie, a provincial judge who was appointed to the Exchequer later that year. Like Harrison, Stainforth argued that the common law had its foundations in God, which meant that judicial officeholders were required to carry out divine will.27 In particular, Stainforth described judges as ‘Gods Vicegerents’, for their role in ensuring the law’s religious foundations were maintained.28 This phrase is noteworthy as Peters had used the same phrase in Good Work for a Good Magistrate. Peters had been executed in 1660 for treason; his antipathy towards the common law had lived on in the Restoration clergy. Indeed, in the similarities in the assaults on the common law by Peters and Stainforth, we can see that an antipathy towards the common law united nonconformists, like Peters, and establishment clerics, like Stainforth. Despite their differing approaches to religious worship, Stainforth and Peters shared a sense that the common law was a subordinate institution, entrusted with carrying out the will of its clerical superiors.

Like Harrison, Stainforth’s aggression towards the common law extended to divine condemnations of those cases in which judges failed to uphold divine will. When acting as God’s vicegerents, Stainforth explained that judges ‘shine with Divinity’.29 A failure to uphold his will, though, was to ‘reproach the divine Power’.30 Stainforth developed this into an account of the Civil Wars, for which he blamed the common lawyers: the Wars had come about from the judiciary’s failure to dispense law according to God’s will.31 Stainforth also shared with Harrison a focus on judicial impartiality, though discussed it in different terms. Where Harrison had cast impartiality as the need for judges to treat parties equally, Stainforth focused on the psychological qualities judges needed to cultivate to act in their office; not a contradictory account so much as one with different emphases. For Stainforth, judges were required to subdue their passions to ‘distribute justice’ without ‘Partiality’.32 Impartiality was not so much about favouring rich or poor against one another, as Harrison had claimed, as it was about reigning in one’s emotional excess.

27 William Stainforth, A Sermon Preached March 6. 1675. (York: 1676), 7. 28 Ibid., 14. 29 Ibid. 30 Ibid. 31 Ibid., 22. 32 Ibid., 14. 85

A rival clerical account of judicial office can be found in Bishop Thomas Cartwright’s assize sermon preached on 17 July 1676. Cartwright’s account of judicial office hinged on the claim that Charles II’s reign was divinely willed. Cartwright argued that the judiciary formed part of God’s ‘Government over Mankind’, part of a celestial scheme for the governance of humans that also involved his ‘Ministry of Angels’.33 Explicating the degree to which the world was the product of God’s will, Cartwright claimed that God had willed the existence of kings and Charles II’s restoration to the throne.34 Expanding on this claim, Cartwright argued that the king was the foundation of all law: ‘Law without the King is but a Dead Letter, He is… the Living Law’.35 We can recall a similar claim in Bacon: laws were dead letters without Queen Elizabeth to give them life.

Judicial impartiality for Cartwright thus diverged from that of Harrison or Stainforth. For Cartwright, the administration of ‘Impartial Justice’ consisted in the upholding of monarchy.36 His reasoning is clear: if the king was the law, then impartial administration of the law entailed support for the king. We can see here a reassertion of the divine right arguments James and Bacon had used: God willed the king, and the king made law, and the judiciary upheld the king’s will. Where Harrison and Stainforth had sought direct clerical control of the judiciary, Cartwright asserted the subordination of judicial to monarchical office, which was itself supported by an obedient clergy. Though in all these accounts the judiciary were servants of God’s will, for Harrison and Stainforth this was conveyed through clergy, and for Cartwright through king.

In a 1683 sermon, John Standish articulated a similar version of this argument that an unrestrained monarchy was divine and judicial impartiality involved support for monarchy. Standish described the king as the representative of God on earth, castigating enemies of the crown for failing to acknowledge ‘the Image of God in his Soveraign’.37 It was merely a doctrine for ‘Rebells’ that the law could provide a ‘check for Princes’.38 Regarding impartiality, Standish explained that judges were tasked with ‘vigorously and impartially’ executing the laws, and ‘chiefly’ executing those laws which ‘fence and support the Government’.39 In short,

33 Thomas Cartwright, A Sermon Preached July 17 1676 (London: 1676), 1. 34 Ibid., 6, 3. 35 Ibid., 23. 36 Cartwright, A Sermon Preached July 17 1676, 39. 37 John Standish, A Sermon Preached at the Assizes at Hertford. March the 9th, 1682/3 (London: 1683), 5. 38 Ibid. 39 Ibid., 28-9. 86 impartiality entailed the especial enforcement of monarchy. Revealing the porousness of the vocabulary of office, and again confirming that the attempt to carve these disputes into clean ideological factions is misguided, Standish followed his defence of unlimited sovereign power with a reference to the antiquity of the Church-state union.40 References to the immemorial were not the preserve of a ‘common-law mind’, as Pocock would have it, but were deployed in a range of ways, including to defend the supremacy of the Church and king.

An example of the extent to which Standish wove together multiple rhetorical strands in the debate over judicial office, he echoed Stainforth and Peters in describing judges as God’s vicegerent.41 Standish deployed this rhetoric despite the divergence in his argument from his predecessors. Stainforth and Peters had both defended an account of judicial office in which priests directly interpreted God’s will to the judiciary. Standish proffered an account in which the king was godly, and the king commanded judicial office, yet still leant on the image of the judiciary’s divine vicegerency; no longer a term exclusive to defenders of ecclesiastical independence, it was now deployed in defence of absolute sovereignty. Once more, we encounter not discrete theories, but the combining and recombining of a range of terms in a constantly shifting debate.

The priest George Berkeley, sermonising under James II, offered a return to an account of judicial office as anchored principally in God, rather than the king, with the judiciary servants of divine will as interpreted by the clergy, not an uninhibited sovereign who held the throne by godly intervention. Such a move is unsurprising: preaching under a Catholic king, the Anglican priest opted to anchor judicial office in clergy, not crown. Berkeley described God as the ‘Foundation of Justice’,42 and provided an account of judicial office that emphasised that God ‘ordained and constituted Magistrates as his and the King’s Ministers of Justice’.43 Though he did not explicitly use the term ‘impartial’, Berkeley asserted the need to dispense ‘Justice in an even Balance’, which he explained meant that the innocent were ‘protected and relieved, whilst the wicked man is caught’.44 We do not see, that is, an assertion of impartiality as a defence of monarchy, as we saw in Cartwright’s and Standish’s sermons, but of impartiality as the equal treatment of parties to a case, defended previously by Harrison.

40 Ibid., 6. 41 Ibid., 21. 42 George Berkeley, A Sermon Preached at the Assizes held at Leicester (London: 1686), 7. 43 Ibid., 24. 44 Ibid., 25. 87

II The clergy were not the only group to reflect on the appropriate comportment of judges during the Restoration. Judges not only often held seats in parliament – Coke himself had served as a House of Commons MP – but, as we saw in the previous chapter, the judiciary and their work was a consistent theme of parliamentary business. Where Interregnum parliaments had been more concerned with legislating law reform, Restoration MPs took a greater focus to regulating particular instances of perceived judicial misconduct, a process that necessitated scrutiny of the scope of judicial officeholding. These accounts of judicial office were rarely sympathetic to the judiciary, and constituted attempts at rendering judicial office subservient to parliamentary office.

Judicial office was central to Commons debates, once in 1667 and twice in 1680, with the first two of these debates centring on the need for the judiciary to defend subjects’ liberties, while only the third debate featured deployment of the term ‘liberty’. In the first two debates, the defence of subjects’ liberties was held as central to judicial office, though the actual content of these liberties differed depending on the particular judicial acts in question. In December 1667, upholding the liberty of juries from being fined and imprisoned was declared central to judicial office; in November 1680, the defence of the liberty to petition for parliament to sit was a necessary attribute of judicial office. In December 1680, the liberty to be bailed where legal was held relevant to the broader liberty of subjects, which judges preserved. The point to note here is the contingency of these debates, for each was improvised to respond to particular judicial practices at hand. Rather than a stable legal theory undergirding the debate over judicial office, we can see the capriciousness of the contest, with judicial office redescribed over-and- over again, subjected to the changing tides of the Restoration regime.

In December 1667, concerns about the treatment of a jury earlier that year by Justice John Kelyng resulted in House of Commons MPs defining the impunity of juries as a liberty of subjects. Kelyng was at the time Chief Justice of the Court of King’s Bench. Disapproving of a grand jury’s failure to find ‘a bill of murder’ in a 1667 trial, Kelyng fined the jury members 20 pounds each.45 , the MP who led the jury, referred the matter to the House

45 The King against Sir H. Windham and Others, Jurors of Somersetshire (1667) 2 Keb. 180. 88 of Commons, who appointed a committee to investigate Kelyng’s approach.46 Between 9 and 11 December, the committee presented their report to the House of Commons.47

Committee MPs asserted that fining juries was ‘of dangerous Consequences to the Lives and Liberties of the People of England’, and ‘undervalued, vilified, and contemned, Magna Charta, the great Preserver of our Lives, Freedoms, and Property’, risking ‘the introducing of an arbitrary Government’.48 Kelyng escaped punishment for his treatment of this jury, but MPs declared fining and imprisoning juries illegal.49 The invocation of here is relevant, for it revealed an attempt to centre statute – the product of king and parliament – as the pre- eminent legal source of English liberties. Magna Carta was typically described as declaring or affirming ancient common law, a rhetorical formulation that located English liberties within the province of the common lawyers,50 but here we see an assertion of parliament’s superiority over the judiciary in the context of MPs dictating to the judiciary the expectations of their office.

During Charles II’s prorogation of parliament between August and October 1680, the regional justice George Jeffreys declared petitioning for parliament to sit illegal, describing a London petition requesting such sitting as ‘Treason’.51 Upon parliament’s resumption, MPs were quick to declare that such petitioning was a ‘Liberty of the Subject’.52 This was re-affirmed during debate on 13 November.53 The MP Silus Titus noted the necessity of parliament sitting: only parliament could successfully prevent the Popish Plot – the alleged Catholic conspiracy to kill the king and take the crown – from coming to fruition.54 This point was especially pertinent at the time: the Exclusion Bill –MPs’ attempt to legislatively prohibit a Catholic monarch – had passed the House of Commons two days earlier. MPs resolved to request Jeffreys’ removal

46 ‘HCJ Volume 9: 16 October 1667’, JHC: Volume 9 (London: 1802), 4; ‘HCJ Volume 9: 15 November 1667’, JHC: Volume 9, 20-1; ‘HCJ Volume 9: 18 November 1667’, JHC: Volume 9, 21-2. 47 ‘HCJ Volume 9: 9 December 1667’, JHC: Volume 9, 34-5. ‘HCJ Volume 9: 10 December 1667’, JHC: Volume 9, 35. 48 ‘HCJ Volume 9: 11 December 1667’, JHC: Volume 9, 35-6. 49 ‘HCJ Volume 9: 13 December 1667’, JHC: Volume 9, 37. This conclusion was confirmed at common law in 1670 by Bushel’s Case, in which Justice Vaughan set out restrictions on imprisoning juries (Bushel’s Case (1670) 124 ER 1006). 50 Corinne Weston, ‘England: Ancient Constitution and Common Law’, in J. H. Burns and Mark Goldie, eds., The Cambridge History of Political Thought, 1450-1700 (Cambridge: Cambridge University Press, 1991), 374-411, at 378-9. 51 ‘Debates in 1680: November 12th-15th’, in Anchitell Grey, ed., Grey’s Debates of the House of Commons (hereafter Grey’s Debates): Volume 7 (London: 1769), 459-77. 52 ‘HCJ Volume 9: 27 October 1680’, JHC: Volume 9, 640-1. 53 ‘HCJ Volume 9: 13 November 1680’, JHC: Volume 9, 652-3. 54 ‘Debates in 1680: November 12th-15th’. 89 from office, though he resigned before this could be done on 2 December.55 Once more, an articulation of judicial office was corralled from the immediate milieu.

It was only in December 1680, in a debate over bail, that MPs spoke of liberty as a general category. Where they spoke otherwise of liberties or of a particular liberty, they declared denial of legal bail a ‘high Breach of the Liberty of the Subject’.56 The statement arose in debate over a report delivered to the House of Commons on 23 December 1680, brought by a committee appointed to investigate the behaviour of judges that expressed concerns about judges refusing to grant bail where legal. The report led to the attempt to impeach justices , Francis North, William Weston, and Thomas Jones.57 Only Scroggs ultimately faced impeachment proceedings,58 which he survived through Charles II’s prorogation of parliament on 10 January 1681,59 and dissolution of the subsequent parliament on 28 March,60 before Charles revoked his judicial patent in April 1681.

Though this instance of parliamentary rhetoric on judicial office reveals that MPs were not consistently dedicated to the language of liberties over liberty, this rhetoric remained anchored to office, rather than theory. Liberty was an attribute of subjecthood, and applied regarding certain problems in certain circumstances, as here in relation to the bail of subjects in criminal cases. Moreover, MP’s rhetoric lacks the stability we generally associate with a theory. Two months before, the same parliament had made declarations regarding ‘a Liberty’ of subjects. The question of bail was also tied to parliament’s immediate circumstances. Denial of bail threatened to ‘introduce Popery and an Arbitrary and Tyrannical Government’.61 MP’s attack on North, Scroggs, Weston, and Jones was thus filtered through their concerns expressed in the Exclusion Crisis. We see a piecemeal attempt at tacking together a range of rhetoric to enforce a particular image of judicial officeholding.

55 Ibid. 56 ‘HCJ Volume 9: 23 December 1680’, in JHC: Volume 9, 687-92. 57 Ibid. 58 The Commons attempted to impeach Scroggs on 7 January, 1681 (‘HCJ Volume 9: 7 January 1681’, in JHC: Volume 9, 701-702), a move the Lords opposed (‘House of Lords Journal Volume 13: 7 January 1681’ (hereafter ‘HLJ’), in Journal of the House of Lords (hereafter JHL): Volume 13 (London: 1767-1830), 736-739). Scroggs himself denied the charges against him (‘HLJ Volume 13: 24 March 168’, in JHL: Volume 13, 751-753). 59 ‘HCJ Volume 9: 10 January 1681’, in JHC: Volume 9, 703-704. 60 ‘HCJ Volume 9: 28 March 1681’, in JHC: Volume 9, 712. 61 ‘HCJ Volume 9: 3 January 1681’, in JHC: Volume 9, 696-9. 90

III Pamphlet literature reveals many of the same rhetorical tropes deployed to try and shape judicial office. Pamphleteers sustained the focus of sermons and parliamentary debate on questions of judicial impartiality and the protection of the liberties of subjects. Pamphlets were especially critical of the judiciary, though. Where sermons had sought to arrogate the judiciary to either clerical or monarchical control, and MPs had chastised judges for instances of failing to uphold the liberties of English subjects, pamphlets featured often vitriolic accusations against judges. At their most extreme, pamphleteers called for the execution of those judges they saw as having corrupted judicial office.

Though he did not call for the execution of the judiciary, the Quaker pamphleteer William Smith was a particularly stern critic of supposed judicial partiality. Smith had a history of legal entanglements; he was repeatedly jailed for failing to pay , for participating in conventicles, and for failing to swear the oath of allegiance. Smith also wrote extensively, producing over fifty pamphlets in his lifetime on largely religious subjects. His The Innocency and Conscientiousness of the Quakers Asserted and Cleared from The Evil Surmises, False Aspersions, and Unrighteous Suggestions of Judge Keeling dealt directly with judicial office in the form of invective against alleged office abuse on the part of King’s Bench Chief Justice Kelyng.62

Kelyng led a King’s Bench that oversaw the conviction of a group of Quakers for refusing to take an oath of loyalty, in breach of the Quaker Act. Given his own history of falling afoul of the law, it is unsurprising that Smith inserted himself into the controversy around the case. Smith opened by claiming that the legislation against Quakers was evidence that the Devil had ‘got rule in Man’s heart’,63 for a congregation of Quakers ought not be deemed an illegal sect – ‘should not be called a Faction’ – but considered ‘a Lawful Society’.64 The remainder of the pamphlet was presented as a dialogue between Smith and Kelyng, with passages of the latter’s judgment followed by Smith’s critiques of them.

Smith’s critiques rested on an historical account of law; again, one that bears no resemblance to the ancient constitution. For Smith, law’s foundation was in man’s corruption. At first, men

62 William Smith, The Innocency and Conscientiousness of the Quakers Asserted and Cleared (London: 1664). 63 Ibid., 3. 64 Ibid., 4. 91 held in their heart ‘the Law and Righteous Principle of Life’, and it was only their ‘degeneration’ from this original state, resulting in ‘Acts of Cruelty, Violence, Oppression and Idolatry’, which necessitated the introduction of ‘Outward Law’.65 Such laws were unnecessary for Quakers, though, for they, like the first people, had ‘the Law written in their hearts’.66 Despite this, Quakers were ‘persecuted’, thrown ‘into nasty Holes and Prisons’. Smith emphasised the injustice: those ‘People against whom no evil can be justly charged’ were ‘the greatest Sufferers in this Generation’.67

For Smith, judicial office, when appropriately constituted, worked to preserve the safety of government. Though Smith’s Kelyng had supposedly defended such an account of office in his prosecution of the Quakers, Smith alleged Kelyng had done so mistakenly. Smith’s Kelyng claimed that the Quaker refusal to swear oaths ‘tends to the Subversion of the Government’.68 Indeed, the refusal to swear was not because the Quakers were especially lawful, but amounted to a refusal to be bound ‘in Conscience’, for ‘an Oath binds the Conscience’.69 Without oaths, the entire legal framework of the English realm was under threat, as neither ‘Law’ nor ‘Justice’ would survive.70

Smith’s responded historiographically: for governments preceded swearing, government was not contingent on oath-taking for its existence. He mocked the claim that swearing guaranteed governmental stability, recalling the Civil Wars to remind Kelyng that ‘many have sworn to one Government and Government, and then to another, and so to a third’. Indeed, Quakers always ‘desire the good of all that are in Authority’.71 Judges were simply blinded by ‘envy’, unable to recognise that Quakers were an especially lawful community. Adopting the Restoration idiom of judicial office, Smith accused Kelyng of partiality, insisting that judges ‘ought to be impartial’.72 For Smith, impartiality amounted to ‘judging for’ God, terrorising the evil while praising those who did good.73 In so articulating judicial impartiality, Smith offered a definition of impartiality unlike those we encountered in sermons. Rather than treating parties

65 Ibid., 5. 66 Ibid., 6. 67 Ibid. 68 Ibid., 10. 69 Ibid. 70 Ibid. 71 Ibid., 11. 72 Ibid. 73 Ibid., 11-2. 92 equally or upholding monarchy, Smith saw impartiality as upholding God’s will, and saw such judicial impartiality as preserving government, the appropriate end of judicial office.

The pamphlet literature on judicial office is vast and, as might be expected because of this, varied. Moreover, the attention afforded judicial office shaded into attention towards other legal offices. In 1676, the anonymous author H. C. published a pamphlet setting out the office of the lawyer. We can see in the pamphlet some of the rhetorical tropes we have previously encountered with regard to judges redeployed here to shape another legal office. In particular, H. C. emphasised the need to avoid injustice for financial gain, a subject that received greater attention in the , and the importance of precedent. An ‘Honest Lawyer’ could not be drawn to injustice through financial reward, for ‘he weighs the Cause more than the Gold’, and ‘puts back the Fee’ rather than becoming a ‘Pimp for Injustice’.74

In rhetoric approaching that of Coke for its dedication to a rich knowledge of the law’s history as a grounding for legal office, H. C. extolled the value of knowing precedent, for a lawyer ought to draw ‘his knowledge from the Original Springs… of the Law’, and thus ‘aims to be well vers’t in the Practice of every Court, and rightly to understand the Art of Good pleadings’.75 Such a detailed knowledge of the law enabled a lawyer to embody legal reason, giving him the ability to rigorously apply precedent, and where precedents did ‘not keep pace with Justice’, to break from it provided his work was still ‘grounded on Reason’.76 Legal office was precedent-based, but also entailed a flexibility to move beyond precedent where necessary, provided that a reason crafted from legal learning prevailed.

Already subject to intensive partisan specification, the judiciary came under further debate in the wake of ’s allegations of the Popish Plot. In August 1678, Oates alleged that there existed a Catholic conspiracy to assassinate the king, paving the way for his Catholic brother, the Duke of York, to take the throne.77 The Plot divided English government and commentators on it: MPs in the Whig-dominant House of Commons purported to trust the credibility of Oates78; Charles strategically indicated that he would ‘forbear any Opinion’, and

74 H. C., The Character of an Honest Lawyer (London: 1676), 2-3. This edition is not numbered after the second page, but I footnote based on how pagination would have proceeded. 75 Ibid., 4. 76 Ibid. 77 ‘HLJ Volume 13: Titus Oates’ narrative’, JHL: Volume 13, 313-30. 78 MPs resolved that warrants would issue for the arrest of Benedictine monks accused by Oates of contributing to the Plot (‘HCJ Volume 9: 23 October 1678’, JHC: Volume 9, 518-9. 93 would ‘leave the Matter to the Law’79; and Tory pamphleteers derided both Oates and the Plot as a Whig-orchestrated fabrication.80 The judiciary were implicated in the controversy, as they were responsible for trying and sentencing – sometimes to death – alleged conspirators, often on the basis of evidence Oates gave in court.81 William Scroggs, Chief Justice of the Court of Common Pleas, earned a reputation for harshness towards those accused of plotting against the king.82 Confidence in Oates eventually waned in 1681 and, in 1685, he was convicted of perjury, having been found to have fabricated the plot.

Despite his reputation for harshness, it was Scroggs’s acquittal of that proved to be his most controversial act. Wakeman, the physician of the queen, , was tried for high treason on 18 July 1679 for allegedly plotting to poison the king, and was acquitted of the charge in a move that was deeply unpopular with Whig pamphleteers.83 By chance, Wakeman’s acquittal coincided with the expiration of the Licensing of the Press Act,84 which had required renewal in 1679, but had become a casualty of Charles’s hasty prorogation of parliament on 27 May 1679.85 Parliament did not sit again until 21 October 1680.86 Unrestrained by the Licensing Act’s expiration, Whig pamphleteers freely attacked the judiciary.87

It was in this context that John Hawles produced a number of works on the common law. Hawles trained as a common lawyer in Lincoln’s Inn, and in 1689 entered the House of Commons. Prior to his election to the House, he authored numerous pamphlets on the common

79 ‘HCJ Volume 9: 21 October 1678’, JHC: Volume 9, 516-8. 80 For example, Roger L’Estrange described the Plot as the ‘Popish Sham Plot’ (Roger L’Estrange, Observator in Dialogue, 27 April 1681), the ‘Devilish confounded Plot’ (Roger L’Estrange, Observator in Dialogue, 5 May 1681), and Oates as ‘loathsome’ (Roger L’Estrange, Observator in Dialogue, 28 December 1681). On L’Estrange and the Popish Plot, see Mark Goldie, ‘Roger L’Estrange’s Observator and the Exorcism of the Plot’, in Anne Dunan-Page and Beth Lynch, eds., Roger L’Estrange and the Making of Restoration Culture (Hampshire: Ashgate, 1998), 67-88. 81 See, for example, ‘The Trial of Thomas White, alias Whitebread, Provincial of the Jesuits in England, William Harcourt, pretended Rector of London, , Procurator for the Jesuits in England, alias Gawen, and ’, in T. B. Howell, ed., A Complete Collection of State Trials: Volume 7 (London: 1816), 311-418. 82 See, for example, Edward Foss, Biographia Juridica (London: 1870), 599. 83 ‘The Trial of Sir George Wakeman, bart. William Marshal, Wiliam Rumley and, James Corker’, in A Complete Collection of State Trials: Volume 7, 591-706. 84 ‘Charles II, 1662: An Act for preventing the frequent Abuses in printing seditious treasonable and unlicensed Bookes and Pamphlets’, in Statutes of the Realm: Volume 5, 428-35. 85 ‘HCJ Volume 9: 27 May 1679’, JHC: Volume 9, 634. 86 ‘HCJ Volume 9: 21 October 1680’, JHC: Volume 9, 636. 87 For example, Francis Smith, Some Observations Upon the Late Tryals of Sire George Wakeman, Corker, and Marshal, &c. (London: 1679), 7; Henry Care, Weekly Pacquet of Advice from Rome, 1 August 1679. 94 law, the most well-known of which was The English-mans Right. In these pamphlets, he defended an account of judicial office that held that judges were entrusted with defending the liberties of subjects because of the ancient character of the liberties, and he gave particular attention to jury impunity. Hawles’s contention that judges who nefariously engaged with juries were violating their office repeated a claim of the House of Commons in their 1667 response to Kelyng’s fining of a jury.

The English-mans Right reads as a dialogue between a and juror. Hawles’s juror began the dialogue by expressing his reticence towards appearing in court, noting his unwillingness to incur ‘the displeasure of the Court’.88 Hawles’s barrister reassured him of the ‘Jurors priviledges’, which prevent such punishments, going on to explain that such liberties had existed from ‘time out of mind’, and indeed were so ancient ‘that our best Historians cannot date’ them.89 Recounting many historical confirmations of these ancient liberties, Hawles’s barrister argued that the liberties of juries were part of the broader liberties of Englishmen, which the judiciary were required to uphold.90 Though Hawles’s argument here was historiographic, it would be a mistake to see this as common law or Whig historiography. For though Hawles deployed an historiographic argument, it lasts only two pages in a forty-page pamphlet that is otherwise directed towards an explication of jury practice, the jury-judge relationship, and the minutiae of court practice. Historiography emerged only briefly as a device to explicate the offices of judge and juror, rather than being the focus of the pamphlet.

Stephen Colledge’s 1681 pamphlet A Satyr against Injustice constituted a scathing attack on Scroggs written in verse, enabled by the Licensing Act’s expiration. Colledge was a well-known pamphleteer and poet, who regularly recited his work at pubs and coffee houses. An opponent of Charles II, he was executed in 1681 for treason.91 Though A Satyr against Injustice was not brought up in his trial, other pamphlets were treated as evidence, a clear indication of the stakes of the rhetorical warfare of pamphleteering.92 A Satyr against Injustice alleged that Scroggs was susceptible to bribes, which explained both his harshness towards some who appeared before him, and his acquittal of Wakeman: Scroggs was ‘to Mercy’s not inclin’d, Unless Gold

88 John Hawles, The English-mans Right (London: 1680), 2. 89 Ibid., 2-3. 90 Ibid., 4. 91 ‘The Trial of Stephen Colledge’, in T. B. Howell, ed., A Complete Collection of State Trials: Volume 8 (London: 1816), 549-746. 92 Most notably Stephen Colledge, A Ra-Ree Show (London: 1681). 95 change Conscience and Mind’.93 Though Colledge did not use the term, the question of judicial impartiality was again at issue. For Scroggs’s abuse of office, Colledge proposed extreme punishments, suggesting that parliament order the judge’s execution, and that he be cleaved into ‘a thousand pieces’.94

A similar attack on Scroggs was launched in the anonymously authored The Triumphs of Justice over Unjust Judges. Like Colledge’s text, it relied heavily on a satirical critique of Scroggs. The pamphlet was ‘Humbly Dedicated’ to him,95 and the dedication claimed there was none to whom such a text could be ‘more properly’ dedicated to.96 The claims within the pamphlet expanded on those of Colledge: judges were ‘appointed and Sworn to Administer equal and impartial Right and Justice’. Judicial office was thus corrupted when judges received ‘Pecuniary, or other Bribes’ for their work.97 Once more, the rhetoric of impartiality was deployed, here in a manner close to that encountered in the sermons of Robert Harrison and George Berkeley, of impartiality as the even administration of justice, vulnerable to the favouring of one party over the other for financial gain.

IV It is perhaps evidence of Hobbes’s iconoclasm that among Restoration commentators on judicial office, he eschewed interest in the dominant rhetorical tropes of the liberties of subjects and judicial impartiality. This did not mean, though, that Hobbes was not equally indebted to the rhetoric of office. For across a range of texts, Hobbes articulated a detailed and consistent account of the appropriate comportment of those who held judicial office. Rather than engaging in the dominant idiom of Restoration commentary, he drew on earlier rhetorical sources, most notably James VI and I’s and Bacon’s accounts of judicial office as entirely subordinate to the sovereign. Such derivation is not surprising given Hobbes’s proximity to the intellectual milieu of unrestrained sovereignty: Bacon had been Hobbes’s patron, and while exiled in France, Hobbes had tutored Charles II, the grandson of James VI and I. Hobbes was not entirely derivative of these earlier accounts, though, for he avoided their rhetoric of the divine origins of kingship.

93 Stephen Colledge, A Satyr against Injustice (London: 1681), 1. 94 Ibid., 2. 95 The Triumphs of Justice over Unjust Judges (London: 1681), title page. 96 Ibid., A2. 97 Ibid., 1. 96

Hobbes’s work has in general been described by scholars as ‘theory’,98 and his work on the law has not been immune from this. Both Pocock and Skinner describe Hobbes as providing a ‘theory’ of conquest in his Dialogue between a Philosopher and a Student, of the Common Laws of England, while Cromartie claims the text constituted a ‘legal theory’.99 Indeed, Hobbes’s work seems to provide some grounds for us to describe it as ‘theory’, for he used terms to describe it that we tend to associate with theory today, characterising his approach as a ‘science’,100 and himself as a ‘Phylosopher’.101 In Leviathan, he emphasised the importance of the ‘right Definition of Names’, a process he described as the ‘Acquisition of Science’.102

To simply assume that contemporary associations between science and theory or philosophy and theory give us grounds to treat Hobbes’s work as theory is to miss his point, though. For he did not use the term ‘science’ as we might to describe a unified understanding of the world, but spoke instead of distinct civil and natural sciences, his account of which was disjunctive: Hobbes’s natural science did not entail his civil science.103 For Hobbes, the world was divided into distinct areas of knowledge, with different sciences applying to different subjects, each irreducible to the others. Further, though historians have noted Epicurean and Aristotelian elements to Hobbes’s work,104 to proceed from evidence of Hobbes’s engagement with classical philosophy and his description of himself as a Phylosopher to describing him as a theorist or his work as theory is an overreach.

98 For example, Noel Malcolm, Aspects of Hobbes (Oxford: Oxford University Press, 2002), Chapter 5; Richard Tuck, Philosophy and Government, 1562-1651 (Cambridge: Cambridge University Press, 1993), Chapter 7; Richard Tuck, Natural Rights Theories (Cambridge: Cambridge University Press, 1979), Chapter 6; Robert A. Greene, ‘Thomas Hobbes and the Term “Right Reason”: Participation to Calculation’, History of European Ideas 41:8 (2015), 997-1028; Skinner, Reason and Rhetoric in the Philosophy of Hobbes, passim; D. W. Hanson, ‘Science, Prudence, and Folly in Hobbes’s Political Theory’, Political Theory 21:4 (1993), 643-64. 99 Alan Cromartie and Quentin Skinner, ‘General Introduction’, in The Clarendon Works: Volume 11, xiii-lxv, at xv. 100 Thomas Hobbes, On the Citizen, trans. Richard Tuck and Michael Silverthorne (Cambridge: Cambridge University Press, 1998 [1642]), 5; Thomas Hobbes, ‘Leviathan’, 242. 101 Hobbes, ‘Dialogue’. 102 Hobbes, ‘Leviathan’, 56, 71, 62. On Hobbes’s treatment of rhetoric and its relationship to his scientific approach, see Skinner, Reason and Rhetoric in the Philosophy of Hobbes, particularly Chapters 7 and 8; Quentin Skinner, ‘Hobbes on Rhetoric and The Construction of Morality’, in Visions of Politics, 3: 87-141. 103 Noel Malcolm, Aspects of Hobbes, Chapter 5. 104 Malcolm, Aspects of Hobbes, 115, 332; Ian Hunter, ‘Natural Law as Political Philosophy’, in Desmond M. Clarke and Catherine Wilson, eds., The Oxford Handbook of Philosophy in Early Modern Europe (Oxford: Oxford University Press, 2011), 475-496, at 480; Annabel Brett, ‘“The Matter, Forme, and Power of a Common-wealth”: Thomas Hobbes and Late Renaissance Commentary on Aristotle’s Politics’, Hobbes Studies 23:1 (2010), 72-102, at 102. 97

Early modern philosophy was, in England, much less formalised than the contemporary discipline. Its boundaries were unstable, particularly with regard to theology, as were its sources, which often included the Bible and early Jewish texts.105 As Condren has shown, philosophy was itself a category of office talk. Bacon, for example, described the philosopher as possessed of a particular comportment and function within the commonwealth.106 And as Hunter demonstrates, though Hobbes drew on classical sources, it was to produce an official scaffolding: he used Epicurus to reconstruct natural law as an account in which men contracted into the state and established the office of sovereign, an office without legal restriction, out of a desire for peace.107 For Hobbes to describe himself as a Phylosopher was thus to describe himself as holding a particular office, and his use of classical philosophy grounded his account of the offices of sovereign and judge.

As we will see in this section, Hobbes deployed a consistent rhetoric regarding judicial office through De Cive, published in 1642, into Leviathan, first published in 1651, and finally his Dialogue between a Philosopher and a Student, of the Common Laws of England. The Dialogue was published in 1681, two years after Hobbes’s death, but was likely written mostly in the early , when manuscript copies of the text were circulated to some members of the judiciary.108 Hobbes’s consistency in asserting the exclusive law-making capacity of the sovereign and the consequent total subordination of judicial to sovereign office is significant, because Hobbes’s commentary on law has been largely neglected by scholars despite it being the principal subject of the Dialogue and a secondary subject in other works.

Intellectual historians have rightly noted transformations to aspects of Hobbes’s work over time, such as his changing view of the status of rhetoric.109 But in doing so, they have neglected the consistency with which Hobbes approached a subject that clearly held great significance for him: the common law. Indeed, intellectual historians have privileged those aspects of his work that we might more obviously consider theoretical, for they constitute the subject matter

105 Condren, ‘The Persona of the Philosopher and the Rhetorics of Office in Early Modern England’, 71; Dmitri Levitin, Ancient Wisdom in the Age of the New Science (Cambridge: Cambridge University Press, 2015), 13-8. 106 Condren, ‘The Persona of the Philosopher and the Rhetorics of Office in Early Modern England’, 82-4. See also Stephen Gaukroger, ‘The Persona of the Natural Philosopher’, in The Philosopher in Early Modern Europe, 17-34. 107 Hunter, ‘Natural Law as Political Philosophy’, 481-2. 108 Cromartie and Skinner, ‘General Introduction’, xvi-xvii. 109 For example, Skinner, ‘Introduction: Hobbes’s Life in Philosophy’, in Visions of Politics, 3: 1-27, at 12-3. 98 of modern political theory, such as Hobbes’s discussion of the state of nature.110 In doing so, historians have erected a theoretical scaffolding out of Hobbes’s work, through the prioritisation of certain elements, and neglect of others; in particular through neglecting his commentary on the common law, one of the most enduring components of his writing.

Even when scholars come to the Dialogue, Hobbes’s most sustained reflection on the common law and judicial office, they do so through the reified categories of historiography, where Hobbes emerges as a theorist of conquest. This method has enabled scholars to project a theoretical subjectivity onto Hobbes, designating him a political theorist and his work political theory, occluding his reliance upon the idiom of office; upon a rhetoric chiefly practical, oriented towards action in office. In recovering his account of judicial office, this section will go some way towards re-orienting our understanding of Hobbes away from theory and towards office.

De Cive was published during Hobbes’s exile in Paris, having fled England at the start of the Civil Wars, and first appeared in English in 1651. Hobbes presented the text as an explication of the duties of men.111 In the process of this explanation, he gave a rich account of the powers of the sovereign regarding the law, and of the subordination of the judiciary to this sovereign. Hobbes’s argument was clear from the outset. In the preface, Hobbes noted that within a commonwealth, the denomination of good and evil was to be determined through reference to the laws. In other words, good and evil referred to what was permitted and prohibited in law. Judges were crucial to this process, but subordinate, for their role was only to ‘interpret’ the commonwealth’s laws.112

Hobbes sharpened this claim in De Cive’s sixth chapter, where he explicitly set out that it was only the sovereign who made laws: ‘CIVIL LAWS… are nothing other than commands… from the one who is endowed with sovereign authority’.113 In the fourteenth chapter, Hobbes developed this into an attack on precedent, denying that ‘the writings of jurists’ had any legal

110 For example, Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974); Robert Grafstein, ‘The Significance of Modern State of Nature Theory’, Polity 19:4 (1987), 529-50; Vikas Kumar, ‘A Model of Secularism in the State of Nature’, Quality & Quantity 47:2 (2013), 1199-1212; Jan Niklas Rolf, ‘The State of Nature Analogy in International Relations Theory’, International Relations 28:2 (2014), 159-82. 111 Hobbes, On the Citizen, 7. 112 Ibid., 10. 113 Ibid., 79. 99 force. Only through the ‘consent of the sovereign’ could anything become law.114 Thus customs absorbed into law were not law ‘because they are customary’, as ‘custom does not constitute law in its own right’, but were law by ‘the will of the sovereign’.115 As we saw in Chapter 1, St German developed an extensive typology of the six grounds of law, distinguishing between laws of the sovereign and customs as discrete and independent legal sources. Hobbes obliterated such distinctions: all law was sovereign made, and any customs that happened to be in law were law not by value of their customary status, but because the sovereign had willed them law.

In Leviathan, Hobbes offered many of the same arguments, though expanded them in key ways, most notably in Chapter 26. As in De Cive, the sovereign alone was the only law-maker of the realm: ‘The Legislator in all Common-wealths, is only the Soveraign… he that maketh the Law’.116 Moreover, Hobbes sustained his denial that custom was a distinct basis for law. The legal status of customs did not rely on their status as customs, but rather on their recognition by the sovereign; all law was contingent on ‘the Will of the Sovereign’.117 In a snide satirical aside against St German and Coke, both lawyers who had defended the legal status of custom, Hobbes declared that even common lawyers ‘account no Customes Law’.118

Hobbes went further than he had in his attack on judicial office in De Cive by explicitly castigating Coke’s defence of the insular and intricate legal reasoning of judges. Judicial office was not based in the interpretation and application of precedent, learned through extensive studying and the cultivation of a particular rational comportment. Referencing Coke by name, Hobbes claimed that there was no ‘Artificiall perfection of Reason’ in law,119 as the only ‘Reason’ relevant was that of the sovereign; this, not a cultivated reasoning capacity, grounded the work of the ‘subordinate Judges’. 120 Hobbes rejected the importance of precedent, too, as risking the perpetuation of bad law. Intensifying his image of judicial subservience to the sovereign, he claimed that judges were ultimately not even properly named judges. Rather, they were just ‘Juris Consulti’ (legal experts),121 whereas ‘In all Courts of Justice, the

114 Ibid., 161. 115 Ibid., 161-2. 116 Hobbes, ‘Leviathan’, 416. 117 Ibid. 118 Ibid., 418. 119 Ibid., 422. 120 Ibid. 121 Ibid., 440. 100

Sovereaign… is he that Judgeth’.122 Building on his earlier arguments in De Cive, Hobbes’s Leviathan thus articulated a narrow scope for judicial office, restricted to obedience to sovereign command.

An adversarial approach towards the independence of the common lawyers animated the entirety of the Dialogue. The circumstances around the Dialogue’s writing are unclear, but it seems that a version of it was completed by 1673. In a 1673 letter John Aubrey noted that Hobbes had composed a legal treatise and the manuscript had been circulated among some of the judiciary – Hale, then Chief Justice of King’s Bench, opposed it, while John Vaughan, Chief Justice of the Court of Common Pleas, supported it. In 1679, at the time of the Exclusion Crisis, Hobbes himself wrote to Aubrey that he would not consent to the work’s publication, which ultimately emerged posthumously in 1681.123 The Exclusion context may have driven Hobbes’s opposition to publishing. In asserting the supremacy of king above law, the text supported Charles and his heir. To support Charles and James was less controversial in 1673 when the manuscript of the Dialogue was circulated, but was clearly to take a side in 1679; a side Hobbes was perhaps unwilling to explicitly commit to.

Hobbes’s argument throughout, though significantly more detailed regarding the appropriate comportment of judicial officeholders, followed the arguments he had laid out in his earlier texts: judicial office was entirely subordinate to sovereign office, for it was grounded exclusively in sovereign-made laws. The Dialogue was ostensibly a debate between Hobbes’s two characters, the Lawyer and the Phylosopher, the latter a clear cipher for Hobbes. Unlike More’s use of the dialogue form in Utopia, in which the argument was opaque, there is no mistaking the force of Hobbes’s polemic.124 The tract consisted of the Lawyer quoting or summarising various of Coke’s claims for the Phylosopher to rebut, drawing on the arguments Hobbes had wielded in his earlier texts, themselves indebted to the earlier arguments of James VI and I and Bacon. The Lawyer conceded to the Phylosopher’s arguments every time.

Understudied compared to Hobbes’s other works, the principal scholarly approach to the Dialogue has transformed it into a work of historiography, with Hobbes treated as a rare proponent of the claim that William’s 1066 invasion constituted a conquest. Hobbes’s claim,

122 Ibid., 422. 123 Skinner and Cromartie, ‘General Introduction’, xvi-xvii. 124 On More’s argument in Utopia, see Skinner, The Foundations of Modern Political Thought, 2: Chapter 9. 101 we are told, was that though there may have been an ancient common law in England that preserved the liberties of subjects, it did not prevail in the seventeenth century, for conquest had annihilated these earlier laws and constituted a new unlimited monarchy. On this reading, Hobbes’s Dialogue and Hale’s response, the ‘Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes His Dialogue of the Lawe’ were an historiographic contest, with Hale rejecting Hobbes’s claims that contemporary and ancient law were severed by conquest through a reaffirmation of the unbroken lineage of law from antiquity to present.

If Hobbes was a sectarian for an historical account of conquest that emphasised the separation of laws present and past, then it is surprising to see historiography mentioned so little throughout the Dialogue. William’s alleged conquest is referenced only ten times across the entire text,125 with eight of these references mere passing comments, rather than historiographic argument.126 Given its marginal role in the text, it is clear that Hobbes did not take historiography as his focus. More importantly, if we look at the text beyond Hobbes’s references to conquest, Hobbes can be found regularly deploying arguments from ancient law, often in service of the exact points on which he made reference to William’s conquest.

The second chapter of the Dialogue, ‘Of Soveraign Power’, consists of a sustained reflection on the king’s unimpeded and exclusive legislative power. In the process of this argument, Hobbes’s Phylosopher repeated a particular claim twice: the king was subject to no law other than the law of God. In each invocation, though, the Phylosopher made the argument from an entirely different basis. First, he claimed that ‘the King is Subject to the Laws of God… and to no other; and so was William the Conqueror, whose Right is all Descended to our present King’. 127 Hobbes’s argument here is a clear claim from conquest: it was by William’s conquest that the present king, Charles II, inherited a right to govern without legal restriction.

Just pages later, though, Hobbes’s Phylosopher made a second argument. Explaining ‘this Doctrine concerning the Rights of Soveraignty’, the Phylosopher claimed that it ‘is the Antient Common-Law… that the only Bridle of the Kings of England, ought to be the fear of God’.128 Again, the Phylosopher declared that the king was bound only by the law of God. Rather than

125 Hobbes, ‘Dialogue’, 15, 25, 29, 73, 97, 104, 117, 135-7, 142, 145-6. 126 The most extensive reflections come in the final chapter ‘Of Punishments’ (Ibid., 113-46). 127 Ibid., 25. 128 Ibid., 36. See also Thomas Hobbes, ‘Behemoth, or the Long Parliament’, in Paul Seaward, ed., Clarendon Works: Volume 10 (Oxford: Oxford University Press, 2009), 149. 102 grounding this claim in a new sovereignty established by William’s 1066 invasion, though, the Phylosopher now claimed that it was the ancient laws of the realm that made it so. If ancient law still prevailed in Restoration England, then 1066 constituted no radical breach in English legal history; an historiographic claim contradictory to the assertion that conquest changed English law.

We can understand this obvious contradiction when we turn to the rest of Hobbes’s Dialogue. For the text consists of a sustained attack on an independent judiciary, which Hobbes claimed neither drew on sources of law beyond the king, nor possessed any particular art of reasoning cultivated through training that enabled a distinct talent for the synthesising and application of past law. The point is that historiography was never Hobbes’s battleground, and his text thus no theory of English history. His battleground was judicial office, and his strategy was to weaponise as many available arguments as possible in an attempt to overwhelm the judiciary through the quantity and aggression of his argument. Historiographical inconsistency was thus the price Hobbes paid for his consistent antagonism towards the judiciary and Coke’s arguments for its independence. Ancient law and custom, if entailing rival historiographical claims, were in Hobbes’s hands equally weapons for the subordination of judicial to monarchical office, and on this argument the Dialogue was entirely consistent.

Hobbes’s consistent assertion of judicial office’s subordination energised most of the Dialogue, grounded in a clear awareness of the longer debate over judicial office. The first chapter, ‘Of the Law of Reason’, constituted an attack on Coke’s articulation of judicial office as cultivated through training and grounded in precedent. The Phylosopher’s opening statement was an explanation of the legal learning that enabled him to reflect on judicial office, a justification of Hobbes’s reflections on the subject. The Phylosopher boasted he had read ‘the Statutes from Magna Charta downward to this present time… Littleton’s Book of Tenures, with the Commentaries thereupon of the Renowned Lawyer Sir Ed. Coke’.129 Already, we can see Hobbes’s argument taking shape. Where Coke had affirmed the intensity of training necessary to ground judicial office, Hobbes’s Phylosopher claimed sufficient understanding of the law on the basis of having read statutes and two legal tracts; the emphasis on statutes a clear indication of Hobbes’s assertion that legislation made by the sovereign was the only law.

129 Hobbes, ‘Dialogue’, 8. 103

Turning to his interlocutor, Hobbes’s Phylosopher claimed to be unable to understand how reason, as Coke had claimed, could be used to interpret the law, ‘for upon this Ground any Man, of any Law whatsoever may say it is against Reason’; reason, surely, was destabilising. The Lawyer’s response consisted of a recanting of Coke’s work: the reason at issue was not ‘Mans natural Reason’. Rather, Coke referred to an ‘artificial perfection of Reason gotten by long Study, Observation and Experience’. Coke’s reason was a ‘Legal Reason’; no ordinary reason but the ‘summa Ratio’ (highest reason), a comportment grounding judicial office built of centuries of legal refinement that made it impossible for those untrained in the common law to intervene in it.130

Hobbes opened his offensive upon an independent judiciary here, scorning the Lawyer’s comments as ‘partly obscure, and partly untrue’. Reason was only ‘Natural’, and rather than a specialised legal reason acquired through training, it was simply ‘Authority that makes a Law’.131 As he had claimed in De Cive and Leviathan, Hobbes again asserted that the power to make laws was exclusive to he who ‘hath the Soveraignty’, the king.132 The king had the exclusive power to make statutes and ‘none can make a Law but he that hath the Legislative Power’.133 Even those laws that ostensibly originated beyond the sovereign’s purview, arising from custom, were ultimately the product of sovereignty for they were only law because they were ‘tacitly confirm’d’ as such by the king.134 We can see here a clear repudiation of the claims of St German and Coke, wherein the sovereign was marginalised as one among multiple sources of law, and the specialised reason of the common lawyers endorsed.

Against these earlier lawyers, Hobbes followed Bacon and James VI and I to argue for the unique law-making power of the king, and the complete subordination of the judiciary to this power, though he eschewed their use of Biblical imagery. Hobbes’s Phylosopher described Coke’s claim that law was refined over time by lawyers as ‘manifestly untrue’. Rather than a history of the slow accretion of precedent, the history of law was one in which ‘all the Laws of England have been made by the Kings of England’.135 Energised by his attack on judicial office, the Phylosopher adopted a satirical tone, claiming that rather than Coke’s account of rigorous

130 Ibid., 9. 131 Ibid., 10. 132 Ibid., 11. 133 Ibid., 10. 134 Ibid., 116. 135 Ibid., 10. Recall James VI and I’s claim that all laws ‘are made by himselfe, or his predecessors’ (James VI and I, The True Law of Free Monarchies, 17). 104 legal training in the history of the common law, judges need do no more than read the preambles of statutes. Wielding the language of office, the Phylosopher claimed that given the minimal requirements of judicial office, ‘within a Month, or two’, he would be ‘able to perform the Office of a Judge’.136

Hobbes opened the following chapter, ‘Of Soveraign Power’, with a further assertion of the law’s subordination. His interlocutors agreed that the common law was ‘a very little part’ of philosophy; a declaration of legal office’s subjugation to the Phylosopher’s – and thus Hobbes’s – office. Given this philosophical subordination, the Lawyer and Phylosopher concurred that justice was the ‘giving to every Man his own’, citing Aristotle for this definition.137 If law was the sole domain of the sovereign and its end was the giving of all their own, then it was a necessity that the sovereign was unrestrained. Without mentioning the Petition of Right by name, Hobbes’s Phylosopher invoked it to condemn its pretensions against a legally unlimited monarch. As we saw in the previous chapter, the Petition represented a declaration of the power of judicial office against sovereign office; of the power of the ancient law understood only by the common lawyers to bind the king.

The Petition had claimed that the king could not levy taxes without parliamentary consent, and against such a declaration of the bound status of monarchical office, Hobbes’s Phylosopher claimed that the king by necessity held an unrestrained power of taxation. In order to provide justice the king had to be able to make ‘Laws effectual’, and this was contingent on the ‘Power to Leavy Souldiers… to raise an Army… and Money to Maintain it’.138 Making oblique reference to the Civil Wars, Hobbes’s Lawyer noted that ‘before the late Troubles the People were of another mind’. ‘The People reason ill’, though, responded the Phylosopher,139 for the king would be ‘disabled to perform his Office’ to protect the ‘safety of the People’ was he restrained by law.140

Scorning the pretensions of Coke, the author of the Petition, to bridle the king, the Phylosopher added that ‘Coke himself’ was only a judge ‘because the King made him so’.141 Judicial office

136 Hobbes, ‘Dialogue’, 11. 137 Ibid., 13. See Aristotle, Nichomachean Ethics, trans. Roger Crisp (Cambridge: Cambridge University Press, 2014), 83-5. 138 Hobbes, ‘Dialogue’, 15. 139 Ibid. 140 Ibid., 18. 141 Ibid., 18-9. 105 could not limit the king, who held office unrestrained and could thus dispense with law at will: ‘he who is Subject to none but God, can make a Law upon himself’ and ‘as easily abrogate’ it.142 Again scorning Coke, the Phylosopher noted that although ‘The Common People’ had once thought Charles I was restrained by law, this was only the distortions of those ‘Learned in the Laws’ – those like Coke – who ‘speak evil of the Governors’.143 Affirming the arguments of the Dialogue’s first chapter, the Phylosopher again declared that it was ‘a Succession of Kings’ who made law.144 Rather than any reason autonomous of the crown cultivated within lawyers through rigorous training, the crown’s will entailed the entire scope of judicial office: ‘the Kings Reason… is that Anima Legis, that Summa Lex… and that Summa Ratio’ (the Kings Reason… is that soul of the law, that highest law… and that highest reason).145

Having set out the necessary comportment by which judges were required to hear the matters before them in court, the remainder of the Dialogue was devoted to a cataloguing of various legal subjects: jurisdictions, specific crimes, including treason and heresy, and the apportioning of punishments for these crimes. These subjects were accompanied, though, with regular repetitions of the Dialogue’s opening claims. In discussing the various jurisdictions of the realm in the third chapter, ‘Of Courts’, the Phylosopher reaffirmed the king’s status as legally unrestrainable: ‘no part of his Legislative Power, or any other Essential part of Royalty can be taken from him by a Statute’.146

The fourth chapter, ‘Of Crimes Capital’, addressed the crime of treason, with the Phylosopher arguing that the ‘Highest Crime’ was high treason, given that the king’s safety was the highest law.147 In a clear indication of Hobbes’s debt to the earlier polemics on judicial subordination to sovereign office, he deployed a phrase we have encountered previously in the work of Bacon. The king’s safety was the highest law as ‘Salus Populi is Suprema Lex… and that the safety of the People of a Kingdom consisteth in the safety of the King’.148 Like Bacon, Hobbes asserted the subservience of the judiciary to the crown through the use of the salus populi maxim; a continuation of the pre-Civil Wars polemical idiom on judicial office. In the Dialogue’s fifth chapter, ‘Of Heresie’, Hobbes redeployed an argument he had previously wielded in Leviathan,

142 Ibid., 38. 143 Ibid., 22. 144 Ibid., 19. 145 Ibid. 146 Ibid., 61. 147 Ibid., 69. 148 Ibid., 70. 106 criticising precedent as permitting the replication of bad law: ‘Precedents prove only what was done, and not what was well done’.149 Precedent was no sound basis for judicial office, which was grounded only in the will of an unlimited sovereign.

As well as attacking judicial independence, Hobbes also excoriated the idea that the clergy might have any independent role in law, as advocated by Harrison, Stainforth, and Berkeley. The claim made by these priests was that judicial office was subordinate to clerical, for the office of the judge was a divinely founded office, and thus one subject to ecclesiastical instruction. Hobbes denied any particular authority for the clergy in the law, noting that ecclesiastical law itself held force ‘by no other Authority than that of the King’.150 If the judiciary were subordinate to the crown, then so were the clergy; only the king set the scope of judicial office.

Conclusion The Restoration debate over judicial office built considerably on the preceding debate that developed from the sixteenth century. As we have seen, many continuities were present. The most common and consistent arguments we encountered sought to subordinate the judiciary to divine will as interpreted by a clerical elite, to render the judiciary subservient to a legally unbound king, or to subject them to the guidance of parliamentary office, arguments we encountered in Chapter 1 in the works of Hugh Peters, Bacon and James VI and I, and Rushworth and Bradshaw. Novel arguments emerged, too, such as the claim that judicial office be exercised with impartiality, and that the judiciary preserve the liberties of subjects. It is important to recognise, though, that these different rhetorical approaches to judicial office did not represent distinct ideological accounts of the judiciary espoused by rival theoretical factions. They were functions of the idiom of office, and they could be combined and recombined, appearing together or opposing in the hands of different actors.

The anonymous H. C., for example, described the office of the lawyer in terms reminiscent of Coke, as the possession of a comportment cultivated to synthesise, apply, and amend precedent. But he invoked this language of ancient law when arguing that the judiciary uphold the liberties

149 Ibid., 100. 150 Ibid., 20-1. 107 of English subjects. Arguments for the unlimited power of kingship were deployed by Hobbes, whose account of the state left no juridical space for divine will, but also in assize sermons that attributed to Charles’s kingship a divine origin. In these sermons, judicial impartiality was invoked to claim that an impartial judge was one who upheld the king.

Other sermons proffered a juridical architecture in which the clergy, not the sovereign king, held pre-eminent authority over the common lawyers, claiming that the judiciary directly held office by divine will and were thus subject to clerical instruction. This argument was bolstered by a competing definition of impartiality as equitable treatment of rival parties. A variation of this claim was offered by the Quaker pamphleteer William Smith, who described such judicial impartiality as the upholding of God’s will. This variability in how impartiality was defined is significant, for though impartiality, understood as the equal treatment of rival parties, is considered a standard component of judicial office today, its Restoration status was far more fragile. If a cornerstone of our present judiciary, impartiality was a battleground in the Restoration contest over judicial office.

Though the claim that judicial office consisted in the preservation of the liberties of subjects was novel, the chief means by which this claim was deployed in the Restoration was not. We saw in Chapter 1, in the works of those like Bradshaw and Rushworth, arguments for the subordination of judicial to parliamentary office. If Restoration MPs did not assert their sovereignty and total control of the judiciary in the same way, they used their powers of impeachment to prescribe limits to judicial office, an attempt to demonstrate superiority. The liberties of subjects were not a stable commodity, either.

Rather, the content of these liberties was capricious: jury impunity, in the work of John Hawles or the 1667 House of Commons in their response to Kelyng’s punishment of an adversarial jury; the right to petition for parliament to sit, according to the 1680 Commons. These latter MPs also invoked the ‘liberty’ of subjects when declaring the illegality of denying bail where it was permissible. Two conclusions arise from this. First, there was a significant preponderance towards the language of ‘liberties’ among the legislators of the realm, and not ‘liberty’. In the next chapter, we will see that judges, too, preferred to speak of the ‘liberties’ of subjects. Second, this debate was had in the register of office, for it focused on what actions were available in particular circumstances to subjects of the English realm.

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If there is a unifying feature of the earlier debate over judicial office and that in the Restoration, it is that the rhetoric we have looked at was relentlessly casuistical; consistently focused on the exercise of the specific office of the judge, often in particular circumstances, such as in relation to the king. The orientation towards action, the particularity, and the immediacy of this debate is obscured when described as theory, a term that, significantly, none of the participants used to describe their work. Indeed, this immediacy meant that judicial office was always being cast in the midst of rhetorical battle. It was thus subject to a fractured and rarely consistent idiom, as participants improvised fresh combinations of a range of terms.

Hobbes is exceptional for the consistency of his arguments between the Civil Wars and Restoration. He followed James and Bacon in explicitly opposing Coke and asserting the total subordination of judicial to sovereign office. Though these arguments were presaged in De Cive and Leviathan, they received a full treatment in his Dialogue. This last text, described by scholars as evidence of Hobbes’s theory of conquest, shows not a dedication to a particular historiographical position, given Hobbes’s unflinching historiographical inconsistency, but the degree to which Hobbes was deeply engaged in the dispute over judicial office. An explicit response to Coke that echoed Bacon’s and James VI and I’s rhetoric on judicial office, and, inter alia, blamed the common lawyers for the Civil Wars, the Dialogue affirms the centrality of judicial office to seventeenth century England; a centrality we can now better appreciate.

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Chapter 3: Judicial Office within the Common Law

This chapter will explore the judiciary’s own Restoration commentary on judicial office, revealing the ways in which the judiciary responded to the attempts at their subordination by those outside the law. The Restoration judiciary offered three dominant approaches to judicial office. The first consisted in the acceptance of a subordinated status, as judges adopted a Hobbesian rhetoric in which the judiciary were cast as entirely subordinate to the sovereign king, who was the sole creator of law. The second account cast judicial office as independent of the crown on the grounds that the judiciary administered a balance between the prerogatives of the sovereign and liberties of subjects, ensuring that neither overstepped their official bounds. The second account often blurred with a third, which had more in common with the earlier accounts of judicial office provided by St German and Coke. This third account held judicial office to be grounded in the historical laws of England, and the judge the possessor of a specialised training that enabled him to parse this history to interpret and apply its contents in the courtroom.

It is these latter two accounts that are so important to this thesis. For the assumption on the part of most intellectual historians is that the judiciary were subordinate to higher legislative powers. The claim asserted by the judiciary in these latter two accounts of judicial office, though, is that no such subordination existed. It was thus a direct challenge to an account of a hierarchical legal system. The judiciary were independent of the monarch, and in the third account, their office was grounded in laws that existed beyond the scope of the monarch. If this is so – if the judiciary were in fact an independent institution, operating from a set of laws they had themselves developed – then our conventional casting of Restoration law is mistaken.

Perhaps the most obvious reason why scholars have tended to privilege the commentary of those outside the law when discussing Restoration law is the scarcity of Restoration judicial commentary on judicial office, which is why the present chapter is shorter than the previous. Indeed, this thesis contends that the exercise of judicial office in court was itself a contribution to this debate, and it was in the courtroom that the judiciary most extensively engaged in this dispute, which will be covered in Chapters 5 and 6. A key reason for the judiciary’s unwillingness to provide commentary on judicial office outside the courtroom was likely the tenuousness of judicial officeholding in the Restoration.

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Hobbes had castigated Coke as merely being a judge upon the king’s will and in formal terms, he was not far from the mark; James VI and I had dismissed Coke as a judge. Charles could appoint judges in two ways: during good behaviour – quamdiu se bene gesserit – which meant that he had to demonstrate judicial misbehaviour to dismiss them from office; or during good pleasure – durante bene placito – which allowed him to remove judges at will. Those judges like Hale who were appointed at the start of Charles’s reign were appointed under the former arrangement – during good behaviour1 – while those appointed after were appointed during good pleasure, a significantly more vulnerable position relative to the monarch.

Both Charles II and James II utilised this vulnerability extensively, regularly dismissing judges appointed during good pleasure. An adversarial relationship between Charles II and the judges of the realm most obviously began in 1672, when he attempted to revoke the judicial patent of Common Pleas Justice John Archer without explanation.2 Archer, though, was appointed during good behaviour and resisted his dismissal, demanding Charles show cause. The king backed down and Archer was instead retired at full pay.3 Charles’s later attempts at judicial dismissal were more successful. In 1676, he revoked the patent of Justice William Ellis of the Common Pleas. In 1678, he dismissed King’s Bench Chief Justice Richard Rainsford.4 Rainsford’s sacking preceded a glut of judicial dismissals. In 1679, Charles dismissed the Common Pleas Justice Vere Bertie, Exchequer Barons Francis Bramston and Edward Thurland, and King’s Bench Justice William Wilde. The following year, he dismissed Francis Pemberton from King’s Bench,5 and in 1681, King’s Bench Chief Justice William Scroggs. King’s Bench Justice William Dolben’s dismissal followed in 1683. Given the patents revoked had been awarded during good pleasure, Charles provided no justification.6

1 ‘Patent appointing Matthew Hale, serjeant-at-law, Lord Chief Baron of the Exchequer’, in Mary Anne Everett Green, ed., Calendar of State Papers Domestic: Charles II, 1660-1 (London: Longman, 1860), 354. 2 Cromartie suggested Archer’s opposition to military legal positions was the cause (Cromartie, Sir Matthew Hale, 122 n. 26), while Wilfrid Prest noted Archer’s outspoken opposition to Charles’s 1672 Declaration of Indulgence (Wilfrid Prest, ‘Archer, Sir John (1598-1682), judge’, ODNB (2008), http://www.oxforddnb.com/view/10/1093/ref:odnb/9780198614128.001.09001/odnb-9780198614128-e-623). 3 Shimon Shetreet and Sophie Turenne, Judges on Trial (Cambridge: Cambridge University Press, 2013), 23; Samuel Heywood quoted in T. B. Howell, ed., A Complete Collection of State Trials: Volume 12 (London: 1812), 257-258 at †. 4 John Campbell and Edward Foss suggested that Rainsford’s sacking may have been due to disagreements with Charles (John Campbell, The Lives of the Chief Justices of England (New York: 1858), 253; Foss, Biographia Juridica, 545). Foss also noted Rainsford’s deteriorating health. 5 Alfred Havighurst claims Robert Atkins was dismissed, (Alfred Havighurst, ‘The Judiciary and Politics in the Reign of Charles II’, Law Quarterly Review 66:1/2 (1950), 62-78 and 229-52, at 237), but Greenberg records that he resigned (Janelle Greenberg, ‘Atkyns, Sir Robert (bap. 1621, d. 1710), judge and politician’, ODNB (2011), http://www.oxforddnb.com/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-9780198614128-e-866. 6 Narcissus Luttrell claimed Pemberton was dismissed for disagreements with Charles (Narcissus Luttrell, A Brief Historical Relation of State Affairs from September 1678 to April 1714: Volume 1 (Oxford: Oxford University 111

When he took the throne in 1685, James II was even more antagonistic towards the judiciary than his elder brother. In the three years of his reign, James dismissed eleven judges, two more than Charles dismissed in total. Like Charles, he was able to do so as he maintained the practice of appointing judges during good pleasure. In January 1686, James dismissed Justice Creswell Levinz of the Common Pleas and Baron William Gregory of the Exchequer for denying the king held a dispensing power; the power to suspend statute.7 In April of that year, four more dismissals followed, all for the same reason: Barons William Montagu and Edward Nevill of the Exchequer, and Justices Job Charlton and Thomas Jones of Common Pleas.8

In 1687, King’s Bench Justice Francis Wythens was dismissed regarding his opposition to the use of martial law in regard to military deserters.9 The next year, James dismissed four more judges. Justices Thomas Powell and Richard Holloway of King’s Bench were both dismissed following the King’s Bench’s acquittal of the seven bishops. The trial had involved the refusal by seven bishops to read James’s Declaration of Indulgence from the pulpit. For presenting a petition of their refusal to the king, the bishops were tried and ultimately acquitted for seditious libel, an embarrassing result for James. In November of 1688, James dismissed two Exchequer Barons: Richard Heath and Charles Ingleby.

The consequence of this vulnerability to dismissal was that judges were unwilling to assert their independence. If the monarch was regularly asserting his power over the judiciary, the judiciary were in a difficult position, reluctant to defend an independence in their office in case it threatened their officeholding. As we will thus see, judges sought a fragile balance between subordinating themselves to the monarch, and retaining a distance from him. This balance was always liable to collapse in relation to the proximity of the judge in question to dismissal. In short, the rhetoric of judicial independence was increasingly contingent: defended in cases where judges felt safe in their office, denied when vulnerable. Indeed, in the particularly adversarial context of James II’s reign, no judges wrote defences of their office.

Press, 1857), 36), and claimed Wilde had been dismissed for questioning the Popish Plot (Gilbert Burnet, History of My Own Time: Volume 2 (Oxford: Clarendon Press, 1900), 199). 7 Alfred Havighurst, ‘James II and the Twelve Men in Scarlet’, Law Quarterly Review 69:4 (1953): 522-46, at 530. 8 Ibid., 531. 9 Stuart Handley, ‘Wythens, Sir Francis (c. 1635-1704), judge and politician’, ODNB (2015), http://www.oxforddnb.com/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-9780198614128-e-30178. 112

This chapter will be structured chronologically, providing a means to track ways judges spoke of their office against the background of changing circumstances in the Restoration regimes, with the first section covering the period 1660-1676, and the second section from 1677-1688. Given the minimal evidence of judges talking about judicial office, these first two sections will not be restricted to commentary by judges while in office, but will also include Restoration commentary by William Wilde and Edward Turner before they were appointed judges. The exception to the chronological structure of this chapter will be the work of Sir Matthew Hale, who served as Chief Baron of the Exchequer from 1660 to 1671, and as Chief Justice of the Court of King’s Bench from 1671 to 1675, whose work is the sole focus of the third section. Hale served as a judge for most of the Restoration in particularly senior roles, ending his career as the highest ranking judge in the realm, and wrote extensively on the law throughout his career. Most of this work was published posthumously, but his writing offers the richest repository of commentary on judicial office by a judge in this period.

Hale’s work also holds a pre-eminent position in the history of the common law. More than any other judge in the Restoration, Hale’s work has continued to be read and cited by lawyers. Most notably, Hale’s writings on law played a significant role in ’s Commentaries on the Law of England, receiving regular citation and endorsement from the first English professor of law.10 Hale has thus the most significant legacy of any Restoration common lawyer, and alongside Edward Coke, the most significant legacy of any common lawyer of the seventeenth century. Perhaps because of its particular significance, especially to present law, Hale’s writings have also been regularly described as ‘theory’, often in conjunction with the supposed theory of his rhetorical opponent Hobbes. Reading Hale’s texts together, as we read Hobbes’s in the previous chapter, shows the way in which he developed a particular account that focused on the appropriate comportment of the judge in court, not a theory of law.11 Here, he will be returned to his appropriate context, namely, the vigorous rhetorical conflict over judicial office.

I Until the mid-1670s, Restoration judicial commentary on judicial office largely asserted a slight degree of independence for the common lawyers from the crown. Even if Charles II was

10 William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford: 1765-69), passim. 11 Runciman noted that nineteenth century English jurists were also absent of ‘theoretical concerns’ (Runciman, Pluralism and the Personality of the State, 70). 113 not actively brandishing his dismissal power, as he would by the late 1670s, the common lawyers were cautious, seeking only to advance minor claims for their role that did not challenge sovereignty in the way the accounts of St German and Coke had. Most obviously, judges positioned themselves as maintaining the balance of monarchical prerogative and subjects’ liberties, and cast themselves as keepers of an ancient law that provided an important function in England, but was not the only source of law, let alone the most important. Where St German and Coke had attempted the marginalisation of sovereignty at the expense of legal sources outside the crown, including those developed through the accretion of precedent, Restoration judges affirmed the importance of the sovereign.

It is important to recognise, given the history recovered in the previous chapter, that although these judges affirmed the sovereign’s role in the law, their defences of judicial office were a stark repudiation of many of the accounts of the judiciary from outside the law. First, judges commentating on judicial office rarely gave any particular role for divine will in the law: these accounts did not at all follow the sermon literature on judicial office that sought to position the clergy as instructors of the judiciary. If God received mention, it was never with the specificity of explicating actual functions of the judiciary, but in vague terms, such as presiding over the realm. Biblical citation was non-existent.

Second, judicial commentary on judicial office repudiated the second form of sermon literature, which cast the king as divinely willed and thus the unrestrained master of the common lawyers. While these judges proclaimed adherence to monarchy, they affirmed the existence of an independent common law, of a branch of English law outside kingship that remained their exclusive preserve. In making these arguments, the judiciary also warded off the claims of Hobbes who, like James and Bacon, had declared the entire subordination of judicial to sovereign office, in particular through the assertion that only the king made law. Against this claim, early Restoration judges held there were legal sources beyond the king. If not as sharp in their repudiation of kingship as St German and Coke, these lawyers were likewise opponents of an account of complete judicial subordination to the sovereign.

In the first half of the Restoration, William Wilde’s 1661 speech to Charles the day preceding his coronation was an exception for how starkly it treated the judiciary as subservient to the sovereign. Wilde held an exceptional position, though: he had supported the royalist cause against , and after his election as MP in 1659, was key to preparing Charles’s 114 restoration to the English throne. Wilde was among the MPs who met Charles in the prior to the king’s return to England. Wilde was thus one of the most fervent supporters of Charles’s restored monarchy, and this coloured his approach to judicial-sovereign relations. At the time of his speech to Charles, Wilde was not a judge. He had trained in the , was a member of its bench, and had worked as an exigenter for the Court of Common Pleas from the 1630s, but would not ascend to the judiciary until 1668, with his appointment to the Common Pleas bench. This appointment was followed with a further appointment to King’s Bench in 1673.

Wilde’s speech offered a dedicated defence of the sovereign king and his role in law-making that almost approached a Hobbesian rhetoric. Opening by addressing the speech to his ‘Most gracious Soveraign’,12 Wilde explained that the king’s existence was a necessity for English law to survive. Indeed, the Interregnum following the execution of Charles’s father was a period in which the people of England were always in fear that their ‘Lives, Liberties, Estates… were ready to have been swallowed up’.13 Without the king, the law offered no protection, a recitation of earlier arguments we have seen in Bacon, Hobbes, and Bishop Cartwright, that the king gave life to the law.

Wilde’s defence of kingship also shared with Hobbes the claim that the king held title by ancient law: Charles’s right was ‘Ancient and Undoubted’.14 Those who argued for an ancient common law beyond the king tended to consider the office of king equally ancient, as we will see in the final section of this chapter when we look at the work of Matthew Hale. Wilde, though, had implied that law without a king was ineffective, and added to this a defence of the office’s ancient rights, both points Hobbes had made in his Dialogue. If not as explicitly aggressive towards the common lawyers as Hobbes had been, Wilde’s rhetoric clearly located him in the world of Hobbes, in which the common lawyers were subservient to their sovereign. Though Wilde made brief reference to God, this amounted to a vague claim that God ‘hath made’ the king’s restoration; an opaque illusion to God’s will, rather than a sharp account of God’s specific governance of the judiciary as we encountered in the sermon literature on judicial office.15

12 William Wilde, The Speech Spoken by Sir William Wylde (London: 1661), 3. 13 Ibid. 14 Ibid., 4. 15 Ibid., 5. 115

Prior to his appointment as Chief Baron of the Exchequer, Edward Turner gave a number of speeches on judicial office. Turner served as an MP prior to his ascension to the bench, and in 1661 became Speaker of the House of Commons. It was in this capacity that he developed his account of judicial office. Like Wilde, Turner grounded his account of judicial office in an affirmation of the king’s power, which the judiciary posed no challenge to. But Turner deviated from Wilde’s account: though judges served the king, they operated a system of law that in many cases exceeded his purview. Speaking in 1661, Turner explained that God had thought it necessary that man live with law and government, and that of the different forms of government, ‘Monarchicall… is certainly the best’.16 Describing the role of judges in such a system, Turner explained that they were positioned ‘at your Majesties feet’,17 a phrase reminiscent of Bacon’s subordination of judges as lions under the throne.

At the same time, though, Turner noted that judges were learned in not only the statutes of the realm, but also its customs.18 In doing so, he gestured towards the existence of a source of law treated by common lawyers like St German and Coke as central to judicial office, but dismissed by their opponents, James VI and I, Bacon, and Hobbes. This argument took him beyond Wilde’s affirmation of sovereign power, for it indicated a power lawyers possessed independent of the monarch. Speaking in 1664, Turner offered further support to a legal system at least in part independent of the sovereign, claiming that statute and common law worked alongside one another, supporting each other. Though the common law was the ‘best Municipal Law in the world’, statutes were necessary where the common law was unable to provide redress.19

As we saw in the previous chapter, judicial impartiality was a focus of priests and pamphleteers. Though neither Wilde nor Turner discussed the subject, it was key to William Scroggs’s account of judicial office in a speech given upon his assumption of a position on the Common Pleas bench in 1676. Scroggs’s focus on impartiality at this early point in his judicial career is ironic. As we saw in the previous chapter, he would become a target, following his acquittal of George Wakeman, of accusations of serious bias. Scroggs’s 1676 speech was couched in the

16 Edward Turner, The Several Speeches of Sr. Edward Turner Kt. (London: 1661), 6. 17 Ibid., 10. 18 Ibid. 19 Edward Turner, The Speech of Sr Edw. Turnor Kt (London: 1664), 4. 116 rhetoric of office, a description of how he intended to carry out the ‘discharge of my duty’ in court.20

Scroggs described this duty as the maintenance of a balance between king and subjects. The law both ‘gives such Prerogatives to the King… and it gives to the People such Liberties, that more would be licentious’.21 In other words, the function of a judge was to administer the law such that neither king nor subjects exceeded the limits of their respective offices. Scroggs’s assertion of the limits of the king’s office is important, for it marks the sharpest repudiation so far of the claims of those like Hobbes that the judiciary were entirely subordinate to the king. Against Hobbes’s account, Scroggs treated the judiciary as required to bind the king where he sought to overstep his official remit. Scroggs described such a ‘Ministration’ of the law as a courageous and honest exercise of judicial office.22

From here, Scroggs turned to a discussion of judicial impartiality. Scroggs explained that crucial to judicial officeholding were the two cardinal virtues of ‘Temper’ and ‘Cleanness of Hands’.23 Explicating this claim, he contended that judges must maintain an ‘indifferent’ posture towards the matter at hand.24 Judges were not to favour a cause unduly, and he condemned as hasty the possession of a bias that precluded a judge from genuinely understanding a case.25 Sharpening his argument, Scroggs attacked corruption and bribe- taking, alleging that to allow such practices to seep into one’s officeholding was to pervert the law.26 Judicial officeholding thus entailed the equal maintenance of kingly prerogatives and subjects’ liberties, ensuring that neither overstepped their existing remit, and the adoption of an indifferent comportment that precluded the perversion of law through bias; the adoption of an impartiality understood as the equal treatment of rival parties. In so describing the necessary judicial impartiality of a judge, though he avoided the term itself, Scroggs rejected those definitions of impartiality that cast it as a crutch for the monarch, firmly repudiating judicial subordination to the sovereign king.

II

20 William Scroggs, A Speech Made by Sir William Scrogg (London: 1676), 3. 21 Ibid., 4. 22 Ibid. 23 Ibid., 5 24 Ibid. 25 Ibid., 6. 26 Ibid. 117

We can get an immediate sense of the chilling effect on the judicial rhetoric on judicial office caused by Charles’s increased antagonism towards the judiciary by the late 1670s by looking at a subsequent speech by Scroggs in 1678. The occasion of Scroggs’s speech was his appointment as Chief Justice of the Court of King’s Bench. Only two years before, Scroggs had affirmed the notion that the judiciary were required to limit the king’s prerogative within certain boundaries, sustaining a balance between the monarch and his subjects. In 1678, though, following the 1676 dismissal of Ellis and the 1678 dismissal of Rainsford, whose place in King’s Bench Scroggs was taking, Scroggs cast judicial office as entirely subordinate to the king.

He opened his speech explaining that it was the ‘Duty of every good Subject… to serve the King’ in their specific ‘place and capacity’.27 We can see the distinction in tone already. He began his 1676 speech with a claim to be explicating his particular duty as a judge without mention of himself as a subject. He now performed a flattening move, describing himself firstly as a subject, and only discussing his particular office subsequently. Furthering his account of judicial subordination, Scroggs invoked an image of judicial office reminiscent of one deployed by Bacon. Bacon had described judges as lions under the throne, and Scroggs claimed that judges must possess the ‘Lion’s Courage to support the Throne’.28

The invocation of courage is relevant. In 1676, Scroggs had described the maintenance of a balance between prerogative and liberty as courageous, but here described support for the king as courageous. Indeed, for these judges courageous in their support for monarchy, ‘Loyalty’ to the king stood at the ‘very Heart and Life’ of their work. So crucial to the legal ‘Profession’ was this loyalty that without it, ‘a Barrister or Practiser is no more a Lawyer’; insufficient regard for monarchy dissolved legal office.29 Judicial office was thus ‘worthily’ exercised when ‘the King is Guarded as well by the Lawyers as the Laws’.30 No more was judicial office a bulwark against an overactive monarch, it was a servant of the monarch, required to defend him.

27 William Scroggs, The Lord Chief Justice Scroggs his Speech to the Lord Chancellour (London: 1678), 1. 28 Ibid. 29 Ibid. 30 Ibid. 118

It was in this context that Scroggs blamed the Civil Wars on the lawyers: the ‘ill Times’ were a failure of the ‘Integrity of the Robe’. Closing, he offered a recapitulation of the relationship between prerogative and liberties. In 1676, he had treated them as opposing, with each a threat to the other should they become enlarged. In 1678, he now accused those who held that ‘one is but an Invasion on the other’ as having misunderstood their relationship. In fact, ‘Prerogotive [is] the best Friend to Liberty’, for it was prerogative that ‘protects one Subject from the wildness of another’.31 From an account of judicial office as independent of the crown and possessed of a power to limit the king’s prerogative from overstepping appropriate margins, Scroggs now claimed that judicial office was defined by its loyalty to monarchy and its defence of the prerogative.

Chief Justice of the Court of Common Pleas John Vaughan’s entry into the debate did not confront the question of the judicial-sovereign relationship, but was equally contingent on the broader Restoration context. Vaughan’s particular subject was the question of jury impunity, and he presented his pamphlet Ignoramus Vindicated as a dialogue between the characters of Prejudice, who scorned juries as ‘Ignoramus-men’,32 and Indifference, who defended juries as a ‘necessary part of every Court’.33 In the previous chapter, we encountered similar claims regarding the necessity of judges respecting jury impunity in the House of Commons’s response to Justice John Kelyng fining a grand jury, and in John Hawles’s 1680 pamphlet, published a year prior to Ignoramus Vindicated, The English-mans Right.

Vaughan’s pamphlet was embedded in the language of office, presented as a consideration of the ‘weight of [the] office’ of jurymen.34 The principal defence Vaughan’s Indifference gave in favour of juries was that the law necessitated their presence in court, requiring that judges respect their impunity. Jury impunity was due to the particular official function of the jury as establishers of fact, for which they had at their disposal processes not available to the judge, such as the use of interrogatives to ask questions; the court room itself consisted of a division of official labour in the trying of cases.35 The final quarter of the pamphlet merely consisted of a recitation of Vaughan’s own argument in Bushel’s Case, in which he released Edward Bushell, a juryman who had been imprisoned over a refusal to find guilty accused Quakers.

31 Ibid., 2. 32 John Vaughan, Ignoramus Vindicated, in a Dialogue between Prejudice and Indifference (London: 1681), 1. 33 Ibid., 9. 34 Ibid., 1. 35 Ibid., 4. 119

That Vaughan published on judicial office without mention of the judge-sovereign relationship shows the spread of debate over judicial office; a varied terrain consisting of multiple fronts, reflecting a major literary preoccupation in the Restoration largely unrecognised by historians.

Francis North’s speech to Edmund Saunders upon the latter’s appointment as Chief Justice of the Court of King’s Bench, published in 1682, presents a return to the subject of sovereign- judicial relations. Scroggs’s 1678 speech had been given in the wake of two judicial dismissals, but North’s speech followed a further six dismissals, including that of Scroggs, who Saunders was replacing. The vulnerability of the judiciary was on clear display in North’s rhetoric. North emphasised the importance of ‘long experience’ to judicial office, and the importance of subduing ‘unruly passions’ when judging.36 But the majority of his speech explicated judicial office as a servant of sovereign will. A preference towards kingship was to guide sentences: criminals were be severely punished in order to guard the ‘King’s Revenue’.37 The greatest crime was sedition; the judiciary’s foremost task was the protection of the king. Indeed, the law existed ‘for the Support of [the King’s] Government’, and North expressed hope that the king would be ‘satisfied’ in the law’s operation.38 Judicial office was not independent of the crown, but a servant of it, working to protect and please the king.

III The most extreme critique of monarchy by the judiciary we have encountered so far in the Restoration was Scroggs’s 1676 speech, in which he defended judicial office as maintaining a balance between prerogative and liberty. In comparison, Matthew Hale’s writings on the common law offer a far more aggressive attack on monarchy, and defence of the independence and wide scope of judicial office. Hale was in a particularly advantageous position to articulate such an account of judicial office: his legal writings were never published during his lifetime, and thus never risked rendering him vulnerable to dismissal.39 Like Scroggs’s 1676 speech, Hale’s writings also preceded the wave of judicial dismissals in the late 1670s; Hale died in 1676, so did not live to see the king turn upon the judiciary. Moreover, as one of the earliest judicial appointments of the Restoration, Hale was appointed during good behaviour, and so would have had legal recourse should Charles II have attempted to dismiss him.

36 Francis North, The Lord Keeper’s Speech to Mr. Serjeant Saunders (London: 1682), 5. 37 Ibid., 7. 38 Ibid., 12. 39 Whether Hale circulated them privately is unknown. 120

Hale is also exceptional for the attention he has received from scholars; unlike almost all other seventeenth century jurists, Hale has received a measure of attention from intellectual historians. In particular, these historians approach his work via the debate over the ancient constitution, where Hale is treated a cipher for ‘common law historiography’,40 or as representative of ‘whig historiography’.41 For these and other intellectual historians who discuss Hale, the tendency has been to describe his work as ‘theory’.42 As we saw regarding Hobbes’s approach to judicial office in the previous chapter, this presumptive reification of theory has occluded our ability to correctly understand the rhetoric at issue. For like Hobbes, Hale presented a rich and detailed account of judicial office that drew heavily on his common law predecessors like St German and Coke, the latter of whom mentored Hale.

Though he published none of his legal writings, Hale wrote a large quantity of material on the common law and judicial office in his lifetime, as well as a number of works on religious subjects. This section will focus in particular on his incomplete response to Hobbes’s Dialogue, but will also make reference to his other works on the law. Most of these works were published from the eighteenth century onwards, having been discovered in his private papers, and it was in this form that Blackstone encountered Hale’s works, using them heavily in his own scaffolding of the common law and judicial office. Some remain unpublished in his papers held at Lambeth Palace Library, and I will draw here on unpublished manuscripts, eighteenth century publications, and more contemporary publications of Hale’s work.

One of Hale’s earliest contributions to the subject of judicial-sovereign relations was Prerogativa Regis, published most recently by D. E. C. Yale as The Prerogatives of the King, which combines Prerogativa Regis and Hale’s Rights of the Crown, which was likely written in the 1640s. Accurate dating of Prerogativa Regis is difficult, though Yale tentatively suggests it was largely written during the Interregnum, with some parts written in the early years of the Restoration, and others in the 1640s.43 In The Prerogatives of the King, Hale can be found offering many of the arguments he would repeat in the later parts of his career as King’s Bench

40 Pocock, The Ancient Constitution and the Feudal Law, 170. 41 Skinner, ‘History and Ideology in the English Revolution’, 239. 42 For example, Pocock, The Ancient Constitution and the Feudal Law, 174; David S. Sytsma, ‘Matthew Hale as Theologian and Natural Law Theorist’, in Mark Hill and R. H. Helmholz, eds., Great Christian Jurists in English History (Cambridge: Cambridge University Press, 2017), 163-86; Cromartie, Sir Matthew Hale, passim. 43 D. E. C. Yale, ‘Introduction’, in Matthew Hale, The Prerogatives of the King (London: Selden Society, 1976), ix-lxxviii, at xxiv-xxv. 121

Chief Justice. These earlier writings, though, reveal a slightly greater sympathy for the sovereign; a sympathy Hale would retract by the 1670s, once he held judicial office under a king.

Hale opened the text with a rejection of James VI and I’s and Hobbes’s argument that William took the throne by conquest, creating an uninhibited right of kingship flowing to the present king. Not so, responded Hale: William’s title flowed from Edward the Confessor, and his kingship thus reflected continuity in English law.44 Importantly, historiographical argumentation did not sustain Hale’s text, which was an extensive and detailed reflection on the rights attributing to the sovereign. Considering how to ascertain the rights of kingship, Hale claimed that where the original form of a government cannot be found, the rights were to be discovered in the customs of the realm.

These customs were elucidated through the kingdom’s laws.45 In England, ‘the original pact whereby the government of this kingdom was settled appears not’, and so the common law was the necessary source of the king’s rights.46 And the common law revealed that though the king independently held sovereignty,47 this did not entail an exclusive or untrammelled law-making power, but a ‘qualified’ one.48 Most significantly, laws ‘regularly… cannot be made by him without the advice or assent of parliament’.49 Though such laws remained the ‘king’s laws’, they were not, and could not be, made by the king alone; parliament held a necessary role in legislating.50

In asserting that parliament were necessary to the legislative process, Hale offered a counter to the claims of James, Bacon, and Hobbes that the king was the only source of law. He provided a further attack on their arguments when he went on to claim that the king was not impervious to law, either. Though the law could not touch the king in ‘his person’, it could render ‘void’ any act he took that was against the law; an attempt to legislate without parliament’s advice or assent, for example, would be void.51 We can see here an attempt by Hale to position judicial

44 Hale, Prerogatives of the King, 4. 45 Ibid., 7. 46 Ibid., 8. 47 Ibid., 11. 48 Ibid., 14. 49 Ibid. 50 Ibid. 51 Ibid., 15. 122 office in a manner similar to that Scroggs would deploy in his 1676 speech. There, Scroggs claimed that the judiciary policed the limits of sovereign office, and here, Hale claimed the judiciary were required to regulate the king’s actions, voiding those that fell outside the law.

Hale’s Rights of the Crown, compiled by Yale at the end of the Prerogatives of the King, offers similar claims. Hale argued there, too, that ‘the king alone cannot make any law’,52 and because he could not make law alone, he could not revoke law alone: to abrogate a law ‘clearly requires the same power at least with the making of a law’.53 Clarifying this claim, Hale asserted that as the king ‘hath not a sole or at least an absolute power of making or altering laws, but a qualified’ power, he was ‘bound by his own laws’, unable to dispense with them.54 As he had claimed in Prerogativa Regis, Hale noted that the king was not subject to legal punishments in his person, but his acts could be rendered void where they overstepped the law.55 Hale’s account of a king bound by law again empowered judicial office, once more entrusted with administering the boundaries of monarchical office.

Writing in the Restoration, Hale’s account of a judiciary empowered against sovereignty became more aggressive, and his focus turned more towards the attributes of judges that ensured their independence from the crown, a shift explicable by Hale now holding judicial office under a king. Hale’s ‘Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes His Dialogue of the Lawe’ and his History of the Common Law in England were unpublished during his lifetime. We can reliably claim both were written during the Restoration, though, for the former was a response to Hobbes’s Dialogue, likely written in the early 1670s, and the latter contains explicit reference to the Civil Wars and Interregnum as a period in the English past.56 The History was repeatedly published throughout the eighteenth century, while the ‘Reflections’ was first published until 1921, by William Holdsworth from Harleian MS 711. Hale produced at least one other version of the ‘Reflections’, now held in Lambeth Palace Library as MS 3479. His argument is largely the same in both versions of the text, but is somewhat more assertive in the unpublished manuscript.

52 Ibid., 175. 53 Ibid., 170. 54 Ibid., 176. 55 Ibid., 176-7. 56 Hale, The History of the Common Law of England, 30. 123

It remains unclear how Hale encountered Hobbes’s Dialogue. Hale died on Christmas Day 1676, five years prior to the Dialogue’s publication. Most likely, he read the text as part of his official duties as a senior common law judge; the judiciary were involved in the licensing of legal texts.57 Even this explanation is only tentative, though, given that Hobbes himself claimed in 1679 he did not want the text published.58 Regardless of how he came upon the text, Hale understood the Dialogue as an attack on an independent judicial office. Hale’s response consisted of a detailed defence of the ways in which the requisite comportment of the judge was cultivated; judicial office was grounded on the intensive study of the history of English law, a history in which the king played only a marginal role, and which provided scope for the judiciary to regulate the extent of the king’s powers.

Indeed, though the dominant scholarly approach to Hale’s ‘Reflections’ has been to describe it in terms of the apparent historiographic dispute over the ancient constitution, we can find almost no evidence of Hale’s dedication to factional historiography, much as we found scant evidence in the Dialogue. Where Hobbes had deployed both arguments for conquest and custom in asserting judicial office’s subordination to the sovereign, Hale essentially rendered the question of conquest irrelevant. He explained first that William had perpetrated no conquest, but rather acquired the throne by right of succession: his crown ‘was not by right of Conquest, but of Succession’, so Hobbes was ‘very mistaken’.59 The crucial move came next: even if William had attempted a conquest, his decision to confirm the laws of King Edward, King Harold’s predecessor, ensured legal continuity.60 In other words, whether conquest had occurred or not, William’s subsequent decision to affirm pre-invasion law rendered conquest irrelevant, for it ensured legal continuity between the period after and before his invasion. Hale’s entire consideration of historiography lasted three paragraphs.61

Like Hobbes, Hale was not a factional adherent to a particular account of history, but rather deployed historiography strategically in service of his argument regarding judicial office, an argument on which he offered none of the ambivalence with which he discussed historiography. Hale’s argument on judicial office in the ‘Reflections’ shared some similarities

57 For a reference to this power of the judiciary in a case, see: The East India Company and Sandys (1683) 7 ER 90, 62-4. 58 Cromartie and Skinner, ‘General Introduction’, xvi. 59 Hale, ‘Reflections’, 295. 60 Ibid. 61 Ibid., 295-6. 124 with the Restoration rhetoric of judicial office, but most clearly drew on pre-Civil Wars defences of judicial independence. As St German had, Hale dismissed an account of a hierarchical legal system with a sovereign at its apex, marginalising the king’s role in the law as one law-maker, but not the only one. Similar to Coke, Hale asserted the unique skills of judicial officers, cultivated through an extensive initiation at the Inns of Court that made the judiciary’s subordination impossible, and attempts at it deadly.

Both manuscripts of Hale’s ‘Reflections’ consist of two sections, ‘In Caput Primum of Laws in Generall and the Law of Reason’ and ‘Of Soveraigne Power’, respective responses to the first two chapters of Hobbes’s Dialogue. In the first section Hale set out his account of judicial office. He opened by conceding Hobbes’s claim that all men possessed a natural reason, which Hale described as a ‘Facultie co[m]mon to all’. Despite this ubiquity, reason differed in each man: there were ‘various degrees of Quickness, Activitie and perfection in this reasoning facultie’. Further, reason inclined differently in different men, preparing men better for some offices than others, for a reason ‘dextrous and ready in Phisick is not Suited for Politiques’. Hobbes’s suggestion that there was no reason other than natural reason grounding judicial office received Hale’s scorn: ‘those that p[re]tend to universall Knowledge are but Superficiall and Seldome peirce deepe into any thing’.

Not only was reason variable between men, but when applied to an office, it underwent a transformation. Reason was ‘habituated’ to an office through ‘Use and Exercise’, and it was through this process that one became ‘a Mathematician, a Philosopher, a Politician… a Lawyer’. Such an ‘application of the Facultie of reason to the particular Subject’ meant that no two offices were comparable in terms of the reason required to hold them.62 It was impossible that two men of equal ‘perfection of the reasoning Facultie’ could ‘Expect an equall aptitude and perfection in each oth[e]rs Science of art’.63 Hale was more precise in MS 3479: it was not ‘indeterminate reason or reason at large’ that underlay offices, but ‘reason modifyed’ to its ‘spetiall object’.64

Of all the offices, the habituation of reason required to hold legal office was the most complex, making law the least comprehensible subject to the uninitiated. This was because certainty was

62 Ibid., 287. 63 Ibid., 288. 64 Matthew Hale, MS 3479, Lambeth Palace Library, 5. 125 impossible in the law, which was not a unified system, but rather consisted of the aggregation of ‘particulars’,65 a repetition of Coke’s claim that the law consisted of ‘infinite particulars’.66 The central problem in the common law was that it was impossible to find ‘a Co[m]mon Consent or agreem[en]t’ between people’s ‘Notion of Just and fitt’, even if all claimed to properly understand such terms.67 Indeed, in an implicit swipe at Hobbes and his Phylosopher, Hale claimed that although experience in ‘Humane affaires’ helped to develop a useful sense of such terms, philosophical training did not.68

Turning more forcefully upon Hobbes’s argument, Hale scorned a focus on ‘abstract Notions touching Justice and Right’, both subjects to which Hobbes had given serious attention in the Dialogue, and the former of which his interlocutors had defined through reference to Aristotle. It is here that we encounter Hale’s only use of the word ‘theory’, deployed as a pejorative against Hobbes’s approach.69 We saw in the previous chapter that Hobbes’s Dialogue was not a theory of law but embedded in the idiom of office as an account of judicial practice. But his invocation of Aristotle in reflection on justice had left him vulnerable to such an attack. Philosophers, Hale claimed, were ‘most Co[m]monly the worst Judges that can be’, for they relied on ‘Speculacons Theoryes and distinctions’ instead of ‘Ordinary Measures of right and wrong’. Such an approach was so damaging for it created ‘Instability, uncertaintie and varietie’ in the law.70

In more general terms, Hale wrote in MS 3479 of the ‘harminge’ that would befall the law should those like Hobbes, ‘inacquianted with the institution’, seek to work in it.71 The only means of addressing the uncertainty endemic to the common law was through grounding judicial office on extensive training in the law’s history; grounding it in the ‘long and Iterated Experience’ of centuries of legal decisions.72 Through ‘readeing, Study and observation’ of historical precedents,73 lawyers learned to recognise historical agreement on ‘certaine Laws

65 Hale, ‘Reflections’, 288. 66 Coke, ‘Reports’, 5. 67 Hale, ‘Reflections’, 288. 68 Ibid., 289. 69 Hale used ‘theory’ as a dysphemism elsewhere, too: Matthew Hale, A Treatise Shewing how Useful, Safe, Reasonable, and Beneficial the Inrolling and Registring of al Conveyances of Lands may be (London: 1710), 5; Matthew Hale, Contemplations Moral and Divine (London: 1711), 2. 70 Hale, ‘Reflections’, 289. 71 Hale, MS 3479, 3. 72 Hale, ‘Reflections’, 291. 73 Ibid., 292. 126 and rules and methods of administration of Co[m]mon Justice’.74 Basing judicial office on these historical points of consistency – laws ‘four or five hundr[e]d’ years old cited in court ‘a hundred or two hundr[e]d’ times75 – ensured that judgments would avoid contradiction, instability, and partiality.76

It remained the case that even in such a legal system ‘Some… may Suffer’ due to ‘some mischiefes in relation to particulars’ in the law, but the greater threat of ‘Arbitrary and uncertaine’ laws, under which ‘Infinite more must Suffer’, would be avoided.77 Judges thus had to navigate a fine balance between selecting appropriate precedents from legal history and curbing ancillary damage that might arise from their application. Mocking the claim of Hobbes’s Phylosopher that a judge need only read the preambles of statutes, Hale affirmed that this intensive legal training was significantly preferable to an attempt to ground judicial office in merely observing the ‘Titles of the Statutes’.78

Having explicated an account of judicial office antagonistic in almost every way to Hobbes’s, Hale turned in the second section of the ‘Reflections’ to an explanation of what this meant for Hobbes’s claim that the king was the sole author of law. Hobbes had argued that the office of sovereignty entailed an exclusive law-making power, and Hale disagreed. An exclusive power to make law vested in the king was not sovereignty, but ‘absolute Dominion or Sovereignty’, a state occurring rarely but through conquest, and even then, generally modified.79 Crucially, it did not prevail in England, where the king held a ‘Soveraigne Power’ subject to ‘Qualifications’.80

English sovereignty meant that the king held official powers to declare war and peace, pardon offences, raise a militia, make laws, give value to money, and was the source of all legal jurisdictions.81 The qualifications were significant, though. First, parliamentary consent was required to send an army abroad or to raise money to form a militia. Second, and most significantly, the king’s law-making power was shared with parliament: the king could make

74 Ibid., 289. 75 Ibid., 291. 76 Ibid., 289. 77 Ibid., 290. 78 Ibid., 292-3. 79 Ibid., 295. 80 Ibid., 296. 81 Ibid. 127 no law alone, but only with parliamentary consent.82 This was a stronger argument than that which Hale deployed in Prerogativa Regis, where the king needed only advice or assent; no longer did assent suffice, as parliament’s agreement was now necessary.

Hale’s argument was not simply that the king could make law only with parliament’s consent, though, and we can see the influence of St German on Hale’s work most obviously here. Hale’s claim, like St German’s, was that the common law arose from multiple sources, not merely statute. Hale’s legal scheme was simpler that St German’s six-pronged typology of legal sources, as Hale simply divided English law into written and unwritten, a classification he discussed in his History of the Common Law in England as the lex scripta and lex non scripta83 ‘[W]ritten Laws’, as Hale explained in the ‘Reflections’ were legislation, those statutes created by the king and parliament.84 The unwritten law of England, though, consisted of those laws developed within the common law itself, through slow temporal accretion, in a centuries-long process of interpreting and applying precedent.

The implicit counter to Hobbes that Hale offered here was that the lex non scripta, which constituted the bulk of English law, could not be attributed to kingship. Where Hobbes had contended all law arose from the king, Hale responded that only some law arose from the king in conjunction with parliament, and he made this point with greater clarity in the History. The lex scripta was exclusively those statutes made after 1189, the year that divided time within and beyond memory.85 The lex non scripta was less easily defined, but Hale claimed it had three sources: statutes made prior to 1189 and now forgotten; customs; and judicial decisions themselves.86 Crucially, only the first of these sources gave any role to king and parliament for having created these now-forgotten statutes, but even here, it was not the statutes themselves that held force in law. Rather, it was whatever remained of them, absorbed and modified through association with the ‘particular Variations and Accessions’ of the common law, that prevailed.87 Though king and parliament might be responsible for the lex scripta, they had almost no role in the lex non scripta.

82 Ibid., 296-7. 83 Hale, The History of the Common Law of England, 3, 44-5. 84 Hale, ‘Reflections’, 294. 85 Hale, The History of the Common Law of England, 3. 86 Ibid., 44-5, 28. 87 Ibid., 40. 128

Hale’s displacement of the centrality of the king in the law-making process had more significant stakes, too. Both James and Hobbes had argued for the inviolability of the king before the law. These accounts, though, rested on asserting that the king was the lone source of law; the king could not bind himself with a law that he himself had made. If he was not the lone legal source, though, then he was not legally inviolable. We can see here a similarity with Hale’s earlier writings, where he had claimed that the king could not dispense with law as he was not its sole author. Though the ‘Kinges Person is Sacred’,88 the office of king was not, and could thus be restricted in its scope of action by the common lawyers, for the law ‘bindes [th]e Kinges Acts, and make them void if they are ag[ains]t Law’.89 Judicial office was thus not subordinate to the king but held official power relative to the king; an ability to restrain the king’s actions when he sought to overstep the bounds of sovereign office. Indeed, it was Charles I’s attempt to overstep these official bounds that had caused the Civil Wars: attempting to tax the people without parliamentary consent, Charles had made ‘Mans mindes… Pendulous and unquiett’.90

Hale’s claim was that Charles I had brought about civil war by exceeding the bounds the common law placed on sovereign office. And in his History of the Common Law of England, he argued that it was only the common law that made it possible for England to recover from the damage of the Civil Wars and Interregnum. In both cases, the common law and the judiciary who administered it were cast as the defenders of the English state; the violation of their profession an assault on the state. Using the metaphor of a body returned to health after an illness through ‘due Temperament and Constitution’, Hale described the common law as having returned England from the ‘Errors, Distempers or Iniquities’ of the Civil Wars.91 This state-preservation function was distinct to the common law, and Hale contrasted it to the role played by other jurisdictions; the ecclesiastical courts, for example, existed pro reformatione morum (for the reformation of morals) and pro salute animae (for the salvation of souls).92

Turning to explain how the common law so defended England, Hale deployed a language similar to that used by Scroggs in his 1676 speech. Hale claimed that the common law was the foundation of ‘Peace, Happiness, Honour and Justice’, because it safeguarded the king and his

88 Hale, ‘Reflections’, 301. 89 Ibid., 296. 90 Ibid., 302. 91 Hale, History of the Common Law of England, 30. 92 Ibid., 21. 129 powers, and the liberties of subjects.93 In the ‘Reflections’, Hale discussed this balance between sovereign and subjects as a ‘Golden Knott’ and an ‘Ancient and Solemne Institution’.94 Judicial officeholding consisted in the preservation of this institution and the balancing of these offices. Affirming his opposition to intervention in the common law, Hale claimed that sovereigns and parliaments historically afforded the common law ‘free Course’, and took ‘great Care’ to preserve it.95 This was an institution with a specially trained staff that stood independent of the other levers of the English state.

Hale approached judicial office in similar terms in ‘Considerations Touching the Amendment or Alteration of Lawes’.96 Here, Hale cautioned against statutory intervention amending the course of English law, another attack on the idea that legislation was the central law-making process in England. Against statute created by those untrained in law, Hale emphasised the importance of judges utilising legal reasoning rooted in the interpretation and application of past laws. ‘[T]ime and long experience’ supplied a better basis for judgments than even the ‘wisest and acutest wits’.97 Similar to his claim in the ‘Reflections’ that reliance on precedent was imperfect but the best means of judging, Hale claimed that only God was perfect, but to rely on precedent was at least good ‘ut plurimum’ (for the most part).98

Hale repeated many of the same arguments in The Analysis of the Law, showing a significant degree of consistency across his works. He presented the Analysis as a learning resource,99 an attempt to provide a ‘Reduction’ of the law for simpler understanding, with the caveat that the ‘Particulars’ of the law were ‘so many’ that the law was irreducible to ‘an exact Logical Method’.100 Most significantly, Hale restated his argument from the ‘Reflections’ that sovereignty entailed a particular set of rights or prerogatives – the rights he listed mirror those of the ‘Reflections’ – but was not an absolute power; it was a power restrained by the law, and thus restrained by the common law judiciary.101 The king held a ‘Qualified and Co-ordinate

93 Ibid., 31. 94 Hale, ‘Reflections’, 301. 95 Hale, History of the Common Law of England, 31, 36. 96 Matthew Hale, ‘Considerations Touching the Amendment or Alteration of Lawes by Lord Chief-Justice Hale’, in Francis Hargraves, ed., A Collection of Tracts Relative to the Law of England, from Manuscripts: Volume 1 (London: 1787), 249-90. 97 Ibid., 254. 98 Ibid., 258. 99 See also Matthew Hale, Pleas of the Crown (London: 1716). 100 Matthew Hale, The Analysis of the Law (London: 1713). 101 Ibid., 10-31. 130

Power’.102 In particular, he could not make law without parliamentary consent, nor could he even pass law in relation to ecclesiastical matters unless the ‘Clergy in Convocation [were] assembled’; an additional restriction on sovereignty not mentioned in the ‘Reflections’.103

Across these texts, Hale thus proffered a response to those like Hobbes who defended the king as sole source of law, and asserted the subordination of judicial office to such a sovereign. This argument was only vaguely related to Pocock’s ancient constitution, for though Hale made references to the continuity of law, and denied William’s conquest, his clear focus was on judicial office, the scope of which animated his various legal writings. As we have seen, too, the rejection of conquest held little weight within his argument, for Hale insulated his account in case a conquest had occurred. Moreover, Hale rejected theory, turning the term against Hobbes as a dysphemism on the grounds that theorising in law would blind one to the particularised attention required of a judge.

This account of judicial office as grounded in the unique training undergone by common lawyers that enabled them to survey and parse the history of English law, interpreting and applying it in cases, drew extensively on the long history of the debate over judicial office, as he repurposed the arguments of St German and Coke, in particular. Hale emphasised the dispersion of legal sources, thus minimising the position of the sovereign, and the particularity of the training required to comprehend these varied sources, as well as the danger inherent in those untrained intervening in the law. Against those accounts that claimed the king was inviolable relative to the law as the exclusive source of law, Hale followed through the implication of legal dispersion to argue that the law could bind the king, and claimed that judicial office held the power to do this.

For all Hale’s antagonism towards Hobbes’s argument, it is important to recognise that their accounts were not entirely at odds with one another, though. For there was one aspect of judicial office on which they agreed, and their agreement is significant. We saw in Chapter 2 that Hobbes had denied any independent legal authority to the Church, claiming that ecclesiastical law was law only by sovereign act. Hale made a similar claim, if one grounded in his rival understanding of law-making. For Hale, writing in his History of the Common Law of England,

102 Ibid., 11. 103 Ibid. 131 ecclesiastical law was only law either because it was made law in England by parliament, or as customary practice had been absorbed into the common law; only through parliamentary or judicial authority, not ecclesiastical act, could it be ‘admitted’.104

He made similar claims in earlier writings, too, arguing that the Church had no independent authority in England, for all its power ‘derived from the crown’, or ‘customs or civil usages’.105 On this basis Hale declared ‘the subordination and subservience of the ecclesiastical power to the temporal’,106 and explained that even within their own jurisdiction, the clergy could never hold ‘an independent right unsubordinate to the supreme power of the crown of England’.107 Clerical legal authority, entailing an ability to guide judicial office, was firmly denied, as the clergy only held office, and the Church itself only held power, by the lex scripta and lex non scripta; by statute or custom.

Hale’s argument here constituted a rhetorical block against those members of the Church of England clergy like Robert Harrison and William Stainforth who possessed pretences to dictate from the pulpit to the judiciary on the appropriate exercise of judicial office. As we saw in the previous chapter, these priests asserted the subordination of judicial to clerical office on the grounds that judges were principally the servants of God, a subordination that Hobbes and Hale were united in rejecting. Hale also dismissed the specific proposal of Hugh Peters to replace the common law with a fresh legal system based in Mosaic Law. Hale would have known Peters and his arguments – both served on the Hale Commission – and Hale attacked Peters’ proposal on the grounds that the laws of Moses had been intended for the people to whom they were given; it was not a law fit for seventeenth century England.108

This contextualisation underscores two points. First, it highlights the degree to which this debate was never principally over history. Not only did Hale’s and Hobbes’s arguments have only a tangential relationship to historiography, but they mobilised these arguments against other interlocutors for whom historiography was irrelevant. A dispute that involved Hale, Hobbes, and the Church of England clergy, among others, in which the clergy’s argument consisted of the assertion that judicial office was subservient to divine will, was not a dispute

104 Hale, The History of the Common Law of England, 19-20. 105 Hale, Prerogatives of the King, 146. 106 Ibid., 163. 107 Ibid., 164. 108 Hale, ‘Considerations’, 258-9. 132 about the ancient constitution. How could it be, when participants barely relied on historiography, if at all? Rather, the dispute was one over judicial office, as the combatants mobilised the casuistic rhetoric of office to specify the exercise of judicial officeholding, drawing on well-established linguistic resources in the English past.

Second, contextualising Hale and Hobbes in relation to the ecclesiastical commentary on judicial office emphasises that the attempt to carve the dispute between Hale and Hobbes into one of two irreconcilable ideologies or theories is mistaken. It is to reify into the abstract a debate that was far more grounded; a fight over what judges did in the court room that was carried out in a casuistical idiom. In the messier context of the rhetorical brawl over judicial practice, shifting alliances and temporary truces are to be expected. Both Hale and Hobbes sought to defend judicial office from ecclesiastical oversight; both Hobbes and the clergy sought to subordinate the law to external institution, whether crown or Church. Approaching the dispute between Hale and Hobbes through a binary framework of theoretical opposition, as Skinner and Pocock have, thus occludes the complexities of debate over office.

Conclusion The judiciary were divided in their statements outside of court on the scope and function of judicial office. The most obvious reason for this was the vulnerability of their office, for most Restoration judges were at risk of immediate dismissal should they anger the king. The central rhetorical division was between those who sought to subordinate judicial to sovereign office, and those who attempted to cast the former as independent of the latter. This division was clearly shaped by the changing status of the judge in the Restoration. When Charles began aggressively dismissing judges from 1676, it is hard to find any defenders of judicial independence. Indeed, William Scroggs, a defender of independence in 1676, was by 1678 an advocate of judicial subordination. Prior to the spate of dismissals, it is far easier to find accounts of the judiciary as either responsible for curbing monarchical excess, or working on the basis of ancient law created outside of the king, for example in Edward Turner’s and Matthew Hale’s work.

Hale’s work, never published during his lifetime, was the most antagonistic to accounts of judicial subordination. Hale grappled directly with Hobbes, penning a response to Hobbes’s Dialogue that defended the unique arts of reasoning possessed by the common lawyers, and the grounding of judicial office in studying centuries of law; a process so complicated as to 133 render their office unsubordinatable. He sustained this argument across an array of texts, too, all of which defended judicial independence in terms of the specialised training of the judge, the range of sources on which he drew, which exceeded laws made by king and parliament, and judicial power relative to the king. Hale’s argument relied extensively on rhetorical sources we encountered in Chapter 1, most notably the work of Edward Coke and Christopher St German. He also cast his writing as a contribution to the specific rhetorical contest of the Restoration, invoking the liberties of subjects, a key trope in the Restoration debate over judicial office.

It is this rejection of a subordinated judiciary, advanced by Hale, Scroggs for a time, and Turner, that is significant for how we understand the rhetorical dispute over judicial office in the Restoration. For if senior members of the common law judiciary – indeed, Hale’s response to Hobbes was written when he was the most senior common lawyer in England – denied judicial subordination, then we cannot simply proceed from declarations of such subordination in Hobbes to an assumption that Hobbes was accurately describing the judicial-sovereign relationship. And this has been what scholars have done: moved from declarations of a subordinate judiciary by those outside the law to descriptions of the law in these terms. As we have seen, accounts of a subordinate judiciary were not neutral descriptions of the legal sphere, but polemic, as clergy and monarchical absolutists, in particular, sought to control a judiciary that in some cases actively pushed back. None of the judiciary endorsed accounts of ecclesiastical authority in the law; nor did Hobbes, in fact. And though members of the judiciary at times – particularly in the wake of judicial dismissal – deployed accounts of their subordination, other accounts emphasised their independence. 134

Part 1: Conclusion

The preceding three chapters have covered a wide-ranging and fierce debate over judicial office that raged from at least the early sixteenth century through the Restoration in the latter half of the seventeenth century. Many actors contributed to this debate: monarchs, lawyers, judges, pamphleteers, philosophers, preachers, and bishops. In most cases, the contributors were antagonistic towards the common lawyers, seeking to subordinate judicial office to forces beyond the legal domain; to the king; to parliament; to the people; or to God’s will as interpreted by a priesthood. The common lawyers pushed back, though. Most significantly, Christopher St German and two of the most prominent Chief Justices of the Court of King’s Bench in the seventeenth century, Edward Coke and Matthew Hale, defended judicial independence. This defence rejected any divine role in the common law, and held that judges drew on a wide array of legal sources in their judgments, an array in which the king was only marginal, and did so through the use of specialised skills cultivated through extensive training that made oversight of their office impossible.

That a wealth of actors sought to set the scope of judicial office was because the office was seen consistently as central to English government. We can see this through the range of disputes in which judicial office became central, and the problems which it was alleged judicial office was either cause of or solution to. In defending his right to the English throne, James VI and I sought to subordinate judicial to sovereign office. Having acceded to the throne, James’s ability to tax without parliament’s consent was challenged by Edward Coke through an invocation of the ancient laws upon which judicial office supposedly rested. The function of the judge was in dispute in the trial of Charles I, and the Interregnum governments attempted three times to reform the common law.

In the Restoration, Hobbes blamed the common lawyers for the Civil Wars, while Hale commended their ability to restore the monarchy and with this stabilise the English state. The House of Commons repeatedly attempted to punish judicial malpractice. Judicial office became bound up in the Popish plot, and the dismissal of judges was treated as a key means for Charles II and James II through which they could impose their will upon the judiciary. Ecclesiastical commentary invoked the judiciary as ciphers of God’s will. In short, few disputes over the seventeenth century English state did not involve claims over the scope of judicial office; 135 regardless of how it was described, the office was considered central to the functioning of the English state.

Easy summary of this intensive and extensive debate is impossible, but an important conclusion is that the most common and consistent Restoration attempts to subordinate judicial office did so in terms of parliamentary office, the will of the sovereign king, or divine will interpreted by the clergy. Crucially, claims of judicial subordination to ecclesiastical office presented a radically different depiction of the English legal system to accounts of judicial subordination to parliamentary or monarchical office. The attempted impeachment of justices regarding their responsibilities towards the liberties of subjects was not a claim of parliamentary authority inconsistent with the claim that the judiciary were subordinate to the king. But ecclesiastical accounts of the judicial office that described the judiciary as subordinate to divine will interpreted by the clergy gave no space in their juridical scheme to king or parliament; the divine duties of judicial office, conveyed to the judiciary by the clergy, were pre-eminent. The judiciary rejected this ecclesiastical approach outright, but responded to claims of their subordination to kingship varyingly, from acceptance to outright rejection.

The centrality of judicial office, though, has been largely ignored by intellectual historians. Rather than dispute over office, they have tended to see theoretical conflict, for example over rival ideologies of the location of sovereignty, or between rival historiographies. Once we dispense with ‘theory’ as a descriptive device, replacing it with a focus on the rhetoric of office, we get a sense of the messiness and contingency of the wide ranging dispute over judicial office. Much of this dispute was not between clearly demarcated theoretical factions, but consisted in the combining and recombining of various rhetorical approaches to the office. It is for this reason that Hale and Hobbes both invoked the authority of ancient law while developing rival accounts of judicial office, for the former independent of the sovereign, for the latter wholly subordinate. And the messiness and contingency of the debate over office also explains while Hale and Hobbes, arch-opponents on the sovereign-judicial relationship, could both deny any ecclesiastical authority in law.

Focusing on the dispute over office also highlights the resistance of the judiciary to accounts of judicial subordination. Key to this resistance was an argument developed most clearly by Christopher St German and Matthew Hale: sovereignty entailed a marginal legal power, for the judiciary drew on such a wide array of sources, which they arrogated through such complex 136 processes, that subordination was impossible. The absence of any judicial accounts describing their office in divine terms also raises serious questions regarding the supposed confessionalisation of the English state in this period. If judges avoided the Church’s accounts of judicial office as divinely derived, how can we rush to claims of a Church-state union? We will now turn to the exercise of judicial office in court, and the ways in which the Restoration judiciary responded to this dispute and engaged with king, parliament, and the Church of England.

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Part 2: The Exercise of Judicial Office

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Part 2: Introduction

Turning from the rhetoric to the exercise of judicial office, Part 2 explores the ways in which the contest over the status of judicial office played out in the Court of King’s Bench. The dispute covered in Part 1 centred on this office and sought to configure its exercise. As such, the practice of judicial office in court constitutes an engagement with this rhetoric; a response by the judiciary, in particular, to attempts to subordinate them, most prominently in relation to king, parliament, or Church. Part 2 demonstrates that the Restoration King’s Bench judiciary exercised their office as independent of these rival institutions. This argument rests on an extensive investigation into early modern English law, a practice rare among intellectual historians of the Restoration; Clark, for example, developed his account of confessionalisation through sparse citation of legislation and court cases.

Indeed, even those historians who have demonstrated the Restoration was not a unified confessional order but a conflictual space have tended to look elsewhere than the common law. In many cases, this merely entails a different focus to the present thesis, and this thesis thus sits alongside such work in filling out our understanding of the Restoration regime.1 Some accounts, though, entirely elide the common lawyers, despite their role in administering the statutes promoting uniformity. These accounts either treat the Church as itself responsible for statutory implementation,2 or the lawyers as merely one among many groups commentating on the legal structure of the Restoration regime, rather than as specialists in matters of law required to bring their expertise to bear on resolving such legal disputes.3

In contrast, these three chapters provide a rich legal history, including an account of statutory heresy law from the fourteenth century, ecclesiastical court practice, the Restoration statutes governing religious nonconformity, and most significantly, the analysis of hundreds of court cases heard by the Court of King’s Bench. In doing so, Part 2 does not simply look at the implementation of statute law in court, but gives significant attention to the common lawyers’ administration of their own particular form of law, the lex non scripta. Key to understanding

1 Rose, ‘By Law Established’; Rose, Godly Kingship in Restoration England; Goldie, ‘The Theory of Religious Intolerance in Restoration England’; Spurr, ‘Schism and the Restoration Church’. 2 Southcombe, ‘Dissent and the Restoration Church of England’; De Krey, ‘Rethinking the Restoration’; Tyacke, ‘From Laudians to Latitudinarians’. 3 Rose, ‘Royal Ecclesiastical Supremacy and the Restoration Church’. Here, Rose termed the lawyers ‘theorists’ on supremacy, rather than acknowledging them as specialists on the legal powers of the offices of the English state (Rose, ‘Royal Ecclesiastical Supremacy and the Restoration Church’, 329). 139 the means by which the judiciary demonstrated their independence of the Church is the distinction between spiritual and temporal, a traditionally Catholic division between concerns of salvation, the exclusive preserve of the Church, and questions regarding the redress of damages and preservation of the realm.

Throughout the seventeenth century, the Church of England defended its independence through claims of its exclusively spiritual jurisdiction. In contrast, the pre-eminent concern of the Restoration King’s Bench judiciary was to present their jurisdiction as focused on exclusively temporal concerns. The common lawyers relied explicitly on this distinction when contrasting their work to that of the Church courts. In doing so, they declared their priorities distinct from the Church. Some common lawyers even weaponised this distinction, using it to justify bringing matters out of the ecclesiastical courts and into common law; deploying the language of distinct spiritual and temporal jurisdictions to expand the common law.

Demonstrations of judicial independence from Church and king drove the engagements of King’s Bench with the lex scripta. Here, the judges engaged with legislation selectively. At times, they ignored it, quashing indictments for nonconformity. Where they cited statute, it was as a means to either further affirm their separation from the Church, or to defend their independence from the king. Restoration legislation increasingly configured nonconformity as an exclusively temporal concern, and the King’s Bench used this to justify their jurisdiction in matters of nonconformity, a matter long the preserve of the ecclesiastical courts. Both Charles and James sought to suspend in part or whole the penal laws regarding religion. In the face of this opposition, the judiciary repeatedly cited these laws in court, relying on them increasingly in a rebuke to the monarch’s wishes. Alongside other cases where the judiciary found unfavourably for the king or asserted their power relative to him, the statutes against nonconformity were invoked as a rejection of the notion that the judiciary were subordinate to the sovereign.

Judicial independence from parliament, king, and Church was most substantively demonstrated regarding the lex non scripta. This was an area of their jurisdiction that the common lawyers administered without the intervention of king or parliament, relying not on statute but on their own internal processes of crafting laws through the adaptation of precedent. Chapters 5 and 6 show that the common lawyers relied on precedent to engender stability in their jurisdiction to a remarkable extent; regardless of judicial personnel, the lex non scripta was administered in 140 near-identical ways through a focus on temporal concerns. Our study of the lex non scripta will culminate in Taylor’s Case, one of the most famous cases of the Restoration. Here, Chief Justice Matthew Hale blended statute and common law precedent, with a preference towards the latter, in convicting Taylor for common law defamation, despite Taylor’s offence being one that would traditionally have been treated as the statutory crime of nonconformity or ecclesiastical offence of heresy.

Structurally, Part 2 proceeds by setting out legislative and ecclesiastical approaches to heresy and religious nonconformity in Chapter 4, before it turns to the work of the King’s Bench, the focus of Chapters 5 and 6. In doing so, it provides the context of Church, king, and parliamentary configurations of these offences, before investigating how these configurations were approached by the common lawyers in court. In addition to this conclusion of an independent Restoration judiciary, Part 2 will also demonstrate that our understanding of confessionalisation as a union of Church and state is incorrect. Restoration England was a state that persecuted along confessional lines: if they were selective in doing so, the King’s Bench upheld convictions for nonconformity.

But the statutes against nonconformity increasingly cast it as an exclusively temporal problem, and the Bench took this as justification for the common law trying matters of nonconformity. In other words, simultaneous to the Church presenting itself as a spiritual institution, the policing of nonconformity was configured as a temporal question for the common law, a jurisdiction defined for its focus on temporal problems. This was a confessionalisation in which the Church was juridically marginalised, characterised not by a union of Church and state, but by the temporal concerns of the common lawyers. The account of Restoration England that emerges from these conclusions emphasises the instability of the Restoration English state, given it was defined by conflict between king and parliament, Church, and common lawyers.

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Chapter 4: Statute and Ecclesiastical Law before the Restoration

Seventeenth century England was characterised by a diversity of legal jurisdictions. Alongside the courts of common law, admiralty courts administered maritime disputes, while equity courts, including the Court of Chancery and the Exchequer, exercised a jurisdiction built on equity principles.1 The largest rival jurisdiction to the common law, though, was the ecclesiastical courts, which stretched across England in a network of diocese-based courts staffed by Church of England priests and bishops. These courts administered a blend of Roman law, Church of England canons, and English statute law and, until the Civil Wars, were arranged hierarchically, with the Court of High Commission the most senior ecclesiastical court in the realm, headed by the himself or his Commissary. These courts operated a range of independent actions, including heresy, and also shared jurisdiction of other actions, like defamation, with the common law courts. Few intellectual historians of Restoration England have given attention to the ecclesiastical courts. They remain the preserve of early modern scholars, who have done exceptional work recovering the work of these courts that remains unarrogated to accounts of the intellectual landscape of late seventeenth century England.2

Though this chapter cannot resolve this shortcoming of intellectual history more generally, it will go some way to incorporating the ecclesiastical law into the intellectual history of Restoration common law this thesis provides. The purpose of this chapter is to recover the legal language of king, parliament, and Church in relation to religious nonconformity. And it does so through recounting the history of the statutory offence of heresy, an offence heard in ecclesiastical courts, investigating ecclesiastical court practice in the seventeenth century, and looking at legislation regarding religious matters from the 1640s to the end of James II’s reign, and the parliamentary disputes that undergirded these statutes. In the course of this discussion, we will look, too, at Charles II’s and James II’s Royal Declarations of Indulgence and the disputes they engendered over whether the king had the power to suspend law regarding ecclesiastical matters.

1 On these courts see: Andrew Fitzmaurice, Sovereignty, Property, and Empire, 1500-2000 (Cambridge: Cambridge University Press, 2014), 230; , The Oxford History of the Laws of England: Volume 6 (Oxford: Oxford University Press, 2003), Chapters 9 and 11. 2 R. H. Helmholz has written extensively on the ecclesiastical courts: R. H. Helmholz, Roman Canon Law in Reformation England (Cambridge: Cambridge University Press, 1990); R. H. Helmholz, The Oxford History of the Laws of England: Volume 1 (Oxford: Oxford University Press, 2004). 142

This history of ecclesiastical law, statute, and the debates over statute and the attempts to suspend it provides a background against which we can assess the operation of the common lawyers in King’s Bench in Chapters 5 and 6, providing us with a means to establish the degree they followed sovereign and ecclesiastical approaches to religious matters. We saw that among the common lawyers as well as their absolutist opponents the king was understood as sovereign; in dispute was the range of powers possessed by the office. In their engagements with the legislation passed by king and parliament, and the Declarations of Indulgence, we can thus see how the judiciary responded to the exercise of sovereign office. In assessing how the common lawyers related to the ecclesiastical courts, whether they adopted their terminology or distinguished their jurisdictions, we can test their responses to the claims by some clergy- members for the subordination of judicial to clerical office.

As we will see, ecclesiastical heresy law dated back to the twelfth century, and was the subject of statutes since the fourteenth century. It was abolished in 1641, resuscitated in 1661, and in the interim, similar offences were legislated against by Civil War and Interregnum parliaments. Importantly, this history reveals key divergences in how heresy law was understood within different institutions. From its fourteenth century legislative inception, statute law cast heresy first as a threat to the temporal estate – to the government and stability of the English realm – and second to the spiritual estate – to the Church of England and its work in defending the souls of the English people.

This articulation of heresy law was sustained in statute into the sixteenth century, ending only with Elizabeth I’s Act of Supremacy; though the specificities of heresy law changed, the broad configuration of its stakes as a danger spiritual and temporal remained the same. Elizabeth’s Act of Supremacy presented heresy as an exclusively spiritual offence, providing a strict definition for those acts deemed heretical, and declared the subordination of the spiritual estate to the monarch’s authority. When we come to ecclesiastical court practice in the seventeenth century, though, we encounter an acceptance that heresy was purely spiritual, but no dedication to the strict Elizabethan definition of the offence. Rather, bishops presiding over ecclesiastical heresy trials in the seventeenth century articulated a wide jurisdictional scope with regard to heresy, describing it broadly as a threat to the Church and its role in fostering belief; an attempt to cultivate a jurisdictional independence from the crown.

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We thus see in this chapter a first assault on the accounts of intellectual historians that approach Restoration law as bluntly hierarchical, with legislation emanating from a sovereign carried out throughout the realm. This divergence between statutes governing the ecclesiastical courts and ecclesiastical court practice reveals a disjunction between sovereignty and law courts. If ecclesiastical courts were abandoning statute in favour of their own particular rules for governing cases, then the sovereign king was not in control of the Church courts. Rather, we begin to see England as a network of jurisdictions and legal authorities – king, parliament, common law, ecclesiastical law – operating in relation to one another without clear hierarchies.

This framing of the ecclesiastical jurisdiction as exclusively spiritual was sustained by the Church following its resuscitation in the Restoration. Accompanying this resuscitation, a brace of statutes legislated the necessity of conformity with Church doctrine. These statutes increasingly, however, began to configure religious nonconformity as an exclusively temporal concern, a rhetorical framing that located it beyond the Church’s jurisdictional scope. Concerns over the preservation of the realm animated the disputes over the Declarations of Indulgence, too. In other words, as the Church sought to double-down on the claim that it was an exclusively spiritual institution, and used this to argue against its subordination to the crown, it was juridically marginalised from the regulation of religious conformity.

In demonstrating the shifts between the rhetoric of temporal and spiritual offence in the regulation of blasphemy, heresy, and nonconformity, this account enriches our understanding of the relationship between the Church of England, crown, and parliament. That the relationship between spiritual and temporal was crucial to this institutional relationship has been demonstrated before, most notably by Jacqueline Rose and Jeffrey Collins.3 This chapter builds on their work by showing the degree to which this language was historically entrenched, emerging at least as early as the thirteenth century. Moreover, where Rose notes that the division was in dispute, and Collins that the Restoration Church defended itself as autonomous through an account of the spiritual nature of its work, this chapter details the shifting boudnary between temporal and spiritual in legislation and Church court practice throughout the seventeenth century. And in particular, it shows that the reliance on such a boundary backfired

3 Rose, Godly Kingship in Restoration England, Chapter 2; Collins, ‘The Restoration Bishops and the Royal Supremacy’. 144 on the Restoration Church; its emphasis on its spiritual autonomy resulting in its juridical marginalisation as legislation turned to the temporal.

This chapter consists of four sections. The first provides an overview of statutory heresy law. The purpose of this section will be to illustrate the ways in which the king – the office recognised as sovereign by the common lawyers and their opponents like Hobbes – and parliament made law regarding heresy. The second section recounts four prominent heresy trials in the early seventeenth century, illustrating the divergence between statute law governing the ecclesiastical courts and ecclesiastical practice. The third section turns to the period between the disestablishment of ecclesiastical heresy law in 1641 and Charles II’s ascension to the throne. It focuses specifically on the two statutes against blasphemy passed in 1648 and 1650, and the 1656 trial of James Nayler for blasphemy by the House of Commons. The fourth section offers a final piece of background for the ensuing two chapters: an overview of Restoration legislation on religious matters and the disputes over the Royal Declarations of Indulgence. In doing so, it recounts the laws in force regarding nonconformity at the time the Restoration King’s Bench operated; the laws they were required to enforce.

In providing an abridged account of a lengthy history of legislating, parliamentary debate, and court practice, the overview offered in this chapter is necessarily schematic. It is beyond its scope, for example, to detail the particular disputes that gave rise to different statutes, or the debates in the houses of parliament that preceded them all becoming law. The point here is not to write a comprehensive history of heresy or nonconformity, but rather to provide an overview of how such offences were defined in law by Church, monarch, and parliament. This is because it is these legal documents, not the conflicts or debates that preceded them, that had force in law, and it is thus these documents that were most relevant to the Restoration King’s Bench in their approaches to religious offences and the administration of the boundary between common and ecclesiastical courts. Indeed, Restoration common lawyers themselves recounted these histories through listing the statutes as a succession of atomised legal documents.4

I The early history of English heresy law remains unclear, though the offence appears to have emerged in the twelfth century. These trials were held in the ecclesiastical courts, perhaps

4 See, for example, Hale, Pleas of the Crown, 3-5. 145 wielding an internal form of canon law, given that no legislation against heresy existed at the time. The first execution for heresy, historians have consistently agreed, occurred in the thirteenth century, though there is dispute over the date and number of heretics executed: John Coffey claimed multiple heretics were executed in 12105; Cromartie and Skinner, following F. W. Maitland, claimed the first execution was of a deacon converted to Judaism, sentenced to death by burning by an Oxford ecclesiastical court in 1222.6

The history of heresy law begins to gain clarity in the fourteenth century, with the establishment of the statutory offence of heresy. Even here, though, the story is complex. Crafted in 1382, Richard II’s heresy statute sought to confront ‘the enormities ensuing the preaching of heresies’.7 The statute was aimed at curbing Lollard opposition to the Church of England,8 and empowered sheriffs to arrest travelling heretic preachers and their supporters, and to turn them over for trial in the ecclesiastical courts. The statute did not pass parliament, though, so never became law. Writing in the sixteenth century, John Foxe claimed the House of Commons refused to pass the statute; The Statutes at Large similarly recorded it was ‘Not a statute’ for this reason.9

Though the statute did not take force as law, it performed a crucial function for the history of heresy law, rhetorically framing heresy in a manner that persisted in subsequent legislation through to the mid-sixteenth century, and forming a crucial background to the Restoration King’s Bench’s work. The statute claimed that two estates, spiritual and temporal, co-existed in the realm. Heresy was cast as a threat first to the ‘spiritual’ estate of the realm, defined in the statute as the ‘christian faith’ and ‘souls of the people’. Second, it was a threat to the realm’s ‘temporal’ estate, for heretics threatened the ‘destruction of the laws’ to ‘the great peril… of all the realm’.10 Importantly, the statute gave full jurisdiction of the offence to the ecclesiastical

5 John Coffey, Persecution and Toleration in Protestant England, 1558-1689 (Edinburgh: Pearson Education Limited, 2000), 78. 6 F. W. Maitland, Roman Canon Law in the Church of England (London: Methuen & Co., 1898), Chapter 6; Cromartie and Skinner, ‘General Introduction’, xlvi. 7 ‘Richard II, 1382: Sheriffs commissioned to apprehend preachers of heresy’, in Danby Pickering, ed., The Statutes at Large: Volume 2 (Cambridge: 1762), 251-2, at 251. 8 For an example of Lollard doctrine, see H. S. Cronin, ‘The Twelve Conclusions of the Lollards’, English Historical Review 22:86 (1907), 292-304. 9 John Foxe, The Acts and Monuments of John Foxe: Volume 3 (London: 1843-9), 37-9; ‘Richard II, 1382: Sheriffs commissioned to apprehend preachers of heresy’, 251. 10 ‘Richard II, 1382: Sheriffs commissioned to apprehend preachers of heresy’, 251-2. 146 courts; it was an offence spiritual and temporal, and the ecclesiastical courts had stakes in both estates.

The first statute against heresy was finally passed in 1400. In the wake of the execution of the Lollard William Sawtre earlier in the year, Henry IV successfully legislated heresy as an ecclesiastical offence. The main purpose of the legislation appears to have been to simplify the process by which heretics could be tried and executed. Sawtre had been tried in an ecclesiastical court that, having convicted him, was required to seek a writ de heretico comburendo (for the burning of heretics) from the Court of Chancery, which empowered the Church court to turn Sawtre over to a sheriff for his execution. In Anthony Fitzherbert’s sixteenth century account of the writ, it was intended for heretics already once convicted who ‘if he Relapse into that Heresie or any other’, would be delivered to the ‘Secular Power’ to be burned to death.11 The writ meant that Chancery oversaw such punishments, though even where a writ was granted, the king retained a right to pardon.

Henry IV’s statute removed this need to involve Chancery: if a heretic was twice convicted, no writ was needed to hand her or him to the sheriff for execution.12 Although the statute did not use the terms ‘temporal’ and ‘spiritual’, as Richard II’s attempted statute had, it defined heresy in near identical terms. Heresy was a danger to the ‘faith and doctrine of the holy church’ and threatened ‘sedition and insurrection’.13 The lesser punishments listed for heretics reflected a concern with the protection of faith, not the redress of temporal damage: heretics were to be ‘canonically purge[d]’ to rid them of their heretical beliefs.14 Only if this attempted purgation failed would a heretic be referred to a sheriff to pay a fine or, if her or his heresy constituted a second offence, be burned to death.

An attempted Lollard insurgency drove Henry V’s further legislating on heresy in 1414. His response largely sustained existing law but added that heretics would lose their personal property upon conviction. More relevant to our purposes, his statute sustained the language of spiritual and temporal threat: for heresy threatened to ‘subvert the christian faith, and the law

11 Anthony Fitzherbert, The New Natura Brevium, of the Most Reverend Judge Mr Anthony Fitz-herbert (London: 1652), 667. 12 ‘Henry IV, 1400: The orthodoxy of the faith of the Church of England asserted’, in The Statutes at Large: Volume 2, 415-8, at 415. 13 Ibid. 14 Ibid., 417. 147 of God… and also to destroy the same our sovereign lord the King’.15 This legislative phalanx of statutes remained until 1534, in the wake of Henry VIII’s split with Rome. The breach with the Papacy did not bring about a substantive redefinition of heresy; rather than a redefinition to cast Catholicism as heretical, stalwart Catholics were typically tried for treason for defending papal supremacy. Henry VIII instead affirmed the statutes of Henry V and Richard II, finally rendering the proposed 1382 statute law, but repealed Henry IV’s statute.16 The principal effect of this measure, appreciable in a context in which the king was now formally the legal head of the Church of England, was that it brought the ecclesiastical courts under greater oversight: a writ de heretico comburendo was once more required of Chancery to send heretics for execution.

From here, heresy law became increasingly unstable. In 1547, Edward VI repealed all legislation against heresy on the grounds that the dangers it existed to suppress, ‘the insolency and unruliness of men’, no longer existed, rendering it superfluous.17 Importantly, this did not end the ecclesiastical jurisdiction over heresy, which continued, now without statutory grounding: at least two heretics were executed during Edward’s reign.18 In 1553 the Catholic Queen Mary resuscitated the heresy statutes of her Catholic predecessors Henry IV and V,19 and repealed Henry VIII’s Act of Supremacy (1534) the following year, submitting herself and the Church of England to the authority of the .20 Once more, heresy was defined in statute as both a spiritual and a temporal threat.

Loosened from the requirement to seek writs de heretico comburendo, the Catholic clergy under Mary wielded their jurisdiction ferociously, sending for execution almost 300 heretics.

15 ‘Henry V, 1414: The intent of the hereticks called Lollards’, in Danby Pickering, ed., The Statutes at Large: Volume 3 (Cambridge: 1762), 22-5, at 22. 16 ‘Henry VIII, 1533: A repeal of the statute of 2 H. 4. c. 15.’, in Danby Pickering, ed., The Statutes at Large: Volume 4 (Cambridge: 1763), 278-9. On heresy under Henry VIII, see Craig d’Alton, ‘William Warham and English Heresy Policy after the Fall of Wolsey’, Historical Research, 77 (2004), 337-57. 17 ‘Edward VI, 1547: An act for the repeal of certain statutes concerning treasons and felonies’, in Danby Pickering, ed., The Statutes at Large: Volume 5 (Cambridge: 1763), 259-6, at 259. The Church still produced prayer books espousing its new doctrines, made mandatory in the Acts of Uniformity of 1548 and 1552 (‘Edward VI, 1547: An act for uniformity of service’, in The Statutes at Large: Volume 5, 286-92); ‘Edward VI, 1552: An act for the uniformity of service’, in The Statutes at Large: Volume 5, 349-51). 18 Coffey, Persecution and Toleration in Protestant England, 79. 19 ‘Philip and Mary, 1554: Cap. VI’, in Danby Pickering, ed., The Statutes at Large: Volume 6 (Cambridge: 1763), 32. On the broader context of Marian heresy law, see Paul Cavill, ‘Heresy and Forfeiture in Marian England’, The Historical Journal 56:4 (2013), 879-907. 20 ‘Philip and Mary, 1554: An act repealing all articles and provisions made against the see Apostolick of Rome’, in The Statutes at Large: Volume 6, 34-53. 148

Scholars have tended to attribute this increase in executions to Mary’s religious zealotry.21 But such an explanation is simplistic, and misconstrues the English legal system, for it conflates Mary’s personal religious attitudes with the actions of diocese-based ecclesiastical courts throughout England. In removing the need to apply for a writ de heretico comburendo, the ecclesiastical courts were in fact less subject to oversight; they were more removed from the monarch. The increase in executions is thus better attributed to a zealous Catholic clergy, than to a monarch personally intervening in the ecclesiastical courts, which her own legislation made more difficult for her to do.

The era of legislating upon heresy ended in 1559, when Queen Elizabeth I repealed all earlier heresy statutes. In doing so, she established a new definition of heresy. Where earlier statutes had proffered the vague definition of religious language that threatened both temporal and spiritual estates, Elizabeth provided a significantly sharper definition: ecclesiastical courts were to rely on the Bible, proceedings of the first four ecumenical councils, or proceedings of any other general Church council.22 With this move, the language of spiritual and temporal threat, a language central to statutory heresy since the fourteenth century, disappeared from legislation, as statute law moved towards a more precise understanding of the offence of heresy.

Elizabeth’s Act of Supremacy must be understood as an attempt at diminishing the power of the clergy. Where the Act of Supremacy deployed the language of a spiritual estate, it was to affirm its position beneath the crown: the act was ‘to restore to the crown the ancient jurisdiction over the estate ecclesiastical and spiritual’.23 One upshot for the ecclesiastical courts of the vague language of spiritual and temporal harm had been that it afforded them a definitional latitude in their approach to heresy. Elizabeth’s more tightly defined approach, coupled with the assertion that, although a spiritual estate existed within the realm, it fell under the crown, was thus a diminution of ecclesiastical independence.24 The statute was an assertion that ecclesiastical supremacy was entailed in the monarch’s office.

21 See, for example, John Coffey, Persecution and Toleration in Protestant England, 80. 22 ‘Elizabeth I, 1558: An act to restore to the crown the ancient jurisdiction over the estate ecclesiastical and spiritual’, in The Statutes at Large: Volume 6, 107-17, at 115. 23 Ibid., 107. 24 Henry VIII’s 1534 Act of Supremacy had not included this language (‘Henry VIII, 1534: The King’s grace to be authorized supreme head’, in The Statutes at Large: Volume 4, 312-3). 149

As well as constituting an explicit declaration of the subordinate position of the Church within the English state, the Act of Supremacy also diminished the purported scope of the ecclesiastical courts, through casting the Church’s work as exclusively spiritual. As we have seen, earlier statutes presented heresy as an offence both temporal and spiritual, a formulation that gave the Church courts a purchase in the temporal estate, too. If heresy was no longer considered a threat both spiritual and temporal, the ecclesiastical courts could not claim a stake in both estates of the realm; their work was merely spiritual, and this in turn fell within monarchical purview. As we will now see, though, the Church courts found new opportunities to assert a wide jurisdictional scope within this diminished position. Despite the intensive legislative consideration of heresy and the vigorous attempts to specify it, Church courts in the seventeenth century gave little heed to statute law beyond Elizabeth’s separation of spiritual and temporal, marginalising legislation for their own particular understandings of heresy.

II The rejection by seventeenth century ecclesiastical courts of statutory approaches to heresy reflects the importance of looking beyond legislation to understand early modern English law. Certainly, legislation was a key act of government and no account of the period could be complete without it, but to project from legislation into court practice without studying the latter is mistaken. Not only is this approach methodologically suspect, because it relies on a conflation of making and implementing law, but in this case, misses the fact that the courts were not following statute. Although Elizabeth’s Act of Supremacy sought to explicitly define heresy and asserted the subordination of the spiritual estate to the crown, the ecclesiastical courts gave little regard to these sovereign proclamations. The notion that sovereignty was an exclusive law-making power is thus challenged: if seventeenth century ecclesiastical courts could practice a law developed within these courts themselves, the sovereign could not be the sole law-maker in the realm.

The two most significant heresy trials of the seventeenth century were the 1612 trials of Bartholomew Legate and Edward Wightman, both of whom were convicted and executed; the final heresy executions in England. In these trials, the presiding bishops rejected Elizabethan statute law governing heresy to establish a different test. These bishops cast heresy as an exclusively spiritual threat, but gave no mention of the Elizabethan requirement that heresy consisted in statements contravening the Bible or the claims of Church councils. They claimed only that heresy was constituted by statements dangerous to the spiritual estate; to the souls of 150 the English people. Insofar as this understanding of the ecclesiastical jurisdiction reflected statute, it was an acceptance of Elizabeth’s configuration of the Church as an exclusively spiritual institution. Beyond this slight recognition of statute, though, these courts ignored the Act of Supremacy’s tightly defined approach to heresy to cast it in expansive spiritual terms. In short, though they accepted they were only a spiritual institution, their response was to assert a capacious spiritual jurisdiction; a refusal of subordination.

Legate was a serial heretic, having appeared repeatedly before the ecclesiastical court at St. Paul’s, where he had refused to abjure his heresies. In March 1612, he appeared there again before Bishop John King. Legate had claimed that ‘Christ is not God’, that ‘the world was not made by Christ’, and that ‘Christ was not in the form of God equal with God’.25 Bishop King did not turn to Elizabethan statute law, or even the history of earlier statute law, which had cast heresy as an offence temporal and spiritual. Rather, King cast Legate’s heresy as an exclusively spiritual threat. Legate’s words were heretical for ‘contrary and repugnant to the Catholick faith and religion, and the holy word of God’, as well as threatening to the ‘holy church’.26 The Church and its function in preserving the souls of the English people was the core of its heresy jurisdiction, for King, and it was for the danger to these posed by Legate that King sought a writ de heretico comburendo, awarded by James VI and I via Chancery on 11 March 1612, for Legate’s execution.

In reading King’s sentencing of Legate, it is important that we capture the ways in which he defined the offence of heresy, for this is a necessary background to understand how the Restoration King’s Bench defined its work relative to the ecclesiastical courts. Heresy did not amount to simply the stating of religious falsehoods, but was constituted by the possession of false religious beliefs; it entailed a claim about the mental state of the accused. King thus described Legate as holding ‘false opinions… impious doctrines’ and as being of a ‘plainly incorrigible mind’.27 Legate was offered the chance to abjure his heresies, and when he refused to do so, was condemned by King as maintaining his ‘most dangerous and blasphemous opinions’.28 The focus of the court, in short, was not so much on what Legate had said, but on what it meant for his state of mind; his soul, rather than his speech, was at issue for the court.

25 ‘The Cases of Bartholomew Legatt and Edward Wightman’, in T. B. Howell, ed., A Complete Collection of State Trials: Volume 2 (London: 1816), 727-38, at 731-2. 26 Ibid., 734. 27 Ibid. 28 Ibid., 732. 151

We can see a near-identical understanding of heresy proffered by Bishop Richard Neile in Edward Wightman’s heresy conviction the same year in the church court of the Coventry and Lichfield diocese. This was not Wightman’s first conviction for heresy, nor the first time he had been sentenced to death. In December 1611, he had been convicted by the same court, which had successfully applied for a writ de heretico comburendo. Chained to the stake, with flames rising around him, Wightman had recanted his heresies. The attendees had extinguished the flames and unchained him, only for Wightman to retract his recantation before Neile’s court. In April 1612, he was again convicted for heresy and another writ provided for his execution. In spite of his protests, he was burned to death.29

Like Legate’s, Wightman’s claims had centred on a denial of Christ’s divinity, to which he added an assertion of his own divine status. He had denied the existence of the Holy Trinity and claimed that Christ was ‘not the true natural Son of God’, was ‘only man and a meer creature’, and that ‘God hath ordained and sent [Wightman]… to perform his part in the work of the Salvation of the world’. Wightman had also attacked the Church of England directly, asserting that ‘Christianity is not wholly professed and preached in the Church of England’.30 Like Legate, Wightman was approached not so much as having made heretical claims but as possessed of a heretical mind: the court described his words as evidence of Wightman holding ‘perilous and dangerous’ and ‘damnable and heretical opinions’. Wightman’s offence was defined in exclusively spiritual terms, too, as he was described as a ‘corrupt member… of the flock of Christ’ who needed to be ‘cut off’, lest he ‘should infect others professing the true Christian faith’.31 The threat he posed, as Legate had, was to the souls of the English people.

This approach to ecclesiastical heresy as an exclusively spiritual crime, a breach with statutory definitions of the offence, was not only proffered in these diocese courts, but can also be found in the work of the Court of High Commission in the 1630s. The High Commission was the highest ecclesiastical court until its abolition in 1641,32 led by the serving Archbishop of Canterbury, and a brief overview of heresy trials heard in it reveals a consistency among ecclesiastical approaches to heresy in the early seventeenth century. In October 1631, a High

29 Ian Atherton and David Como, ‘The Burning of Edward Wightman: Puritanism, Prelacy and the Politics of Heresy in Early Modern England’, English Historical Review 120:489 (2005), 1215-50, at 1215-6. 30 ‘The Cases of Bartholomew Legatt and Edward Wightman’, 735. 31 Ibid., 736. 32 ‘Historical Collections: Abstract of Acts in the Long Parliament’. 152

Commission bench led by Archbishop George Abbott of Canterbury, together with five bishops and four ecclesiastical lawyers, tried and convicted a London minister, William Pretty, for heresy.

Accused of being a ‘scismaticall man’,33 Pretty had preached that a Christian ‘ought not to be sorrowful for his sinnes… though he sinne foulely’ as ‘all the effects of sinne are taken away from the believers’. All that was required for salvation was belief, for it was this, not one’s behaviour, that made one ‘righteous’.34 In similar terms to King and Neile, Abbott and his colleagues defined Pretty’s heresy as a purely spiritual threat. His ‘erroneous opinions’ threatened religion’s existence, and the High Commission claimed that they caused ‘great evills… to the Church of God’. Moreover, like Wightman and Legate, Pretty’s offence was not foremost that he had spoken heretical words.

Rather, he was convicted as his words evidenced heretical beliefs. Pretty was condemned for holding ‘poysonous’ and ‘ungodly’ opinions, and was imprisoned and removed from ministerial office.35 Indeed, Pretty’s trial focused on the fact that he had not only proclaimed his ‘schismaticall’ views from the pulpit, but had repeated them ‘in private conference with another minister’.36 The court, in other words, was interested not so much in the fact he had enunciated heretical views at all but that he had done so repeatedly, reflecting a belief. Again, that is, the soul of the heretic, rather than his actions, was the court’s focus.

The heresy trial of William Slater that same year by the High Commission shows further consistency with the spiritual focus of these other Church court cases, particularly in the administration of Slater’s punishment. Slater had added a heretical image to a translation of Psalms that he had produced, described by Abbott and the other ecclesiastical judges as a ‘disgrace of religion’. Slater was imprisoned, but released upon claiming he was ‘heartily sorrie’ and asking forgiveness from God and the Church of England.37 We can see the focus of the court here: Slater’s punishment was relative to his abjuration, as the spiritual reform he effected through recanting his heresies and asking forgiveness satisfied the court. Further, he

33 ‘The Case against Samuel Pretty, clark’, in Samuel Rawson Gardiner, ed., Reports of Cases in the Courts of Star Chamber and High Commission (London: Camden Society, 1886), 181-6, at 181. 34 ‘The Case against Samuel Pretty, clark’, 182. 35 Ibid., 184-5. 36 Ibid., 182-3. 37 ‘William Slater, Doctor of Divinity’, in Reports of Cases in the Courts of Star Chamber and High Commission, 186-8, at 186. 153 was not required to pay fines or provide financial sureties for his behaviour: the court did not seek to enforce particular behaviour or demand redress from him. Slater’s trial is consistent in this way with those of Legate and Wightman, who were also offered chances to abjure their heresies, and only executed when they refused to do so. Here, Slater abjured, and was released by the court.

In short, by the 1630s, ecclesiastical court practice had diverged from statute law. The governance of heresy was no longer managed by sovereign dictate, as from diocese courts in London and Coventry and Lichfield to the Court of High Commission itself, the ecclesiastical courts propounded an understanding of heresy law in clear breach with any statutory approach to the offence. Where statutes until 1559 had emphasised that heresy was a threat both spiritual and temporal, and Elizabethan heresy was defined through reference to the Bible and Church councils while affirming the monarch’s supremacy over ecclesiastical law, these courts consistently cast heresy as an exclusively spiritual danger. The heresies of Legate, Wightman, Pretty, and Slater were dangers to the souls of the English, threats to religious belief, and the work of the Church of England. This danger was due to the corruption within the souls of these heretics, for the Church courts did not focus exclusively on the words spoken, but the heretics’ beliefs as evidenced by their words. The central concern was at the level of the spiritual: a concern with the holding of beliefs dangerous to one’s salvation, remediable through abjuration.

In so approaching heresy law, these courts acknowledged Elizabeth’s assertion that the Church’s province was spiritual matters, but they refused to take direction in this area; their scope was diminished, but they were not subordinate. In 1633, though, William Laud ascended to the archbishopric and asserted a sharply divergent interpretation of the Church position. In particular, Laud defended the ecclesiastical supremacy of the king, and denied the doctrine of two estates.38 For Laud, it constituted an unacceptably Catholic granting of independence to Church and state, which he saw as united in Charles I.39 At the same time, though, he cast episcopal authority in the Church as a divine right. Though Laud did not himself wield this argument to restrict monarchical supremacy, Jeffrey Collins has argued that it provided the seeds from which the Restoration clergy would develop a defence of ecclesiastical

38 Collins, ‘The Restoration Bishops and the Royal Supremacy’, 552-5. 39 Ibid., 553. 154 independence.40 In Section IV of this chapter, we will investigate the ways in which the Restoration Church positioned itself relative to the monarch from these pre-Restoration resources.

III In 1641, as tensions between parliament and Charles I threatened to spill the country into civil war, Elizabeth’s Act of Supremacy was repealed, dissolving statutory heresy.41 The immediate effect on the Church courts was limited. As we have seen, ecclesiastical courts were already ignoring statutory heresy, and their jurisdiction survived this legislative dissolution. But in 1646, the ecclesiastical courts themselves were abolished as part of the Long Parliament’s abolition of the bishoprics of England.42 The ecclesiastical jurisdiction of heresy had, for the time being, been eradicated. But the tensions over the status of religion, and the rhetoric of distinct temporal and spiritual estates, continued to animate law. Two years later Presbyterian MPs led a drive to legislate once more against religious slurs, creating the ‘Ordinance for the punishing of Blasphemies and Heresies’, which rendered heresy a criminal offence.43

This legislation rendered it felonious to utter or publish a range of slurs against God, Christ, and the Bible. In doing so, it came closest to the Elizabethan approach to heresy, eschewing the opaque language of spiritual and temporal offence to instead set out explicit cases of heretical language. The punitive focus of the statute resembled what was considered spiritual in earlier heresy legislation and the ecclesiastical courts: abjuration would allow offenders to escape physical punishment, and only relapse after abjuration could result in execution. Where the statute most clearly broke with the earlier approaches of Church courts, though, was in its discussion of the heretic. There was no reference to the heretic as one holding particular beliefs or opinions – the statute did not explicitly target the soul of the accused – but principally took issue with the words in use.44

Following Charles I’s execution in January 1649, the Rump Parliament moved new legislation against blasphemy and atheism in 1650, marking a return to a language of spiritual and

40 Ibid., 554-5. 41 ‘Historical Collections: Abstract of Acts in the Long Parliament’. 42 ‘October 1646: An Ordinance for the abolishing of Archbishops and Bishops’. 43 ‘May 1648: An Ordinance for the punishing of Blasphemies and Heresies’, in Acts and Ordinances of the Interregnum, 1133-6. 44 Ibid. 155 temporal threat. Importantly, though it cast these offences as both spiritual and temporal, the House of Commons gave particular emphasis to their temporal dimensions.45 The new statute was more lenient than its predecessor, for the claims of Socinians, Baptists, and Arminians, which were targets of the 1648 statute, were no longer deemed heretical. Rather, the new legislation focused in particular on denials of God’s existence; atheism was a novel legislative concern. The legislation was justified by Rump MPs on the claim to have discovered many men and women ‘most monstrous in their Opinions, and loose in all wicked and abominable Practices’. We encounter in this statute a similar vocabulary to that used in the pre-Elizabethan statutes. Atheism and blasphemy were defined first as a spiritual threat to God and religion, which the statute would prevent through its propagation of the and by ensuring that God was ‘truly glorified’, and second in temporal terms as threatening ‘the dissolution of all Humane Society’.46

Crucially, this legislation distinguished between belief and action, a new distinction no previous legislation or ecclesiastical court practice had suggested. The statute permitted ‘liberty… in matters of Conscience’, but precluded certain statements, such as to deny the existence of God.47 In other words, where Church courts had explicitly taken their focus to be the soul of the heretic, through their beliefs or opinions, the Rump Parliament separated the beliefs of blasphemers and atheists, which they treated as beyond the purview of the law, from their statements, which were justiciable. A corollary of this distinction between speech and conscience, the statute did not seek to govern the souls of the accused.

Where Church courts and earlier legislation had required abjuration – the spiritual reform of the heretic in order to ensure their salvation – the Rump Parliament commanded that those convicted be imprisoned for six months before being required to pay sureties for good behaviour for a year. In the event that they re-offended, they would be banished from England and would be tried as a felon should they attempt to return.48 It should be noted that William Slater, too, was imprisoned by the Court of High Commission, but released upon asking forgiveness for his heresies. No such relief was available to convicted blasphemers and atheists

45 The Lords was abolished in January 1649: ‘An Act for Abolishing the House of Peers’, in The Parliamentary or Constitutional History of England: Volume 19 (London: 1763), 62-3. 46 ‘August 1650: An Act against several Atheistical, Blasphemous and Execrable Opinions’, in Acts and Ordinances of the Interregnum, 409-12. 47 Ibid. 48 Ibid. 156 imprisoned under this statute. The temporal focus of the punishment meant this new legislation offered a re-orientation of religious slurs, casting these offences as dangerous statements that needed to be prevented through the management of outward behaviours, not seen as evidence of a corrupt soul in need of reform.

Like the 1648 statute against blasphemy and heresy, this 1650 legislation was short-lived, although there is no record of its repeal. It was certainly not in force by 1656, when House of Commons MPs tried the Quaker James Nayler in one of the most prominent blasphemy trials of the Interregnum.49 Although the House of Commons rarely heard cases, it had a formal jurisdiction as the highest court of appeal from common law courts. Presiding over the case, the Lord Commissioner, Bulstrode Whitelocke, noted in particular that neither the 1648 legislation nor ‘any other law’ was in place at the time of Nayler’s trial.50 Despite Whitelocke’s claim to have no legislative precedent to guide him, he sustained the language most consistent with legislative approaches to such offences, deploying a rhetoric of dual estates in casting Nayler’s threat as one both spiritual and temporal.

Nayler had led a small Quaker sect, which had referred to him with various epithets deemed blasphemous at his trial, such as ‘the Prince of Peace’ and ‘the only begotten Son of God’. Having been briefly imprisoned in Exeter in 1656 for vagabondry, upon his release, Nayler travelled to with a group of followers, entering the town on horseback, with at least one woman leading his horse, while other followers laid handkerchiefs on the ground before him and chanted religious phrases. The Bristol sheriff recognised the clearly intended parallels between Nayler’s entry into Bristol and the Biblical account of Christ riding into Jerusalem and arrested him. Nayler was thereafter transferred to the House of Commons, where he was charged with blasphemy for accepting religious worship and for taking titles belonging to Christ.51

When questioned by MPs about his behaviour, Nayler claimed that he was performing God’s will: he had entered Bristol in such dramatic fashion as ‘he may not refuse any thing that is

49 On Quaker persecution, see David Manning, ‘Accusations of Blasphemy in English Anti-Quaker Polemic’, Quaker Studies 14:1 (2009), 27-56. 50 ‘Proceedings in the House of Commons against James Nayler’, in T. B. Howell, ed., Cobbett’s Complete Collection of State Trials: Volume 5 (London: 1810), 801-42, at 825. 51 Ibid., 801. 157 moved of the Lord’.52 Throughout his interrogation, Nayler made many similar statements, insisting that God was inside him and claiming that ‘I have no kingdom in this world, yet a kingdom I have’.53 He was convicted of blasphemy on 8 December 1656.54 Without a legislative guide to determine punishment, the Commons voted on his execution, the proposal ultimately defeated by ninety-six votes to eighty-two. On 16 December it was resolved that Nayler would be placed in the pillory at Westminster with a paper attached to his head detailing his crimes, whipped, branded on his forehand with the letter ‘B’, and would have his tongue bored through ‘with a hot iron’ before being imprisoned.55

The crucial component of the judgment came in Whitelocke’s explanation of the reasons against execution. In discussing the need for alternative punishments, Whitelocke invoked the language of temporal and spiritual threat: Nayler’s punishment was necessary ‘for the being and preservation of the people and ’, and for his violation of the ‘law of God’.56 Distinguishing the particular offence for which Nayler was guilty, Whitelocke explained that Nayler was a blasphemer, but his blasphemy had not extended to atheism – he had not denied God’s existence – so execution was unnecessary.57 Nor was he a heretic, for this entailed the declaration of an erroneous religious opinion, whereas blasphemy consisted of ‘reviling the name and honour of God’.58

The Civil Wars and Interregnum period thus offered both continuities and divergences with earlier law, statutory and ecclesiastical, against religious nonconformity. We encounter in these years the emergence of statutory blasphemy and atheism, replacing the legislative and ecclesiastical emphasis on the offence of heresy. In the 1648 statute, this new offence resembled heresy in terms of the punishments provided: abjuration, rather than temporal redress, was the focus. The 1650 statute cast blasphemy and atheism as offences both spiritual and temporal but provided two significant novelties in its especial emphasis on their temporal effects. First, it created a division between conscience and speech, separating the soul and actions of blasphemers, the former of which was outside the law’s purview.

52 Ibid., 806. 53 Ibid., 808-10. 54 Ibid., 816. 55 Ibid., 817-8. 56 Ibid., 821-2. 57 Ibid., 821. 58 Ibid., 826. 158

Second, the statute prescribed temporal redress through its punishments, imprisoning and demanding sureties for behaviour. Consistent with the separation of soul and speech in the statute’s definition of blasphemy, the soul was irrelevant to punishment under it; only the curbing of behaviour through redress and prevention was the focus of the law. Nayler’s blasphemy trial in the House of Commons, six years later, repeated the 1650 statute’s emphasis on the simultaneous temporal and spiritual components of the offence of blasphemy. The punishment was less consistent, though. Nayler was given options to abjure throughout his trial, which he refused, but his pillorying reflects perhaps a temporal concern: the humiliation of the accused as a disincentive for future blasphemers. In particular, we see in these years a condemnation of Laud, whose controversial reign as Archbishop had animated the antagonism that brought about civil war. Not only was his Church disestablished, but his understanding of the place of religion within the state was condemned: rather than a unified state, an account of estates temporal and spiritual re-emerged.

IV The history of legislative approaches to religious nonconformity becomes further complicated in the Restoration. Importantly, with Charles’s enthronement, England was once more governed by a ruler that common lawyers like Hale recognised as sovereign. We can capture, then, in Charles’s and James’s statements on the Church of England and its work, and in the legislation passed by Charles, James, and the Restoration parliaments, the language of religion and religious conformity as proffered by that office recognised widely as sovereign. In assessing how the judiciary engaged with these statements and statutes, we can thus assess the degree to which they treated their office as subordinate to sovereignty. As we will see, this Restoration sovereign commentary had similarities with that of the Interregnum Commons. In particular, the language of spiritual and temporal threat remained, though with an increasing emphasis towards the latter over the former.

As we have seen, the period up to the Civil Wars was defined by a tension over whether there were distinct spiritual and temporal estates within the English realm, and the Church’s position within the realm relative to these estates and the crown. Heresy law up to 1559 had divided the realm into spiritual and temporal estates, and treated the Church as possessed of a stake in both through a wide jurisdictional scope to define heresy. The Act of Supremacy had cast the Church’s position as exclusively spiritual, and had positioned it beneath the office of monarch. Seventeenth-century Church courts had accepted a spiritual jurisdiction, but denied 159 subordination, operating a legal system that rejected legislative accounts of heresy. This was in turn rejected by Laud, the last Archbishop of Canterbury prior to the Civil Wars, who argued against a division of spiritual and temporal, and for the Church’s subordination to the crown. The Interregnum featured a return of the rhetoric of dual estates, but without Church courts; without a distinct jurisdiction for the spiritual.

Restoration legislation embodied this tension. Parliament, of course, brought together a range of religious partisans among the MPs, as well as the bishops of the Church of England, who sat in the House of Lords. The legislative process thus brought together multiple groups with competing views of the Restoration Church settlement. Indeed, in Chapter 2 we saw that even within the Church there was competition over how to understand its position in the Restoration. While some clergy defended the monarch’s supremacy, arguing that his office arose from divine right, others claimed an independent authority for the clergy, claiming an exclusive ability to interpret God’s will.

As Collins shows, this latter argument for the independence of the Church was especially common among the clergy in the Restoration, a defence against the resuscitation of the Act of Supremacy.59 Most notably, the Restoration clergy increasingly defended their divine right to govern the Church.60 In Collins’s account, the Restoration clergy did so by drawing in particular on a marginal component of Laud’s rhetoric. Laud had argued episcopal authority was from divine right, and the Restoration clergy extended this claim in a way that he had not to argue for a qualified royal supremacy. As a member of the laity, the king had a limited position in ecclesiastical matters, not a supreme authority over them.61 The key point here is that the drive to assert an ecclesiastical independence from the crown centred on an affirmation of the doctrine of two estates: the king’s office was temporal; the Church’s spiritual.62 In the Restoration, this division became central to the defences of the clergy against sovereign encroachment, for it provided a means by which the Church of England could defend an independence from the monarch.

59 ‘Charles II, 1661: An act for explanation of a clause contained in an act of parliament made in the seventeenth year of the late King Charles’, in Danby Pickering, ed., The Statutes at Large: Volume 8 (Cambridge: 1763), 20- 2. 60 Collins, ‘The Restoration Bishops and the Royal Supremacy’, 560-5. 61 Ibid., 563. 62 Ibid., 566. 160

Though Collins is certainly correct to recognise the deployment of arguments for a unique spiritual authority among the Restoration clergy, his attribution to Laud as the likely source of these arguments is flawed. For as we saw in Section II of this chapter, Archbishop Abbott as well as other members of the early seventeenth-century clergy had argued for an exclusively spiritual jurisdiction for the Church. In short, an independent ecclesiastical sphere had been defended throughout the early seventeenth century by bishops seeking to deny subordination to the king. That members of the Restoration Church similarly asserted an independence from Charles II on the basis of a division between temporal and spiritual suggests that it was not a point marginal within Laud’s rhetoric that they were building on, but these earlier explicit claims for clerical independence.

Importantly, it was through the register of office that the clergy sought to limit the king’s ecclesiastical powers. The king’s office was not ecclesiastical: Bishop Benjamin Laney described him as ‘not… an Ecclesiastical Person’,63 while Bishop Robert Sanderson listed the ecclesiastical powers outside the purview of monarchical office.64 In many ways, the argument of these bishops resembles that of common lawyers like Coke and Hale, who argued that although he was sovereign, the king’s lack of legal training precluded his legal oversight. Here, we see the Restoration clergy arguing that as the king was not an initiate to religious training, his office was similarly unqualified with respect to religion.

Charles II’s first statement on matters of religious conformity came prior to his coronation, in the form of his April 1660 Declaration of . Though Clark does not read the Declaration in terms of the longer history of spiritual and temporal language, he is right to see the Declaration as a statement of opposition to an empowered Church of England.65 The Declaration featured two key claims, which offer some explanation for the Church’s desire to emphasise its independence from the crown. First, Charles claimed his ‘Right’ to the crown was by ‘Divine Providence’, and he prayed that he be put ‘into a quiet and Peaceable Possession, of that our Right’.66 Charles’s grandfather, James VI and I, had defended his own office in these terms, asserting his divinely willed capacity to legislate unhindered.

63 Benjamin Laney, Five Sermons Preached before his Majesty at Whitehall (London: 1669), 137. 64 Robert Sanderson, Episcopacy (As Established by Law in England) not Prejudicial to Regal Power (London: 1661), 27. 65 Clark, English Society 1660-1832, 60. 66 Charles II, King Charls II. His Declaration to all his Loving Subjects of the Kingdome of England (London: 1660), 3. 161

Second, having asserted his divine kingship, Charles sought to exercise it in a matter that offered a diminished role for the Church of England. He claimed, in rhetoric close to the 1650 blasphemy statute, that in the wake of the multiplication of religious positions in the Interregnum, he would permit a ‘liberty to tender ’ in which ‘no man shall be disquieted or called in question for differences of opinion in matters of Religion’. The limitation of this liberty, though, was if these opinions ‘disturb the Peace of the Kingdom’.67 In other words, religious liberty was permissible to the degree that it did not create a temporal threat; a threat to the kingdom’s peace. Of no concern was the status of the souls of those with widely varied religious opinions. Only the effects these opinions might have on the realm’s safety was at issue.

For the Church, this argument was austere. Charles’s invocation of divine right asserted that he took his authority from God, a claim that placed him above the Church, and his further claim that religion would only be policed insofar as it diminished the peace rendered irrelevant matters of salvation. By God’s will Charles ruled over ecclesiastical matters, and these were juridically relevant only in cases where the realm was in danger. His Declaration left it unclear whether it would be ecclesiastical or common law courts that would act in these cases, but in either case, the scope of authority for the Church of England was slight. In this context, we can see why the Church increasingly defended dual spheres of authority. Such a defence countered Charles’s claim of divine right with a claim of the Church’s own divine providence, and suggested that although religion may need policing for temporal ends, its spiritual quality also necessitated juridification, in which ecclesiastical expertise must prevail.

Though the Lords were not yet assembled at the time of the Declaration, we can get a sense of the religious tensions it inspired if we turn to the response of the Commons, which is hard to read as anything but a stern rebuke of Charles’s approach to religious affairs. Where Charles had attempted to cast nonconformity as a matter for law only insofar as it affected the peace of the realm, the Commons turned his definitional scheme upon him. The execution of Charles I, they claimed, was an ‘Offence to all the Protestant Churches abroad, and a Scandal to the Profession of the Truth of Religion here at home’.68

67 Ibid., 5. 68 ‘The Convention Parliament: First session - begins 25/4/1660’, in The History and Proceedings of the House of Commons: Volume 1 (London: 1742), 2-25. 162

The safety of the king, in short, was a spiritual concern. If the peace of the kingdom was itself a spiritual matter, then religious nonconformity could not be permitted to the extent that it did not disturb the peace, for it was an inherent danger to the peace. Religious liberty was dangerous spiritually – an affront to true religion – and this spiritual danger risked temporal danger, a response which defended a wide scope of Church action. Consistent with this subsuming of temporal by spiritual that enabled the Commons to present the upkeep of faith as necessary to the realm’s safety, the Commons noted the dangers of Papists and ‘misguided Professors of the Protestant Religion’. Though the Commons claimed to ‘enlarge our Praise and our Prayers’ given their pleasure at the king’s ‘unshaken… Faith’,69 the implication is clear: Charles’s tolerant attitudes had left them concerned regarding his own religious commitment.

Charles’s October 1660 Worcester House Declaration bore out similar tensions. He opened with a rebuke to the Commons and other critics of his Breda declaration, defending his particular expertise in religious matters: he was ‘more competent’ on this matter for his time spent in exile in ‘the reformed churches abroad’.70 For all his expertise, he had not been ‘so candidly dealt with as we have deserved’.71 The Worcester House Declaration emphasised Charles’s dedication to the Church and to conformity: he approved of a set liturgy and episcopacy.72 At the same time, though, he asserted his ecclesiastical supremacy: the Church was ‘always subordinate and subject’ to his authority,73 and its actions were contingent on permission from the ‘sovereign power’.74

Charles remained committed to a range of religious liberties, including regarding the wearing of the surplice, and the taking of an oath of canonical obedience, in line with his earlier claims that liberty of conscience ought only to be infringed in exceptional cases.75 And he continued to emphasise the temporal dimensions of religious conformity. Conformity was not relevant, as the Commons had claimed, principally to defend religious truth, for the law was not

69 Ibid. 70 Charles II, ‘Worcester House Declaration’, in Andrew Browning, ed., English Historical Documents: Volume 6 (London: Routledge, 1995), 357-62, at 357. 71 Ibid., 358. 72 Ibid. 73 Ibid., 359. 74 Ibid., 361. 75 Ibid. 163 principally interested in matters of salvation. Rather, religion was the ‘best means to contain the minds of men within the rules of government’.76 Both Charles and the Commons were defending a confessional regime, but their emphases were on opposing points: upholding government, for Charles; upholding true faith, for the Commons. These differences were obvious to the opposing parties: the Declaration was defeated in the Commons on 28 November 1660.77

An attempted uprising by Fifth Monarchists the same year only exacerbated the concerns around religious liberties, leading Charles to issue a royal proclamation on 10 January 1661, banning ‘seditious meetings and conventicles under pretence of religious worship’.78 Over time, king and parliament together passed a succession of statutes restricting religious nonconformity that came to be known as the Clarendon Code. Importantly, this reconciliation of monarch and parliament did not do away with the tensions of 1660, and we can see different emphases in different statutes between temporal and spiritual concerns in the establishment of a legislatively confessionalised England. The point is not that Restoration England was not a confessional state, for it certainly was. The argument advanced here is that this confessionalisation, even in its legislative form, was unstable, reflecting an inability to clearly reconcile the division between statute law and ecclesiastical practice that had emerged prior to the Civil Wars.

The 1661 ‘Act for the well Governing and Regulating of Corporations’ was the first of these legislative initiatives.79 The statute required holders of municipal offices to take oaths of allegiance and to take the Sacrament according to the practices of the Church of England. In the framing material, the statute was presented as ensuring ‘Publique Peace both in Church and State’.80 We can see clearly the legislative success here of a notion of dual spheres. Charles had argued that the English state was hierarchically shaped with the king at its peak; ecclesiastical power was subordinate to sovereign power. Further, he had suggested that religion offered a means by which the government could be upheld; the Church supported the state. The Corporations Act, though, presented Church and state as distinct. As in the early

76 Ibid., 359. 77 ‘HCJ Volume 8: 28 November 1660’, in JHC: Volume 8 (London: 1802), 194. 78 ‘Charles II – volume 28: January 1-22, 1661’, in Mary Anne Everett Green, ed., Calendar of State Papers Domestic: Charles II, 1660-1, 465-82. 79 ‘Charles II, 1661: An Act for the well Governing and Regulating of Corporations’. 80 Ibid. 164 heresy statutes, we encounter an emphasis on distinct temporal and spiritual estates, here deployed against Charles’s approach, which had treated religion as a juridical matter only insofar as it was a temporal concern.

This rhetorical framing was only intensified the following year with the Act of Uniformity. More explicitly than the Corporations Act, the Act of Uniformity endorsed the Church’s position of two distinct estates within the realm. It did so by invoking the rhetoric of dual spiritual and temporal threat that we encountered throughout the history of heresy law; nonconformity threatened both estates of the realm and was a juridical concern because of this. The statute sought to ensure conformity through, inter alia, the mandating of a Book of Common Prayer to guide national worship. Such conformity, the introductory material to the statute claimed, was conducive to ‘settling the Peace of the Nation’ – a temporal concern – but was also necessary as inconsistency in worship was ‘to the hazard of many souls’, a clear spiritual matter.81

The same year as king and parliament passed the Act of Uniformity, they also passed the Quaker Act, which offered a very different framing to religious nonconformity. This statute imposed punishments ranging from fines to transportation – being sent to work in a colony – on those who refused to swear oaths of allegiance to Charles or who took part in meetings attended by five or more other Quakers. Though Quaker nonconformity was cast as an ‘Opinio[n]’ – was described not only as a behaviour but as a belief, a matter of conscience – we can see that these punishments had no salvific intention; they were intended to redress damage, disincentivise nonconformity, or render it impossible. In other words, rather than attempting to reform the souls of the Quakers, the Act focused on restricting their behaviour. And the broader language of the statute shows why: Quakerism was not framed as a danger to the souls of the English, but in exclusively temporal terms. Quakers were ‘endangering of the Publick Peace and Safety’ and ‘terror[ised]… the People.82

This framing of Quakerism as an exclusively temporal threat shows the danger to the Church of its adherence to a doctrine of dual estates. For if the Church defended an independent role in the realm through specifying for itself a unique jurisdiction on spiritual matters, then the

81 ‘Charles II, 1662: An Act for the Uniformity of Publique Prayers’. 82 ‘Charles II, 1662: An Act for preventing the Mischeifs and Dangers that may arise by certaine Persons called Quakers’. 165 implication was that it accepted it had no place in temporal matters. The risk this opened up was that if a religious matter could be framed in exclusively temporal terms, then it fell outside the Church’s self-described scope, and the Church could claim no jurisdiction. An available move for those who sought to diminish the Church was thus to approach religion as a temporal danger, which left it as a matter for the common law courts.

In many ways, the Quaker Act appears similar to Charles’s Breda Declaration, which had claimed religious matters required policing only insofar as they became a temporal threat. The , though, had suggested that religion need only be policed in exceptional circumstances. But the Quaker Act was one of three statutes, alongside the Corporations Act and Act of Uniformity, all of which at least in-part used the language of temporal danger to justify the policing of nonconformity. It formed part of an increasingly wide-ranging legislative blockade against religious nonconformity. Indeed, Charles opposed all three statutes, requesting their repeal. That he had to do so gives us a sense of his marginalisation within the legislative process; he was a bit-player in the making of law.

On 26 December 1662, Charles requested that parliament repeal those laws against nonconformity preventing dissenting Protestant and Catholic worship. Charles drew inference to the Civil Wars in his defence of repeal: he would rather not again see ‘blood… shed for religion’.83 This argument relied on an inversion of the rhetoric of the legislation passed by the Lords and Commons with the king’s support. For the statutes had framed nonconformity, as well as a spiritual threat, as a temporal threat to the state for its endangerment of peace. In response, Charles inverted the problem: it was in fact the policing of nonconformity that would disturb the peace.

The Lords and Commons responded to the king’s pleas with a refusal to repeal, and an intensification of the policing of nonconformity. In 1664, they passed ‘An Act to prevent and suppresse seditious Conventicles’.84 If Charles was not victorious in having the statutory prohibitions against nonconformity repealed, nonconformity was increasingly cast in exclusively temporal terms, as these new statutes articulated no concern with salvific matters.

83 ‘Charles II – volume 65: December 16-31, 1662’, in Mary Anne Everett Green, ed., Calendar of State Papers Domestic: Charles II, 1661-2 (London: Longman, 1861), 592-609. 84 ‘Charles II, 1664: An Act to prevent and suppresse seditious Conventicles’. This act expired in 1669, and a new act using identical language, through prescribing harsher punishments, was passed in 1670: ‘Charles II, 1670: An Act to prevent and suppresse Seditious Conventicles’. 166

As the Church increasingly defended their spiritual jurisdiction, this jurisdiction shrunk, as matters of conformity were repeatedly described as belonging to the temporal powers. The Conventicle Act rendered it illegal to convene a service of worship involving five or more people without following ‘the Liturgy or practise of the Church of England’, in an attempt to address the ‘growing and dangerous Practises of Seditious Sectaryes and other disloyall persons’.85 The following year, the Five Mile Act prevented nonconforming preachers from coming within five miles of their former parish out of a concern that such preachers would spread ‘poysonous Principles of Schisme and Rebellion’.86

Emboldened by the secret Treaty of Dover in 1670, which ensured that he would receive financial subsidies from France for England’s entry into the war against the Dutch Republic, Charles issued a Royal Declaration of Indulgence in March 1672. The Declaration suspended the laws against religious nonconformity, permitting a degree of Catholic and nonconforming Protestant worship.87 Restrictions remained regarding the establishment of places of worship: for nonconforming Protestants, Charles would licence places of worship; for Catholics, no places of worship were permitted.88 Charles opened the Declaration with a defensive manoeuvre: a justification of his support for the Church in an attempt to allay fears that the Declaration was an assault on its power. He claimed his ‘care and endeavours for the preservation of the rights and interests of the Church have been sufficiently manifested’. Given this support, Charles explained that he was suspending the laws governing conformity not on doctrinal grounds, but for their lack of success: ‘there is very little fruit of all those forcible courses’. In doing so, he asserted his ecclesiastical supremacy – his ‘supreme power in ecclesiastical matters’ – that enabled him to make such law alone.89

As he had especially in the Declaration of Breda, Charles’s Royal Declaration of Indulgence advanced an account of religious policing in which nonconforming Protestant and Catholic worship was to be governed only insofar as it gave rise to ‘disorders and inconveniencies’.90 In other words, such forms of worship were subject to regulation only insofar as they caused a temporal threat. The Declaration of Indulgence thus presented a steep diminution of the

85 ‘Charles II, 1664: An Act to prevent and suppresse seditious Conventicles’. 86 ‘Charles II, 1665: An Act for restraining Non-Conformists from inhabiting in Corporations’. 87 Regarding the Treaty of Dover, see Ronald Hutton, ‘The Making of the Secret Treaty of Dover, 1668-1670’, Historical Journal 29:2 (1986), 297-318. 88 Charles II, ‘Declaration of Indulgence, 1672’, in English Historical Documents: Volume 6, 378-9. 89 Ibid., 378. 90 Ibid., 379. 167

Church’s position, for under its terms, the Church no longer had a monopoly on worship; conformity with its dictates was ended. The Church was the largest, but not the only, religious authority in England. Indeed, under the terms of the Declaration, 1,610 preachers took out licenses to preach, a rapid expansion in the sources of religious authority.91

Charles’s move here was clever: the preceding statutes on nonconformity had treated its threat as exclusively temporal, and he offered no challenge to this linguistic framing. Rather, his suggestion was simply that the scope of temporal threat be shrunk: there was no fruit in a wide jurisdiction to govern nonconformity. It was likely not only the financial security flowing from the Treaty of Dover that emboldened Charles’s actions. The decision of many among the clergy to cast their office as exclusively spiritual in a demand for an independent authority had been a linguistic misstep. By 1670, of the five Clarendon Code statutes, the previous three had all framed nonconformity as an exclusively temporal problem. If the Restoration clergy wanted to present themselves as spiritual officers, the cost of this was an increasingly slight position in the new confessional regime. Charles was thus following a trend already prevalent in Restoration legislation – the diminution of clerical power – and he likely hoped his Declaration would be seen in this light.

Charles was able to ward off confronting the Commons for almost a year after the Declaration through repeat prorogations of parliament.92 Parliament ultimately resumed in February 1673,93 and the Commons were quick to turn upon the Declaration, which they fiercely opposed. The opposition centred on two fronts, the first significantly sharper than the second. First, MPs objected to Charles’s claim that he held a prerogative power to legislate alone in ecclesiastical matters. Charles, of course, was drawing on a long rhetorical tradition that defended an exclusive right to legislate as located in the king’s office. The immediate response of the Commons to the Declaration, only six days after the resumption of a parliament, was a repudiation of this claim.

On 10 February 1673, the Commons voted 168 to 116 to reject Charles’s claim that his official capacities entailed an ability to dispense with penal statutes.94 The Commons presented their

91 Coffey, Persecution and Toleration in Protestant England, 172. 92 ‘HCJ Volume 9: 16 April 1672’, in JHC: Volume 9, 244; ‘HCJ Volume 9: 30 October 1672’, in JHC: Volume 9, 245. 93 ‘HCJ Volume 9: 4 February 1673’, in JHC: Volume 9, 245. 94 ‘HCJ Volume 9: 10 February 1673’, in JHC: Volume 9, 251. 168 rejection to Charles in formal terms as a petition in which they explained it was their ‘Duty to inform Your Majesty, that penal Statutes, in Matters Ecclesiastical, cannot be suspended, but by Act of Parliament’.95 We encountered similar assertions in Chapter 3 by Hale, who had claimed that as the king was not independent in law-making, he could not do away with law at will. Charles in turn contested the Commons’ claim, and it is worth appreciating the language he used to do so. He claimed to be ‘very much troubled’ by the Commons petition, for such ‘Questioning of His Power’ he found ‘not done in the Reigns of any of His Ancestors’.96

Charles thus deployed an historiographic argument, claiming there was no historical evidence for such a limitation to monarchical office. In his Breda Declaration, he had defended his uninhibited legislative power in terms of divine right. In doing so, he deployed rhetorical formulations of his office in support of the same claim – his ability to legislate alone on religious matters – that have been unduly separated by historians of the ancient constitution. In this scholarship, the rhetoric of historiography and divine right are seen as distinct, with the latter marginalised; a failure to recognise that both were deployed in service of configuring official relationships in law.

As we can see in Charles shifting between divine right and historiography to defend his office’s power, we encounter less rhetorical solidity than the fluid rhetoric of office in which claims were combined or separated in the cut and thrust of debate. Historiography was not, as Goldie claims, an autonomous ‘discursive field’,97 but one rhetoric among others for configuring office. The Commons, for their part, repudiated Charles’s historiographic claim, contending he was ‘very much misinformed’, for ‘no such Power’ to make law regarding religion without parliament had ever been claimed.98 Both Charles and the MPs thus drew on a range of malleable forms of official rhetoric to buttress their polemical assaults on one another. Less a stable linguistic terrain colonised by monolithic ‘languages’, the conflict between parliament and crown over the scope of the latter’s office was constituted by the weaving and reweaving of rhetorics in the heat of battle.

95 ‘HCJ Volume 9: 14 February 1673’, in JHC: Volume 9, 252-253. 96 ‘HCJ Volume 9: 24 February 1673’, in JHC: Volume 9, 256. 97 Goldie, ‘The Ancient Constitution and the Languages of Political Thought’, 4. 98 ‘HCJ Volume 9: 26 February 1673’, in JHC: Volume 9, pp. 257-258. 169

Alongside this attack on the Declaration as exceeding monarchical office’s bounds, the Commons produced a more subtle critique, which reflected an attempt at compromise. The Commons resolved to attempt to mitigate the penal laws against Protestant nonconformists,99 appointing a committee to consider legislation.100 In doing so, they acknowledged the increasingly diminished status of the Church of England, accepting Charles’s desire for a degree of confessional relativisation. This attempt to legislate a mitigation was almost successful. A bill was brought in the Commons on 6 March 1673,101 passing the Commons later that month.102 The bill failed, though, due to irreconcilable disagreement between the Houses, the Commons objecting to the Lords’ request to remove a requirement to take ‘Oaths of Allegiance and Supremacy’ and ‘Subscription to the Articles of the Doctrine of the Church of England’. Though the bill was intended to provide ‘Ease’ to nonconforming Protestants, the Commons explained, if it did not require agreement on ‘Fundamentals of Religion’, it would become a means by which ‘Popery, and all Heresies and Sects’ would thrive.103

This lenience towards nonconforming Protestants, though, was accompanied with a rejection of Charles’s Indulgence towards Catholics, who the Commons thought were such a threat to the realm that an intensification of legislation against Catholicism was necessary.104 The Commons petitioned Charles on the matter, noting their ‘tender Regard to the Preservation of Your Majesty’s Person, and the Peace and Tranquility of this Kingdom’, that was under threat from the employment of ‘Popish Recusants’, particularly in the military. To address this threat, the Commons requested the king order all Papists out of the Kingdom within thirty days.105 In response to Charles’s claim, then, that the laws against nonconforming Protestants and Catholics be suspended for the good of the kingdom, the Commons responded that although the laws against Protestants could be diminished, the laws against Catholics required expansion, given the threat they posed to king and country.

99 ‘HCJ Volume 9: 14 February 1673’. 100 ‘HCJ Volume 9: 18 February 1673’, in JHC: Volume 9, 253-254. 101 ‘HCJ Volume 9: 6 March 1673’, in JHC: Volume 9, 263-264. 102 ‘HCJ Volume 9: 19 March 1673’, in JHC: Volume 9, 270-271. 103 ‘HCJ Volume 9: 29 March 1673’, in JHC: Volume 9, 280-281. 104 ‘HCJ Volume 9: 28 February 1673’, in JHC: Volume 9, 259-260. 105 ‘HCJ Volume 9: 3 March 1673’, in JHC: Volume 9, 260-261. 170

The Lords lent support to the petition106 and on 8 March 1673, Charles announced his agreement with it, withdrawing his Royal Declaration of Indulgence,107 and requesting the Commons grant supply in exchange for his decision.108 With the agreement of both Lords and king, the Commons moved to legislate against Catholicism, their bill for ‘Preventing Growth of Popery’ passing the Commons on 12 March 1673,109 and receiving the agreement of the Lords on the 24th of that month.110 The statute that came out of this process was the first Test Act. The Act required all holders of civil or military office to: swear oaths of allegiance and supremacy to Charles, acknowledging him as head of the Church of England; receive the Sacrament in accordance with Church of England practice; and declare the falsity of the Catholic doctrine of transubstantiation.111 The debate that brought about the Act, particularly as it was had among the MPs, had again avoided salvific questions for those temporal: Catholic worship threatened the kingdom’s peace. And the text of the Act sustained this concern, describing its function as ‘preventing dangers which may happen from Popish Recusants’.112

In response to the Test Act, the Catholic Duke of York and heir to the throne, James, resigned his office as Lord High Admiral of England. That England could have a Catholic monarch created further concern about the immediacy of the threat Popery posed to the state. The result of this was a further Test Act in 1678, passed to force Catholics in parliament out of office. The statute simply extended the requirements of the 1673 statute to include the Lords and Commons. The statute was brought in the wake of Titus Oates’s accusations of a Popish conspiracy to murder Charles and place James on the throne, and the principal target of the legislation was the Duke of York, as the Commons sought to remove him from the House of Lords with the legislation. The Lords protected James, though, forcing the amendment of the initial bill to except James from the statute’s cover: ‘nothing in this Act… shall extend to his Royall Highnesse the Duke of Yorke’.113 Once more, the rhetoric of Catholicism’s temporal danger was invoked: the Act was required to prevent the ‘Increase and Danger of Popery’.114

106 ‘HCJ Volume 9: 7 March 1673’, in JHC: Volume 9, 264-265; ‘HLJ Volume 12: 5 March 1673’, in JHL: Volume 12, 543-544. 107 ‘HLJ Volume 12: 8 March 1673’, in JHL: Volume 12, 548-550. 108 ‘HCJ Volume 9: 8 March 1673’, in JHC: Volume 9, 265-6. 109 ‘HCJ Volume 9: 12 March 1673’, in JHC: Volume 9, 267-268. 110 ‘HLJ Volume 12: 24 March 1673’, in JHL: Volume 12, 565-568. 111 ‘Charles II, 1672: An Act for preventing Dangers which may happen from Popish Recusants’. 112 Ibid. 113 ‘Charles II, 1678: (Stat. 2.) An Act for the more effectuall preserving the Kings Person and Government by disableing Papists’, in Statutes of the Realm: Volume 5, 894-896. 114 Ibid. 171

The Popish Plot had other effects on parliament’s role as a legal institution. In particular, Oates accused five Catholic members of the House of Lords of being involved in the plot to kill the king. In December 1678, the Commons passed a motion to impeach the five Lords,115 though this was halted by Charles’s proroguing of parliament.116 Ultimately, the Lords tried and convicted William Howard, the Earl of , for treason in late 1680. Stafford was tried from 30 November 1680, to 7 December that year, and was found guilty by 55 Lords to 31. Sentenced to execution, he was beheaded at the end of December.117

Though this trial was an example of the Lords exercising their jurisdiction as a court, it exceeds the scope of this chapter, for Stafford was tried for treason not so much for being a Catholic, but for the accusation he was involved in a treasonous plot to murder the king. His offence was not the holding of a nonconforming religious position, but treason. Our interest in this period and in the work of king and parliament is with their law-making regarding religious matters, and Stafford’s trial, though a result of accusations of a Catholic conspiracy, was not an example of the law governing ecclesiastical affairs but ultimately a conventional treason trial; the trial of a man accused of plotting to murder Charles.

Between the Commons’ motion to impeach the Catholic Lords and Howard’s treason conviction, the Commons also attempted to move for the first time legislation that would prevent the Duke of York acceding to the throne at Charles’s death, a move which began the so-called Exclusion Crisis. The Commons attempted to pass three such statutes, once in 1679, once in 1680, and again in 1681. Each attempt at passing such a statute was unsuccessful due to Charles’s use of his power to prorogue parliament, but the attempt to legislate such an exclusion provides another repository of parliamentary rhetoric on religion in relation to law, thickening our background to the Restoration common law and the common lawyers’ approach to religious matters.

The first attempt at exclusion began on 15 May 1679, with the first reading of ‘A Bill to disable the Duke of Yorke to inherit the Imperial Crown’.118 The bill, of course, was not only an

115 ‘HCJ Volume 9: 28 December 1678’, in JHC: Volume 9, 564-566. 116 ‘HCJ Volume 9: 30 December 1678’, in JHC: Volume 9, 566. 117 ‘HLJ Volume 13: 7 December 1680’, in JHL: Volume 13, 703-706. 118 ‘HCJ Volume 9: 15 May 1679’, in JHC: Volume 9, 622-623. 172 example of the antipathy to Catholics, but an assertion of parliament’s power. The Welsh MP , speaking at the first reading, asserted that ‘The Parliament may dispose of the Crown’, though ultimately opposed the bill on the grounds that it sought to banish James from the kingdom, too.119 Importantly, we can see in the Commons debates over the legislation something of a return to the language of spiritual and temporal threat, though the latter remained where emphasis lay. The bill itself emphasised only dangers to the state – James’s Catholic faith was ‘to the manifest Hazard of these Kingdoms’120 – but debate on it referenced the dangers incumbent to the Protestant faith itself.

On 20 May, Thomas Clarges declared his own opposition to the statute, noting that he did not think ‘King, Laws, or Religion’ were under threat from James. Moreover, should the bill be passed, which Clarges thought unlikely, it would exacerbate the danger to the kingdom. Such a bill risked plunging the country back into civil war. It would leave the ‘Prince exasperated’, which may result in an uprising. The statute would thus require ‘a standing Army to maintain it’, and the presence of a powerful standing army would in turn endanger all law in England. Clarges noted the success of the penal laws against nonconformity and Catholicism; these would all be at risk if an exclusion bill was passed. In closing, he re-emphasised the temporal danger that could arise: ‘[t]his Bill will cause animosities so stupendous and inconvenient’.121 Though the first attempt at legislation reached a second reading in the Commons,122 it collapsed with Charles’s prorogation of parliament on 27 May 1679.123

Parliament would not be called again until 21 October 1680,124 and the Commons moved to bring another bill to exclude James from the royal succession.125 The bill quickly passed three readings in the Commons before being sent up to the House of Lords.126 As they had regarding the previous proposed bill, MPs continued to express concerns regarding the threat James posed not only to the kingdom, but to the Protestant faith: worried what a Catholic king might do to the ‘Government and Religion of this Nation’. Indeed, the danger James posed

119 ‘Debates in 1679: May 15th-18th’, in Grey’s Debates: Volume 7, 278-303. 120 ‘The third Parliament of Charles II: First session - begins 6/3/1679’, in The History and Proceedings of the House of Commons: Volume 1 (London: 1742), 323-370. 121 ‘Debates in 1679: May 20th-23th’, in Grey’s Debates: Volume 7, 303-324. 122 ‘HCJ Volume 9: 21 May 1679’, in JHC: Volume 9, 626-627. 123 ‘HCJ Volume 9: 27 May 1679’, in JHC: Volume 9, 634. 124 ‘HCJ Volume 9: 21 October 1680’, in JHC: Volume 9, 636. 125 ‘HCJ Volume 9: 2 November 1680’, in JHC: Volume 9, 644-645. 126 ‘HCJ Volume 9: 4 November 1680’, in JHC: Volume 9, 646-647; ‘HCJ Volume 9: 6 November 1680’, in JHC: Volume 9, 647; ‘HCJ Volume 9: 11 November 1680’, in JHC: Volume 9, 650-651. 173 to the spiritual estate was especially emphasised here, for where the first proposed exclusion bill had focused only on the danger to the kingdom, this new bill was supposedly for the ‘securing of the Protestant Religion’.127

Though it passed the Commons with ease, the bill failed to gain the support of the House of Lords, where it was rejected at first reading.128 The king, too, announced his opposition, warning the Commons that their focus on excluding the Duke of York would render all other ‘Remedies for the Suppressing of Popery… ineffectual’. They ought instead to consider ‘all other Means for the Preservation of the Protestant Religion’, an enduring concern with matters typically described as spiritual.129 The Commons responded aggressively. On 7 January 1681, they declared that ‘there is no Security or Safety for the Protestant Religion, the King’s Life, or the… Government of this Kingdom’ without an exclusion bill passed. Those who had advised the King otherwise were ‘Promoters of Popery’, and the Commons declared their refusal to provide supply until such a bill passed.130 In the debate on the resolution, Henry Capel inverted Charles’s claim that a focus on exclusion made other laws ineffective: ‘no other Bills can do us any service at all… without this Exclusion Bill’.131 Three days later, Charles prorogued parliament again.132

Charles called parliament again two months later,133 and on 26 March 1681, the Commons resolved to bring a third exclusion bill.134 The Commons affirmed that, in spite of Charles’s suggestions that they seek other means to protect , they had been unable to find any: Ralph Montagu claimed ‘no Expedient can serve us, but the Bill for excluding the Duke’. Descriptions of the danger a Catholic king posed were consistent with its framing in the previous two debates: Montagu spoke of the danger to the ‘Protestant Religion’ and the ‘King’s Person’, while Henry Coventry warned that ‘the Religion of the Duke is as fatal a thing as can be to the Nation’.135 The bill, though, when brought on 28 March, was essentially stillborn,

127 ‘The fourth Parliament of Charles II: First session (2 of 5)- begins 4/11/1680’, in The History and Proceedings of the House of Commons: Volume 1, 403-435. 128 ‘HLJ Volume 13: 15 November 1680’, in JHL: Volume 13, 665-671. 129 ‘HCJ Volume 9: 4 January 1681’, in JHC: Volume 9, 699. 130 ‘HCJ Volume 9: 7 January 1681’, in JHC: Volume 9, 701-702. 131 ‘The fourth Parliament of Charles II: First session (4 of 5) - begins 21/10/1680’, in The History and Proceedings of the House of Commons: Volume 2 (London: 1742), 1-48. 132 ‘HCJ Volume 9: 10 January 1681’, in JHC: Volume 9, 703-704. 133 ‘HCJ Volume 9: 21 March 1681’, in JHC: Volume 9, 705. 134 ‘HCJ Volume 9: 26 March 1681’, in JHC: Volume 9, 710-712. 135 ‘Debates in 1681: March 26th’, in Grey’s Debates: Volume 8 (London: 1769), 309-338. 174 brought in the afternoon immediately before Charles prorogued parliament.136 Parliament would not be called again until after Charles’s death; prorogation warded off all three attempts at exclusion.

James II’s ascension to the throne in 1685 brought obvious tensions: an explicitly Catholic monarch was now the head of the Church of England, conformity with which was required by a range of statutes. James’s use of the dispensing power to permit Catholics to hold military office incensed parliament, which he repeatedly prorogued for almost the entirety of his reign. Beyond specific uses of the dispensing power, the most significant legal move of James’s reign regarding religion was his 1687 Royal Declaration of Indulgence, as his brother had attempted in 1672. Charles had encountered the opposition of parliament when MPs returned from prorogation.

Parliament was also prorogued when James gave his declaration in April 1687, and it would not sit again in his reign, the Royal Declaration contributing to the increasing opposition to James that would result in his overthrow the following year. Like his brother Charles, James approached the Royal Declaration with a rhetoric that presented it as consistent with the foregoing laws regarding ecclesiastical matters. His Declaration was consistent with the temporal framing of such subjects, for he explained, as Charles had, that it was the inefficacy of the laws governing nonconformity that necessitated an Indulgence to suspend them.

James opened the Declaration by asserting his dedication to liberty of conscience. It had been his ‘constant sense and opinion’ that ‘conscience ought not to be constrained’. The reason, he explained, was that such liberty was ‘to the interest of government’, for to have ‘people forced in matters of mere religion… destroys by spoiling trade, depopulating countries and discouraging strangers’. Moreover, as Charles had claimed, penal laws regarding religion were ineffective: they ‘never obtained the end’ they were created for. James thus justified his exercise of his prerogative power as providing ‘ease and quiet’ to the English people, and assisting the ‘increase of trade and encouragement of strangers’.137

136 ‘HCJ Volume 9: 28 March 1681’, in JHC: Volume 9, 712. 137 James II, ‘Declaration of Indulgence, 1687’, in English Historical Documents: Volume 6, 386-8, at 387. 175

James, too, invoked history, further evidence that historiographic argument was less a discrete language but a rhetorical resource that could be worked and reworked to multiple ends: to configure the scope of monarchical office in the dispute between Charles and the Commons over his Royal Declaration; and to defend action in office for James in his Royal Declaration. He justified the suspension of laws governing religious conformity on the basis that there was no evidence from ‘the four last reigns’ of their success. Like Charles, James also affirmed his support for the Church of England, claiming it would continue to operate ‘without any molestation or disturbance’. Where he most notably broke from Charles was in the latitude he afforded regarding worship. Charles had maintained the ability to regulate places of nonconforming worship and had sustained the ban on Catholic places of worship; James lifted regulation, permitting the establishment of Catholic churches.138

Conclusion We have covered a wide swathe of English history in this chapter, from the first attempt at legislating against heresy in the late fourteenth century, to James II’s Royal Declaration of Indulgence in 1687. If we cannot offer any simple summary of such temporal expanse, we can at least go some way to capturing what it would have looked like in legal terms for the Restoration King’s Bench. For the purpose of us recounting this history is to capture the range of ways sovereigns and Church courts engaged with religious matters through law. As we saw in Part 1, the two dominant accounts of judicial office from outside the judiciary were that common lawyers were subordinate to a sovereign king, parliament, or a divinely willed Church. Moreover, it is in terms of a common law subordinate to sovereignty that intellectual historians have conventionally described Restoration law. In thus capturing how these institutions engaged with religious matters, we are able to capture the legal rhetoric they deployed.

Much of this legal history played out through the binary of temporal and spiritual estates, the former concerned with the safety of the realm, the latter with the salvation of English souls. This binary was instituted in Richard II’s initial attempt at legislating on heresy, and the rhetoric of spiritual and temporal pervaded subsequent heresy statutes. Until Elizabeth I’s Act of Supremacy, this rhetoric was empowering for the ecclesiastical courts, which had a wide interpretative latitude in defining heresy and a stake in both spiritual and temporal estates. With

138 Ibid. 176 the Act of Supremacy, the ecclesiastical courts were redescribed as exclusively spiritual, and given a narrow definitional scope in the policing of heresy.

Though the ecclesiastical courts accepted this framing of their jurisdiction as exclusively spiritual, they repudiated the Elizabethan definition of heresy, proffering their own expansive understanding of heresy as an exclusively spiritual threat. In doing so, these early seventeenth- century courts treated heresy as a matter of belief, amendable through spiritual reform in the form of abjuration or begging forgiveness. These were spiritual courts governing a spiritual offence through processes of spiritual reformation; only where abjuration was refused were executions ordered. By positioning themselves in this way, these Church courts rejected the idea that England was constituted by a hierarchical legal system, asserting an independent juridical authority in spiritual affairs. In the 1630s, though, Archbishop William Laud sought to reposition the Church, asserting an account of the Church-state relationship in which spiritual and temporal were not distinct spheres, but were united under the king, who held supremacy over the Church.139

Though the early seventeenth century was identifiable for the rise of heresy as an exclusively spiritual offence in Church courts, the Civil Wars and Interregnum period provided not only a restoration of the language of spiritual and temporal harm in religious offences, but proffered a particular emphasis towards the temporal dimensions of these offences. The 1650 statute against blasphemy and atheism, most notably, permitted liberty of conscience but prevented the speaking of blasphemous or atheistic expressions. Religious offences were not, as they had been previously, cast as a failure of belief in need of abjuration to save the soul of the accused, but were an outward danger to be redressed through sureties and imprisonment.

The Restoration re-establishment of the Church of England brought with it the Clarendon Code legislation which enforced conformity with the Church, but also resuscitated Elizabeth’s Act of Supremacy, asserting the subordination of Church to crown. Moreover, Charles opposed extensive policing of religious conformity, advocating intervention in ecclesiastical matters only insofar as they endangered the peace of the kingdom. The clerical response was to defend the importance of the spiritual estate, a defence which positioned them as an independent authority, not subordinate to kingship. This defence found support in parliament, which assisted

139 On the nineteenth century disputes over the Church’s status, see Laski Studies in the Problem of Sovereignty. 177 in the pushing through of legislation, most significantly the Act of Uniformity, that treated nonconformity as an offence both spiritual and temporal; that continued to justify, in other words, the position of the Church as a significant legal authority.

Increasingly, though, the debates and legislation regarding religious conformity took on an exclusively temporal idiom. The side-effect of the Church’s attempt to justify its independence through the clergy emphasising the spiritual nature of their office was the progressive marginalisation of the Church as a legal authority. If the Church was a spiritual institution, but the laws governing conformity regulated temporal matters, then it held no jurisdictional power in such matters. The Church could have its independence, but the cost was juridical marginalisation. It was this marginalisation that likely empowered both Charles II and James II to seek to exercise a prerogative authority to suspend the penal laws governing conformity.

Although both Royal Declarations were deeply unpopular, they rested on an identical idiom to the legislation that governed nonconformity: religion should be governed only insofar as it was a temporal threat. Both monarchs simply claimed there was a greater temporal threat in legislating on religion than in not doing so. Indeed, Charles’s attempt to suspend laws governing Protestant nonconformity garnered a measure of support in the House of Commons, which principally objected to toleration for Catholics and Charles’s contention that he could legislate on religion alone. The relativisation of Protestant worship – the repositioning of the Church of England as the dominant Protestant authority, but not the only one – was well- regarded.

Importantly, none of this should be taken to suggest that Restoration legislation, in marginalising the Church as a legal authority, was secularising in terms of a law devoid of religion. For despite the attempts to suspend penal laws through indulgence, the period was characterised by a powerful set of statutes that demanded conformity with the Church of England. Nonconforming worship was banned. Though this was not a confessional regime in which the Church itself held significant power as a juridical authority, it was one in which a national Church set the terms of mandated worship. Although such worship was increasingly defined not in the terms the Church used to define its role – as a salvific necessity – but on grounds of peacekeeping, to point this out is to merely acknowledge the specific form of confessionalisation that prevailed in Restoration England, not deny confessionalisation.

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Chapter 5: Restoration Judicial Office and the lex scripta

The common lawyers held the pre-eminent place in the English jurisdictional hierarchy. Though parliament nominally functioned as the highest court of appeal, the common law was the largest jurisdiction in England and the day-to-day administration of English law was largely handled by the common lawyers. The jurisdiction itself was expansive. At the lowest level, common law was carried out regionally by justices of the peace, it was heard in county courts, and throughout England by the Westminster judges on assize. At the apex of this hierarchy were the Westminster courts themselves, staffed by the most senior judges in England. Their roles included the policing of jurisdictional boundaries between the smaller jurisdictions and the licensing of legal tracts.

The Court of Chancery had both an equity and common law jurisdiction, while the Courts of Common Pleas and King’s Bench were exclusively common law courts. The former heard only matters between subjects, while the latter heard matters between subjects and matters to which the king was a party, for it held a criminal jurisdiction, which the Common Pleas did not. In the Restoration, the King’s Bench was generally considered the more senior of the three Westminster courts, in part for the fiction that the king sat in the court, himself. Together, the judges of these three courts formed the senior judiciary of England, a collective with such legal expertise that the houses of parliament relied on them for guidance in matters of law.

Crucial to their office in court, these judges were responsible for the implementation of statute law passed by king and parliament. It thus rested upon the judiciary to interpret and apply legislation; though Hobbes and Bacon claimed that the king gave force to the law, it was the judiciary who ultimately gave effect to statute. In Chapter 4, we covered a swathe of legislation from the fourteenth to the seventeenth century. Not all of this legislation was in force by the Restoration. The earlier heresy statues had been long-repealed, replaced by the Act of Supremacy, which was in force, accompanied by the Clarendon Code legislation enforcing religious conformity.

This chapter uncovers the approach of the Restoration King’s Bench judiciary to religious nonconformity, demonstrating how this legislation played out in court. In doing so, it elucidates the contributions of the judiciary to the disputes over judicial office covered in Part 1, and regarding legislative authority between king, parliament, and Church recounted in Chapter 4. 179

Intellectual historians have tended to focus on matters such as the debates over the Declarations of Indulgence,1 and have not focused on the actual practice of law courts. One possible explanation for this historiographical lacunae is the tendency among intellectual historians studying the seventeenth century to reify rhetorical disputes as theoretical. Once the contest over Indulgence is treated as one between rival theories or ideologies, the law courts are occluded from sight. This thesis, in contrast, contends that the key to understanding early modern rhetoric is to appreciate the centrality of office, for it was the configuration of office, not theory, that was central to dispute. And office was a practical category, for one’s office entailed the range of actions one could take.

In this light, the debates over the Declarations of Indulgence were between rival accounts of the relationship between sovereign and judicial office. For Charles, James, and their defenders, the office of the king included an uninhibited capacity, if not to pass law alone on all matters, at least to do so in regard to religion, and the judiciary were required to carry out such law. For the Commons and their supporters, the office of the king lacked such a power: only with the support of the houses of parliament could any law on religion be passed, and it was these laws that were to be implemented by the common lawyers. The work of King’s Bench is thus crucial to understanding the Restoration state, for it was their exercise of office that was the subject of such dispute.

As we will see in this chapter, the judiciary responded to the dispute over their office and over the Restoration settlement through consistent affirmation of their independence from king, parliament, and Church; a rejection of claims of judicial subordination. The reception of legislation – the lex scripta – in the Court of King’s Bench was piecemeal and selective, contingent on the priorities of the judiciary themselves, a finding consistent with Fletcher’s regarding county convictions under the Conventicle Act.2 The King’s Bench judiciary came to cite consistently the Clarendon Code legislation only in the 1670s. Of importance here, the Bench did not begin regularly deploying this legislation in court until Charles’s attempted suspension of the penal laws against nonconformity in his Royal Declaration. The Bench, that is, appears to have relied on statute to repudiate the king’s attempt to make law alone. Similarly, extensive reliance on such legislation in the 1680s, the period of Charles’s personal rule, and

1 Clark, English Society 1660-1832, 68-74; Rose, ‘Royal Ecclesiastical Supremacy and the Restoration Church’; Mark Goldie, ‘’s Circle and James II’, The Historical Journal 35:3 (1992), 557-86. 2 Fletcher, ‘The Enforcement of the Conventicle Acts 1664-1679’. 180 the Catholic James’s reign, shows a Bench committed to wielding legislation the sitting king opposed. Invoking this legislation was a weapon to assert the judiciary’s independence from the monarch.

Elsewhere, the Bench cited these statutes to affirm their independence from the Church, following through on an implication of the Clarendon Code legislation explored in the previous chapter. The legislation against nonconformity increasingly framed it as an exclusively temporal threat, at the same time that the Church presented itself as a spiritual institution. Numerous King’s Bench justices took this as evidence that the Church courts had no jurisdiction over nonconformity, which fell instead to the temporal common law courts. In doing so, these judges mobilised the Clarendon Code to expand the range of matters the common law covered. Such assertions of independence from the ecclesiastical courts were repeated by the King’s Bench judiciary in cases where they presided over the boundary between Church and common law courts.

King’s Bench administered the jurisdictional boundary between ecclesiastical and common law principally through the use of writs of prohibition and mandamus. The former enabled the King’s Bench to halt matters in ecclesiastical courts, generally with the intention that they be heard instead at common law. The latter enabled King’s Bench to instruct ecclesiastical officials to act in particular ways. Policing the jurisdictional boundary through the use of these writs, the King’s Bench judiciary distinguished Church and common law jurisdictions on the basis that the common law centred on the administration of two matters: temporal concerns; and customary practices of the realm. The first of these matters focused on the mitigation of harm to subjects – the preservation of their lives, liberties, and employment – and the maintenance of peace. The judiciary contrasted this to the work of the spiritual ecclesiastical courts, which existed for salvific ends.

The common law, too, was the jurisdiction of custom, for the judiciary were entrusted with uncovering and protecting England’s ancient customs. These focuses often overlapped: most matters were adjudicated through reference to precedent, the best record, according to the judiciary, of the customs of the realm. The judges of King’s Bench thus accepted that the Church’s jurisdiction was spiritual, but they disputed how expansive this spiritual jurisdiction was. In the hands of ambitious judges, almost any matter could be described in temporal terms, and thus rendered justiciable at common law. Other judges were more conservative in what 181 they described as temporal, and in some cases even endorsed a narrow temporal jurisdiction for the ecclesiastical courts.

In demonstrating how the King’s Bench judiciary’s citation of the legislation regarding nonconformity and deployment of writs of prohibition and mandamus advanced an account of judicial independence from king, parliament, and Church, this chapter will consist of three sections. It follows a chronological structure. The first section focuses on the terms as Chief Justice of Robert Foster, Robert Hyde, and John Kelyng, from 1660 to 1671. The second looks at Chief Justices Matthew Hale, Richard Rainsford, and William Scroggs, the period 1671 to 1681. And the third encompasses the terms of Francis Pemberton, George Jeffreys, Edward Herbert, and Robert Wright, from 1681 to end of James’s reign in 1688. This structure enables us to see shifts in judicial personnel, but also to track the work of King’s Bench against the legislative landscape we inspected in the previous chapter. Chapters 5 and 6 draw predominantly on the English Reports. In doing so, these chapters interpret cases not through isolated reading of individual cases, but through a rich contextualisation of hundreds of cases against each other.

I In Michaelmas term 1661, the master and fellows of Christ’s College, Cambridge, expelled Dr Withrington, one of the College’s fellows. There remains no record of the grounds for Withrington’s expulsion,3 but he appealed it to the King’s Bench. There, his barrister Allen brought an application for a writ of mandamus to Chief Justice Foster and Justices Thomas Malet, Thomas Twisden, and Wadham Windham. Christ’s College was an ecclesiastical institution, and the writ sought was for Withrington’s restitution to the position of fellow. The case hinged on a question of whether King’s Bench had the authority to demand Withrington’s restitution, which the Bench ultimately determined it did not. At issue was not the validity of the expulsion, but the possibility that the common law judiciary had an ability, by virtue of their office, to preside over such a matter.

Allen opened the trial by declaring that the common law possessed jurisdiction: though a fellowship to a Church institution may regard ‘spiritual things, yet this Court must judge of

3 Withrington’s expulsion is mentioned but not explained in John Ayliffe, The Ancient and Present State of the (London: 1723), 89. 182 what causes’, and indeed, though ‘Spiritual Courts have jurisdiction… fellowships are purely civil’. In other words, though there was a distinction between the spiritual dominion of the Church courts and the common law, the common law retained a right of intervention to ensure the ecclesiastical courts were wielding their jurisdiction properly, and this was particularly the case where the matter involved ‘civil… lay-men’ rather than ecclesiastical personnel. Allen collated multiple precedents to prove his point; argument through extant law was the means through which court room debate was carried out.

Representing Christ’s College, repudiated Allen’s claims, and did so through an identical idiom: the collection of supporting precedent, in this case to deny a right of intervention. Finch claimed that as the College was empowered in the appointment and dismissal of its fellows by ‘Act of Parliament’, ‘the censure of the master should be final without appeal’, and he cited a range of precedents in which common law courts allegedly acknowledged they had ‘no conusans of the cause’. Allen in turn contested Finch’s framing of the problem. The statute only confirmed the College as ‘establisht’, but did not preclude its actions from appeal, and indeed, precedent showed that though a corporation may be ‘intended spiritual’, where it engaged with civil matters, ‘its lay’. Allen further noted that the College was not even exclusively spiritual: it was a ‘mixt corporation’.

The conflict was thus over the relationship between common law and spiritual matters. Finch claimed that by statute the latter was exempt from the former, at least in the case of Christ’s College. Allen’s claim was aggressive, for he had first claimed that the common lawyers had a general oversight over the administration of the spiritual jurisdiction, and had then claimed that this was especially the case where a corporation dealt with lay matters, as Christ’s College did. The Bench, though, were sceptical of Allen’s argument. Twisden affirmed that it was the precedent cited by Finch, not Allen, that bore upon the case, for it proved ‘no appeal lyeth’ from statutory ecclesiastical institutions, and thus here, ‘restitution could not be granted’.4 The case was adjourned until Hillary term, but on its resumption, Chief Justice Foster confirmed Twisden’s claim: ‘the doctor cannot have restitution’.5

4 Dr Withringtons Case (1661) 89 ER 83, 868-9. 5 Dr Withringtons Case (1661) 57 ER 83, 918. 183

Dr Withringtons Case was one of the first Restoration encounters between the King’s Bench and the ecclesiastical jurisdiction; in this case, not a Church court, but a Church institution with regulatory powers. Though all parties – Allen, Finch, and the Bench – affirmed the independence of spiritual and temporal jurisdictions, Allen had advanced an expansive understanding of the temporal that permitted extensive intervention within the Church’s work. The Bench and Finch, though, offered a more restrictive reading: Christ’s College was immune from intervention, for whether its act was ‘right or wrong’, appeal was impossible.6 Not only were spiritual and temporal jurisdictions independent, but the latter had a limited right of intervention in the former.

Elsewhere, though, Foster’s Bench offered an ambivalent stance towards the ecclesiastical courts and the work of the Church more generally. In 1662, they quashed the indictment of a preacher convicted under the Act of Uniformity for failing to use the Book of Common Prayer, though he pled guilty to the charge.7 Though the Act had presented such a failure as a hazard to both realm and soul, the latter a key concern of the Church, the King’s Bench gave the offence little attention. The same year, the Bench granted a writ of prohibition to halt an ecclesiastical suit regarding tithes on the grounds that although the Church courts were intended pro salutae animae, Church courts could not act to this end without showing cause.8 We see here an inversion of the Bench’s move in Dr Withringtons Case: there, Christ’s College was described as spiritual, but intervention impossible; here, the Church courts remained spiritual, but their exercise of jurisdiction was subject to common law oversight.

A similar distinction between the temporal common law courts and spiritual ecclesiastical courts undergirded the denial of a prohibition in Butler against Yatemen (1662). The case involved a suit for tithes, in which the boundaries of the parish were in dispute. Advocating a prohibition, the barrister Holt claimed that as the relevant parties were ‘not spiritual’, a prohibition was appropriate. Justice Twisden, too, noted that if the dispute over parish boundaries was a matter of ‘common right’ then the case was ‘temporal’, thus ‘triable at common law’. The court, though, determined that to the degree that the case infringed on the ‘temporal’, it was ‘incidental’, and the case properly belonged to a ‘Spiritual Court’.9 The

6 Dr Withringtons Case (1661) 89 ER 83, 868-9. 7 The King against Peachie (1662) 125 ER 83, 955. 8 133 (1662) 133 ER 83, 956. 9 Butler against Yateman (1662) 66 ER 83, 999-1000. 184

Church court, on this judgment, not only held a spiritual jurisdiction, but a narrow temporal jurisdiction; it was permitted to adjudicate on those temporal matters – the general preserve of common law – secondary to spiritual concerns.

A prohibition was similarly denied in another 1662 case regarding an ecclesiastical suit between parson and vicar over a pension. There, the court declared that as both parties were ecclesiastical personnel, the matter fell beyond the common law’s purview.10 A prohibition was granted the same year, though, regarding an ecclesiastical dispute over paying for dilapidations to a freehold. Foster’s Bench declared that as the case involved a freehold, it was a question of paying ‘damages’, which ‘cannot be tryed by… Spiritual Court’.11 In Buxton against Batemen (1662), the Bench declared that a ‘temporal reason’ was required for the granting of a writ of prohibition.12 Ultimately, Foster’s Bench granted prohibitions for eight of sixteen requests, and one writ of mandamus from two writ-applications.

We can see from these cases a consistent dedication among Foster and his judicial colleagues towards a framing of the relationship between common and Church law as distinguished by their distinct temporal and spiritual concerns. Moreover, the Bench was hesitant to intervene in the ecclesiastical jurisdiction, doing so only half the time. It was insufficient for them that a case merely relate incidentally or in-part to temporal concerns. An explicit temporal focus was necessary for the Bench to issue writs of prohibition and remove cases from Church oversight into the common law. Though the Bench saw common and ecclesiastical law as possessed of a jurisdictional independence, they framed this within a broader understanding of the common law’s superiority to ecclesiastical law. Indeed, even when denying writs of prohibition, such a claim of superiority could be implicit: every prohibition heard entailed a declaration that the common law possessed a right of review into the workings of the ecclesiastical courts. If they did not always intervene, given jurisdictional demarcations, the common law could at least supervise the operation of the spiritual jurisdiction.

That Foster’s Bench thought of the jurisdictions hierarchically is most obvious in Manby against Scot (1662), recorded in one of the longest reports written by the barrister and court reporter Joseph Keble. The case regarded an appeal from an inferior common law court of a

10 71 (1662) 71 ER 83, 1001. 11 Parker against Williams (1662) 14 ER 83, 1037. 12 Buxton against Bateman (1662) 94 ER 83, 1009-10. 185 suit between a married couple that had separated, though not divorced. It is a difficulty of seventeenth century reports that few of them are recorded with the plaintiff the first-named party in the title, and defendant the second, as is contemporary practice, and it is because of this that is unclear which party was Manby and which Scot. Either way, the suit consisted of an application by the wife for alimony. The lower court had granted it, and its judgment was now in question, the appeal contending that the granting of alimony fell outside the purview of the common law, and that the case better belonged to the ecclesiastical courts.

In response to the question, Foster and the rest of the King’s Bench judiciary made three claims. First, they argued that it was a responsibility of the common law to ‘take care of danger’ and ‘the lives of men’, so it was appropriate that alimony be provided in such a case, lest the separation result in the destitution of the wife. Second, the judges listed multiple precedents, in some cases drawn from ecclesiastical courts, that affirmed the lower court’s decision to grant alimony as consistent with extant law. The third claim the judges made, though, was the most significant. Not only were applications for alimony heard ‘at common law every day’, but the common law possessed jurisdiction because even though ecclesiastical courts could hear such cases, ecclesiastical law was ultimately a devolved form of common law.

As the Bench stated in their unison judgment: ‘all the spiritual law is but branches of the common law’. In a reference to the disestablishment of the Church courts in the 1640s, the Bench further declared that when disestablished, the ecclesiastical jurisdiction ‘retorn again to common law’.13 The claim, in short, was that common law was a superior law to ecclesiastical law, for the latter was not only under the former’s purview, but was in fact merely a component of the common law. Though the standard work of common and ecclesiastical law may be distinct, demarcated by the spiritual and temporal dimensions of cases, Foster’s Bench suggested that it was only the delegation by common law of spiritual matters to Church courts that enabled these courts to administer spiritual causes. The common law took over such causes in the absence of the ecclesiastical courts, and retained a jurisdiction in these matters always.

The difference between this judgment and that in Dr Withringtons Case appears to lie in the fact that the statute establishing Christ’s College precluded judicial intervention in its regulatory operations. But no such preclusion protected the Church courts, in whose

13 Manby against Scot (1662) 92 ER 83, 1008-9. 186 jurisdiction the common lawyers retained a right of intervention. Foster’s Bench, then, ultimately settled on an understanding of the relationship between common and ecclesiastical law as hierarchical, the former superior to the latter. The Bench’s lone engagement with the Act of Uniformity suggested a similar approach to the Church: the Bench asserted a jurisdiction over nonconformity, once a matter for the Church courts, but then dismissed it as a concern, quashing the indictment.

In 1663, Chief Justice Foster died, replaced as Chief Justice by Hyde, while Justice Malet retired. To fill the vacancies on the Bench, Justice John Kelyng was appointed to King’s Bench. The engagement by Hyde’s Bench with the Church courts, in particular, reveals the changes small shifts in judicial personnel could make. For where Foster’s Bench had endorsed a contingent independence for the spiritual jurisdiction, intervening at a rate of 50%, Hyde’s Bench showed much greater deference to the ecclesiastical jurisdiction, and offered significantly firmer affirmations of ecclesiastical independence. Their near-constant response was to affirm the spiritual nature of the matters at hand and turn them back to the ecclesiastical courts. Foster’s Bench had intervened in nine of eighteen writ applications requesting the Bench intervene in the ecclesiastical courts. In contrast, Hyde’s Bench granted only three writs of prohibition from eighteen applications, and heard only one application for a writ of mandamus, which they also denied.

Beyond granting writs for half the applications heard, Foster’s Bench had repeatedly affirmed where prohibitions could be granted; reminders of the Bench’s capacity for intervention, and evidence that the judiciary were regularly considering intervention. Moreover, Manby against Scot had asserted the common law’s jurisdictional supremacy over the ecclesiastical courts. Hyde’s Bench expressed a much greater reticence to intervene in the ecclesiastical courts. This reticence is clear in Smalbrook against Slader (1664), which involved an application for a writ of prohibition regarding an ecclesiastical suit over a church clerk’s forging of a bishop’s seal. The contention underlying the writ application was that forgery was a matter temporal, thus should not be tried before a Church court. In denying the writ, Hyde’s Bench offered an expansive account of the ecclesiastical courts’ power. As a clerk was an ecclesiastical office, Windham claimed that ‘The Ordinary’, the ecclesiastical officer entrusted with executing Church law, ‘may deprive the clerk for any excess whatsoever’. So expansive was this power, 187 that it was irrelevant whether the clerk’s offence was ‘temporal or spiritual’.14 In short, even in some temporal matters, the ecclesiastical courts had jurisdiction.

For evidence that Hyde was crucial to this shift towards strong affirmations of the independence and strength of the ecclesiastical courts, we can turn to another case that same year. In Lord Fauconbridge against Dean and Chapter of York, Justice Kelyng defended the Church’s independence even from monarchical oversight, and Hyde supported him in his doing so. Charles had appointed a layman to the bishopric of York. The bishop, though, contested the appointment of a ‘lay-hand’ to ecclesiastical office ‘without Act of Parliament’, and sought a writ of prohibition to block the move. At first hearing, Hyde’s Bench was sympathetic to the writ application, as the Bench opposed the king’s ability to intervene in the governance of ecclesiastical affairs. As such an office was part of the ‘jurisdiction spiritual’, a spiritual component was ‘appendant to the office’.15

The case was adjourned but on its resumption, the judges continued to contemplate the limitations of monarchical power in relation to the Church. At issue was a question we encountered in Chapter 4 as crucial to understanding the Church-state relationship. As we saw in Chapter 4, the Restoration clergy increasingly described themselves as independent of monarchical oversight on the grounds of their especial position as spiritual officers. Justice Kelyng followed this rhetorical framing to claim, with Hyde’s support, that the officer of church treasurer was ‘spiritual’, and because of this, ‘although some branches [of the office] be lay, a lay person is not capable of it’. The king’s choice was thus invalid.

Not only was the king’s selection invalid for Kelyng and Hyde, though, but the very act of appointing someone to ecclesiastical office was an overextension of the powers accruing to monarchical office. The bishopric of York had control of its own appointments and was independent from Charles because of its spiritual status: a lay person could not hold the office of treasurer in a church, ‘nor can the King exercise such jurisdiction’. Kelyng and Hyde thus affirmed the clerical framing of the Church’s position in the Church-state relationship as an institution independent on the grounds of its spiritual focus.

14 Smalbrook against Slader (1664) 73 ER 83, 1230. 15 76 (1664) 76 ER 83, 1231. 188

Windham and Twisden, though, suggested that the king did have jurisdiction, expressing an unwillingness to send a writ of prohibition; a denial of a writ would affirm the king’s appointment. Here, we get a full sense of the contingency of judgment-making, and the difficulty entailed in making pronouncements of constitutional stability. We have already seen conflict between king, Church, and parliament, and through Lord Fauconbridge against Dean and Chapter of York, we can see that the judiciary were parties to this conflict, too, and were themselves not a stable faction on the matter, but were divided. Kelyng and Hyde sought to wield judicial against monarchical office, to limit the actions of the king, an action Windham and Twisden were reluctant to take. Rather than a unified Restoration establishment, the Restoration was constituted by conflicts both between and within institutions. Unfortunately, the case was adjourned again and Keble provides no further report on it. It is unclear which treatment of the king’s power relative to Church and judiciary won out.16

Though Hyde’s Bench defended an independent Church when confronted with the demarcations between common and ecclesiastical law, they were unsympathetic towards the Clarendon Code legislation. Like Foster’s Bench, they attempted to obviate the laws against nonconformity where possible, further condemnation of scholarly approaches to the Restoration that are built only from a source base of statute law. In The King against Davies (1664), the Bench heard an indictment under the Conventicle Act. Davies was alleged to have failed to attend his parish church, instead attending a nonconforming Protestant service. The Bench found that he met the exceptions to conviction provided for by the statute, which included that acquittals would be provided for any who came before the court and swore they ‘doe not hold the takeing of an Oath to be unlawfull’,17 and quashed the conviction.18

Though the conclusion of the case is not recorded, we can see a similar inclination against a reliance on Clarendon Code legislation in The King against Dale Churchwarden of Spalding (1664). Dale was indicted under the Act of Uniformity for having kept the church doors shut, by which ‘the bells could not be rung’. Before the matter was adjourned, Hyde’s Bench declared that the Act of Uniformity was irrelevant: a failure to permit the bells to ring was a ‘miscarriage’ of office, but was ‘not within this statute’.19 Again, the King’s Bench were

16 Lord Fauconbridge against Dean and Chapter of York (1664) 13 ER 83, 1237. 17 ‘Charles II, 1664: An Act to prevent and suppresse seditious Conventicles’. 18 The King against Davies (1664) 55 ER 83, 1281. 19 The King against Dale Churchwarden of Spalding (1664) 4 ER 83, 1211. 189 reluctant to enforce the Clarendon Code legislation. If Hyde’s Bench was thus more enthusiastic than Foster’s towards the independence of the Church courts, it had an equal disregard for state. Indeed, in Chapter 4 we saw the ecclesiastical courts of the seventeenth century giving little credence to legislative approaches to heresy, and here we can see in these cases that the Restoration King’s Bench was equally opposed to statute law on religious nonconformity. For Hyde’s Bench, judicial office existed alongside, not superior, to ecclesiastical office, and was not subordinate to the legislative will of king or parliament; in fact, it potentially had a power over the monarch’s office.

Hyde died in 1665, and was replaced by Justice Kelyng in the office of Chief Justice. William Morton was added to the Bench the same year, filling the vacancy. Kelyng was one of the longest serving Chief Justices of the Restoration, holding office until 1671. Justice Windham died in 1668, replaced the following year by Richard Rainsford. Kelyng oversaw a substantial shift in the orientation of the King’s Bench with regard to the ecclesiastical jurisdiction. Foster’s Bench had heard few writ applications for intervention in the ecclesiastical courts, but where they did hear them, they granted writs at a rate of 50%. Hyde’s Bench heard one more writ application, but granted writs only 16% of the time.20

In contrast, the King’s Bench under Kelyng heard drastically more applications for writs requesting the Bench’s intervention in the Church courts: between 1665 and 1671, the Bench heard eighty-three applications for writs of prohibition, and three applications for writs of mandamus regarding the ecclesiastical courts. Kelyng’s Bench granted writs at a slightly lower rate than Foster’s Bench, if significantly higher than Hyde’s. Of the eighty-six applications for writs requesting King’s Bench intervene in ecclesiastical operations, Kelyng and his colleagues granted thirty-five. If this reduced rate of intervention was less than that effected by Foster’s Bench – 41% to 50% – the sheer volume of writs heard meant Kelyng’s Bench intervened far more often in the Church courts. And this increase in writ applications heard by the Bench itself marked a move against the ecclesiastical courts: a regular affirmation of the common law’s oversight of their work.

A particular strategy by which Kelyng’s Bench asserted its oversight over and ability to intervene in the ecclesiastical courts was the Bench’s insistence that if an ecclesiastical suit

20 All percentages have been rounded to the nearest whole number. 190 involved a question over customary practices, then a prohibition was required, for custom was a question for common law. We can see this argument clearly in the 1666 case Web against Newman, which revolved around an application for a writ of prohibition for an ecclesiastical suit for tithes. The ecclesiastical suit claimed that conies – small mammals, generally rabbits – were tithable, while the application for a prohibition alleged that they were ‘ferae naturae’ (of wild nature), so could not be subject to ownership, and thus taxation. Kelyng’s Bench agreed, and noted that it could only be by custom that animals ferae naturae could be tithable. Though the Church court claimed a custom, this was disputed, and the Bench stepped in, granting a prohibition. The claim undergirding the King’s Bench’s move was that a dispute over custom was for common law, not ecclesiastical law, to ascertain.21

Kelyng’s Bench’s willingness to infringe upon the Church Courts is even clearer if we turn to The King against Patrick (1666), a case which inverted a key declaration of Hyde’s Bench. Here, the King’s Bench heard a case somewhat similar to Dr Withringtons Case. Patrick had been appointed a fellow at a college, for he had been elected and the king had sent a writ for his appointment; the report does not specify which college, only that it was under Church control. Unfortunately, the report’s title seems to be an error, for the relevant dispute was not between king and Patrick, for the king supported Patrick, but the king and Dr Brian. Brian was the college officer who blocked the king’s writ, refusing to appoint Patrick, and against whom the writ of mandamus was ultimately sent to force him to appoint Patrick.

In Dr Withringtons Case, Foster’s Bench had defended the independence of Christ’s College, but that case was quickly dismissed as holding prescriptive force as precedent in The King against Patrick. Again, court room argumentation was carried out through comparing and contrasting existing case law. Dr Withringtons Case, Kelyng’s Bench explained, was about a fellow who had been dismissed, and The King against Patrick about a fellow who had been prevented from being admitted; the former case could not be a precedent for the latter. Though the Bench was at pains to distinguish these two cases, their judgment ultimately became a condemnation of the earlier case, and more generally of the proceedings of Foster’s and Hyde’s Benches.

21 Web against Newman (1666) 10 ER 84, 88. 191

We saw that in Butler against Yatemen, Foster’s Bench denied a prohibition where temporal concerns were merely ‘incidental’ to a case. In Smalbrook against Slader, Hyde’s Bench defended the spiritual and temporal power of the Ordinary, and in Lord Fauconbridge against Dean and Chapter of York, claimed that the spiritual component of church treasurership rendered the office outside the king’s purview, even though part of the office was lay. In contrast, Kelyng’s Bench claimed in The King against Patrick that ‘where the temporalty is mixed, the Spiritual Court hath no jurisdiction’. In other words, if a matter was in any way temporal, it was a matter for common law. Later in their judgment, the judges distinguished between the temporal and spiritual powers of a college, noting in particular that the ‘temporal power can never devolve to the bishop’. Moreover, Kelyng’s Bench closed their judgment with a general denial of the independence of the Church: it did not have ‘an uncontroulable power… to doe wrong’, thus was always subject to intervention,22 the claim a clear repudiation of Hyde’s Bench’s judgment in Dr Withringons Case that ‘right or wrong’, Christ’s College was subject to no oversight.

In granting the writ of mandamus to force the college to admit Patrick, Kelyng’s Bench offered an expansive account of the common law’s position in the common-ecclesiastical law relationship. For this Bench, though temporal and spiritual might belong to separate jurisdictions, the Church had no place in matters temporal, even if they were incidental to spiritual concerns. And though the Church courts could not meddle in the temporal, common law could in the spiritual, for where spiritual and temporal matters were both at issue, the common law was the appropriate jurisdiction. Importantly, the case also touched on the relationship between king and Church. Hyde’s Bench had contemplated in Lord Fauconbridge against Dean and Chapter of York a rejection of the king’s authority in spiritual matters, suggesting he had no power to appoint ecclesiastical officeholders. In The King against Patrick, the king’s writ to order the appointment of Patrick as a fellow was affirmed, his intervention in the Church’s work defended by King’s Bench. As well as an assault on the spiritual courts’ position relative to the common law courts, the case was also a defence of the monarch’s power over the Church.

Even where Kelyng’s Bench did not choose to intervene in the ecclesiastical jurisdiction, the judges were fixated on their ability to intervene, evidence of their focus on their oversight of

22 The King against Patrick (1666) 54 ER 84, 103-8. 192 the Church courts. In these cases, they provided detailed explications of what was required for them to grant writs of prohibition. In Taylor against the Archbishop of York (1668), for example, a prohibition was sought over a failure to deliver interrogatories – formal questions regarding the facts of the case for the accused to respond to – on the basis that prohibitions had been sent in similar prior cases. In denying a prohibition, Kelyng and his colleagues explained that the precedents cited did not fit, for in these cases there was a libel – a plaintiff’s legal declaration of the offence – but not one here. The Bench noted, though, that if the Church court was to attempt to proceed against the defendant as if it was a criminal trial, ‘a prohibition lieth’.23

In Coulston against Wainright (1668), a prohibition was similarly denied with a clear explanation of how to apply for one successfully. Here, the writ application claimed via ‘general suggestion’ that an ecclesiastical case violated statute. Kelyng’s Bench insisted that the writ needed to be brought by ‘particular suggestion’ regarding the specific article in question; if this was done ‘then the Court will grant a prohibition’.24 Even when denying a writ of prohibition, Kelyng’s Bench emphasised the contingency of the Church courts’ work. The ecclesiastical jurisdiction was always under the observation of the courts of common law. In sum, common law judicial office was always superior to ecclesiastical, and the common law judiciary could step in at any time to dissolve the Church’s jurisdiction in a case.

Indeed, to find a case where a prohibition was denied without an accompanying explanation of the power of King’s Bench to intervene in Church law, as in – against Maddox (1669), is so rare as to be exceptional.25 The closest Kelyng’s Bench came to defending the Church courts was in King against Standish (1670), but even here, the defence was very slight. The case concerned an attempt to retry a conviction heard originally at common law in Chancery for praemunire, the claim that the Pope possessed a jurisdiction in England. King’s Bench rejected the attempt to appeal to Chancery, with Twisden explaining that ‘Chancery could not relieve after a verdict at common-law’. Justice Morton dissented, but the rest of the Bench accepted Twisden’s argument. The Bench noted, though, that a case could be retried ‘onely in Spiritual Courts’.26 Even here, Kelyng’s Bench did not providing a strong defence of Church law. At

23 Taylor against The Archbishop of York (1668) 42 ER 84, 220. 24 Coulston against Wainright (1668) 58 ER 84, 223. 25 - against Maddox (1669) 105 ER 84, 364. 26 King against Standish (1670) 18 ER 84, 415-6. 193 best, the claim seems to be that where ecclesiastical courts had jurisdiction, so did the common law.

Kelyng’s Bench heard two trials relating to nonconformity. In The King against Warters (1670), the Bench heard an indictment against a nonconforming preacher under the Five Mile Act. Debate in the case principally regarded whether the Act covered both pretend preachers as well as actual preachers. Though this particular question was not resolved, Warters’s refusal to take the oath of supremacy resulted in his conviction.27 Warters’s conviction was the only conviction under the Clarendon Code by King’s Bench under Foster, Hyde, or Kelyng. In The King against Hayworth (1670), the Bench heard a habeas corpus application. Hayworth had been imprisoned for recusancy by a justice of the peace, and Kelyng’s Bench granted the writ and quashed the conviction, declaring that justices of the peace lacked this power.28If legislation defending the Church’s pre-eminence on predominantly temporal grounds was a key feature of the work of the Restoration parliament and king, such legislation was not central to the work of the highest common law court in the realm.

II Chief Justice Kelyng died in office in May 1671, and on 18 May, his replacement was appointed: Matthew Hale, previously an Exchequer Baron, assumed the role of Chief Justice. At the time of his appointment, the Bench was staffed by Justices Twisden, Rainsford, and Morton. Morton died in 1672, replaced the following year with William Wilde, previously of the Court of Common Pleas. Hale was one of the most interventionary Chief Justices of the Restoration. Under Hale, King’s Bench heard seventy-three applications for writs seeking the Bench’s intervention in the Church courts; sixty-three applications for writs of prohibition, and ten applications for writs of mandamus. Hale’s Bench granted thirty-two writs of prohibition and eight writs of mandamus, electing to intervene in the ecclesiastical jurisdiction at a rate of 55%. In short, Hale’s Bench heard almost as many writ applications as Kelyng’s, and granted writs at a significantly higher rate; the Bench repeatedly asserted its power to oversee the Church courts, and exercised this power regularly to intervene in the operation of the rival jurisdiction. Hale accompanied this with a propensity to use his office to threaten ecclesiastical personnel.

27 The King against Warters (1670) 116 ER 84, 455. 28 The King against Hayworth (1670) 118 ER 84, 455-6. 194

Hale’s Bench will also be the focus of Section II of the following chapter, where we will explore in detail his judgment in Taylor’s Case, likely the most famous Restoration case. There, we will see how Hale built a landmark judgment on religious slander that avoided Clarendon Code legislation and was firmly entrenched in his practice of reducing the ecclesiastical jurisdiction, expanding the common law into work once the domain of the Church courts. Given Hale’s broader significance to this thesis, and the way in which a study of Hale’s work as Chief Justice in this chapter provides background for the investigation of Taylor’s Case in the next, our focus on his work here is disproportionately extensive.

Under Hale, the King’s Bench developed two strategies for intervening in the work of the ecclesiastical courts. The first was through dictating how ecclesiastical courts were required to respond to particular matters through the use of writs of mandamus to command acts of ecclesiastical personnel. Second, the Bench issued writs of prohibition to either quash an ecclesiastical judgment, or to remove a matter from the ecclesiastical jurisdiction and bring it into the common law. In deploying writs of prohibition, Hale and his judicial colleagues framed the common law in similar terms to Kelyng’s Bench, as a jurisdiction with exclusive right to hear temporal and customary matters.

We can see the first strategy clearly in two cases involving church wardens. Matters relating to the staffing and administration of churches, including the appointment and governance of church wardens, were conventionally matters for the ecclesiastical courts. Under Hale, however, the King’s Bench claimed oversight of such cases, dictating how the ecclesiastical courts had to act, and restricting the boundaries of the Church courts. Though Hale and his fellow justices offered no explicit justification for this novel King’s Bench practice, they hinted at an explanation. Hale claimed that as church wardens were statutory appointments, their cases belonged to the common law. Such a claim is factually inaccurate: as we saw in Chapter 4, there was a long history of statutes passed regarding heresy, a crime always tried in ecclesiastical courts. The bare falsehood is a first indication of the aggression of Hale’s bench: quick to misrepresent law if it enabled the colonisation of the ecclesiastical courts by common law.

In Anonymus (1671), one of the first cases Hale heard as Chief Justice, two church wardens- elect sought a writ of mandamus for their instatement. They had been elected to the position 195 by their parish, but the local bishop had refused to swear them in, claiming that the church’s parson selected the warden, and could only select one. The wardens-elect claimed that it was customary that two wardens were elected. Consistent with Hale’s reverence for preserving historical customs in his written work, Hale’s Bench affirmed the custom and forced the bishop to accept both.29 In Anonymus (1674), one of Hale’s final cases, King’s Bench was even more assertive regarding the ecclesiastical courts. The case again centred on a church warden-elect seeking a writ of mandamus for his instatement to the office. The warden was elected by the parish, but his appointment was denied by the Archdeacon of Norwich, who claimed that canon law provided that the parson, not parish, chose the warden.

In a clear assertion of the common law’s superiority to ecclesiastical law, the King’s Bench declared that custom overrode canon law, and that canon law held little authority in relation to church wardens, for their office was statutory, and thus protected by the common law, not ecclesiastical law. Closing, the justices warned the Archdeacon ‘take heed’ to avoid disturbing the church warden once he was sworn in, for he held office by mandate of King’s Bench.30 We get a sense in this second judgment of the confidence of Hale’s Bench in addressing the ecclesiastical courts, and the disregard with which they held their rival jurisdiction. Not only did the justices send the Archdeacon on his way with a warning, but they articulated a jurisdictional hierarchy in which custom – the preserve of the common lawyers – was superior to canon, the law practised in the ecclesiastical courts.

Hale’s Bench also wielded writs of prohibition to overturn Church court judgments, and in these cases emphasised that temporal matters were outside the province of the ecclesiastical courts. In another 1671 case, Anonymus, Hale’s King’s Bench overturned the excommunication of a church warden who had refused to take an oath of office as prescribed by his local bishop. The oath, Hale’s Bench explained, was not permissible, as it made reference to ‘common sowers of sedition’. Sedition, the Bench claimed, was not an appropriate subject for the ecclesiastical jurisdiction, given its temporal focus; it belonged to the common law, and thus the oath, and a trial on the basis of it, were invalid.31

29 Anonymus (1671) ER 86, 79. 30 Anonymus (1674) ER 86, 179. 31 Anonymus (1671) ER 86, 78-9. 196

A similar problem was central to a further 1671 case, also recorded only as Anonymus. In this case, a church warden applied for a writ of prohibition after an ecclesiastical court had required him to swear an oath obliging him to disclose whether any of his parishioners were an ‘adulterer, or filthy talker, sower of sedition, faction, or discord amongst their neighbours’. Hale’s King’s Bench ultimately declined to provide the writ, as the oath prescribed no punishment should a parishioner fail to disclose such behaviour. The Bench noted, though, that questions of sedition fell outside the scope of the ecclesiastical jurisdiction, and that a writ would have been provided if punishment was prescribed.32

Arguments that the common law had an exclusive jurisdiction in temporal and customary concerns also grounded Hale’s Bench’s use of writs of prohibition to remove matters from the ecclesiastical courts into the common law. The Bench was slow to wield this power, though, reticent to grant writs to transfer the jurisdiction of a case in the early years of Hale’s term as Chief Justice. But even these more cautious judgments featured clear explications of where the Bench would intervene; the matter was clearly a consistent consideration for the justices. A prohibition was denied in Anonymus (1671), for example, and the judgment featured a clear explication of where the King’s Bench would intervene to grant one. Here, a writ of prohibition was sought to halt an ecclesiastical suit for a pension. The writ application claimed that the pension was sought in relation to monastery lands, but these belonged to the king, and Henrician legislation prevented pensions from being claimed on monastery lands.

The Bench declared they would only grant the prohibition if the letter patent to this effect was produced, but noted that if it could not be, the case would become one of custom; whether by prescriptive right pensions were awarded in relation to these particular monastic lands. If the case became one of prescription, though pensions ‘might be sued for in the Ecclesiastical Court’, the matter would fall within the common law, which could provide ‘remedy’.33 Hale’s Bench granted a prohibition in a case later that year. In yet another case titled Anonymus (1671), a writ was prayed to halt a suit brought by an apparitor – an officer working for an ecclesiastical court – for payment. The writ application held that such payment was not owed by custom. Hale’s Bench granted the prohibition on the basis that matters of custom fell outside the

32 Anonymus (1671) ER 86, 87-8. 33 Anonymus (1671) ER 86, 83. 197 ecclesiastical law, and recommended the apparitor seek payment in the common law, for ‘they may sue there for their due and customary fees’.34

We can see the extent of Hale’s Bench’s early caution regarding the Church courts in William Juxon against the Lord Byron (1672). Here, the Bench endorsed the spiritual courts hearing temporal matters where they were incidental to ecclesiastical causes, an argument Kelyng’s Bench had fiercely rejected in The King against Patrick, though Foster’s Bench had endorsed in Butler against Yateman. The suit involved land mortgaged to Juxon by statute, on which Lord Byron had sued in ecclesiastical court for tithes. The presiding ecclesiastical court had granted Byron the tithes, and Juxon sought a prohibition from King’s Bench to overturn the judgment. Juxon pled on two grounds. First, the ecclesiastical court ‘is not to meddle’ with statute.

Second, in meddling with statute, the Church court had proceeded on a ‘temporal matter’ in a manner ‘contrary to the course of the common law’, which would have followed statute in such a case. In denying the prohibition, Hale accepted this latter claim with slight qualification: the ecclesiastical court might hear matters ‘cognizable at common law’ where the ‘principal’ of the matter was ecclesiastical, and prohibition would be awarded if the ecclesiastical court proceeded on a ‘temporal matter otherwise than the common law would’. Juxon, though, had misunderstood the statute, for Byron retained a capacity by it to claim tithes. Here, at least, the ecclesiastical court had proceeded ‘the same’ as a common law court would have.35

By 1674, though, Hale’s Bench was regularly mobilising prohibitions to turn matters over to common law. In Subchantor against The Archbishop of York, the Bench heard a writ application regarding an ecclesiastical suit brought by a subchantor, a member of a Church choir, for a pension. The subchantor’s claim was that pensions were paid in these circumstances ‘time out of mind’, but Creswell Levinz, the barrister and court reporter representing the Archbishop, sought a prohibition to claim that the Church court was the inappropriate jurisdiction for the suit. ‘[P]ayment immemorial’ was ‘form’ only in common law courts, where the suit belonged, not before a Church bench. Agreeing with Levinz, Hale’s Bench granted a prohibition.36 Hale’s Bench granted a prohibition on similar grounds in Brown against Palfry

34 Anonymus (1671) ER 86, 112. 35 William Juxon against The Lord Byron (1672) ER 83, 451-2. 36 Subchantor against the Archbishop of York (1674) 103 ER 84, 788. 198

(1674). There, a prohibition was sought by residents in a parish in Northumberland who were defendants in a suit, which demanded they pay fees for the repair of their parish church. They claimed that by custom, they attended and funded a chapel in another parish. Given the dispute regarded custom, Hale’s Bench granted a prohibition, the justices declaring that Church courts ‘could not try customs’.37

Similar arguments grounded the judgment in Anonymus (1675). A church warden had brought an ecclesiastical suit demanding payment for the burying of a man in the body of a church, claiming that such a payment was owed to him by custom. A prohibition was sought from the King’s Bench to deny any such custom. This writ was in turn opposed by the ecclesiastical court presiding over the church warden’s case, which claimed that ‘no remedy’ was available in any jurisdiction other than the Church’s. Hale’s Bench responded sternly: ‘if the custom be denied… a prohibition was to go’. Hale’s Bench thus awarded a prohibition in order that the common law try the custom in question.

In perhaps a telling note in the report, Peyton Ventris, common lawyer and future Justice of the Common Pleas, noted that the case appeared twice in court, as it was adjourned first. It was only the second time, with ‘Hale Chief Justice being present’, that the prohibition was awarded. Hale himself handed down the judgment and criticised the ecclesiastical courts in this process, noting that a prohibition was being granted for the inconsistency with which ecclesiastical courts approached prescription. Unlike the common law courts, for whom prescription was exclusively those practices before time of memory, the ecclesiastical courts ‘have sometimes allowed prescriptions of twenty years, sometimes of forty years’.38

A further 1675 case, Richardson versus Disborow, shows an even clearer explication of the role Hale’s Bench cast for the common law courts. Here, a writ of prohibition was requested for an ecclesiastical case regarding a legacy. Richardson, who owed money to Disborow, had sought a prohibition, claiming that he had no money to pay the legacy. He had a witness to confirm this, but this witness’s testimony was ignored by the presiding ecclesiastical court as it was ecclesiastical court practice to only take witness statements when at least two witnesses were available. The ecclesiastical court argued against a prohibition, asserting that the matter

37 Brown against Palfry (1674) ER 83, 470. 38 Anonymus (1675) ER 86, 183. 199 was ‘within their cognizance’, so should be governed by ‘their own law’. Hale’s King’s Bench rejected this claim justifying a prohibition with two arguments. First, a requirement of two witnesses risked causing ‘great mischief’, and secondly, that as the matter was ‘temporal’, the ecclesiastical courts should not deny a common law court from hearing the case.39

Hale’s Bench’s treatment of nonconformity was notable, for the justices engaged with the Clarendon Code legislation in a manner significantly different from the approaches of the preceding Bench’s. Hale’s Bench revealed an ambivalence towards the statutes: on one hand, Hale in particular sought to exonerate justices of the peace who took no action regarding nonconformity; on the other, the Bench repeatedly upheld Clarendon Code statutes in trials of nonconformists. Where Hyde and Foster had looked to quash indictments under the legislation against dissent, and Kelyng’s Bench had convicted only one person, Hale and his fellow judges repeatedly upheld such convictions. The crucial explanatory context here is that Hale was the sitting Chief Justice when Charles attempted to implement his Royal Declaration of Indulgence; the partial suspension of the penal laws against religion.

Hale detailed his opposition to the Declaration in his notes on Taylor’s Case as an illegitimate act by a monarch who could only make law regarding religion alongside parliament.40 This explicit opposition to the Royal Declaration, and Hale’s denial that the king could make law alone in his writings on law, suggests we cannot see this reliance on the Clarendon Code as a simple example of judicial subordination. Rather, Hale’s reliance on the statutes against nonconformity that Charles had attempted explicitly to suspend suggests a repudiation of the king, and a denial of the idea he could make law alone; a strategic alignment with parliament, not a concession of subordination to the lex scripta. Unlike the preceding Restoration Chief Justices, Hale held office through a much sharper period of dispute between king and parliament regarding the Clarendon Code, and his reliance on it can be seen as an affirmation of parliament’s power in passing legislation, in defiance of the king. The ambivalence of Hale’s Bench thus manifested in attempts to avoid the Clarendon Code where possible, in relation to justices of the peace, and where confronted with nonconformists, a defence of parliament’s role as a law-maker.

39 Richardson versus Disborow (1675) ER 86, 188. 40 Matthew Hale, Lambeth Palace Library MS 3478, 36. 200

We can see this ambivalence regarding justices of the peace in two 1671 cases. The first of these was recorded in a particularly confusing manner. Keble reported on the case as Revell and Vere against Heal and Balstaff,41 but also as Reynell against Heal,42 and Heale, Vere, against Reynell, Baston,43 while Ventris recorded the case as Reynell versus Heale.44 The JP, Heal, had been informed by Reynell of three conventicles, all in violation of the Conventicle Act, and had taken no action to investigate them. Heal’s lawyer pled his innocence on two grounds. First, there was ‘no breach of duty in the justice’ for not pursuing the allegations of conventicles, and second, the matter was improperly brought: it should not have been between informant and JP, but king and JP. The first claim was ambitious, for the Conventicle Act provided that JPs ‘omitting their Duty’ were required to pay a 100 pound fine.45 Hale’s Bench ignored the first claim, responding instead to the second point, with which they agreed: the case was ‘misjoined’ in being between informant and JP. A repleader (a second pleading) was ordered; Heal would need to plead again on the case once the correct indictment was brought.46

The Bench heard a similar case later that year: Baldwin against Forth. The case was adjourned after first hearing and neither Keble, nor any other reporter, reported it upon its resumption. It reveals, though, some key differences with the previous case, centreing on Hale’s desire to acquit the JP in question. Prior to adjournment, Hale himself argued that the JP had committed no offence. The ‘Statute of Conventicles’, he argued, ‘relates to the offence of the conventicle, not to the default of the justices’.47 Hale’s claim here is interesting because it is so bluntly false: the statute directly addressed the performance of JPs. Hale, though, claimed it did not, a clear attempt to obviate statute law regarding nonconformity. Though what became of the case remains unclear, Keble’s report here shows a willingness by Hale to ignore statute where possible, even if he did so on the basis of so obvious a falsehood.

Though Hale sought to deny the Conventicle Act in 1671, his Bench affirmed the laws against nonconformity repeatedly in 1675, following Charles’s attempted Royal Declaration of Indulgence. The Declaration had been withdrawn two years earlier, but as Hale’s notes on Taylor’s Case attest, he was still concerned with denying its legality in 1675. Less an

41 Revell and Vere against Heal and Balstaff (1671) 38 ER 84, 483. 42 Reynell against Heal (1671) 47 ER 84, 555. 43 Heale, Vere, against Reynell, Baston (1671) 22 ER 84, 498. 44 Reynell versus Heale (1671) ER 86, 84. 45 ‘Charles II, 1670: An Act to prevent and suppresse Seditious Conventicles’. 46 Reynell versus Heale (1671). 47 Baldwin against Forth (1671) 36 ER 84, 504. 201 affirmation of the king as possessed of an exclusive law-making power by virtue of holding sovereign office, the Bench’s judgments in these cases reflect an assertion of the limitations of sovereign office, for the law the Bench upheld was that passed by king and parliament together. Implicit in these judgments is a critique of Charles: the king could not pass law alone, and his attempts to do so were irrelevant to judicial office.

The first of these cases was Dominus Rex and Fenton, which despite being repeatedly adjourned, was reported in full. The case involved five men charged with failure to attend church under the Elizabethan Act of Uniformity,48 which demanded church attendance, and which had been confirmed and expanded on in the 1662 Carolingian Act. Multiple arguments against a conviction were brought, including the claim that some among those charged were not at the time inhabitants of England.49 The court rejected such defences, finding for the king, and convicting the accused of recusancy.50 In Low and Hayward, the offending party was charged and fined under the Conventicle Act, and King’s Bench upheld his conviction, confirming his ‘debt lieth’.51 Hale’s Bench’s engagement with the Clarendon Code was thus selective, relied on to pursue a particular strategic end: the repudiation of sovereign law- making.

With Hale’s retirement at the end of 1675, Rainsford was appointed to the office of Chief Justice the following year, his vacant position on the Bench filled by Thomas Jones, a barrister who had practiced in King’s Bench. Rainsford’s tenure as Chief Justice was short-lived: appointed in 1676, he was dismissed only two years later in May 1678. His term as Chief Justice was consistent with Hale’s in regard to the ecclesiastical courts, for he exercised his office through the subordination of ecclesiastical to common law courts, using writs of prohibition to remove cases from the ecclesiastical jurisdiction into common law.

Rainsford’s Bench intervened in the ecclesiastical courts at an even greater rate than Hale’s. In twenty-seven applications for writs of prohibition and one for a writ of mandamus, Rainsford’s Bench granted the requested writ sixteen times, at a rate of 57%. Though Rainsford’s Bench heard less writ applications overall than Hale’s, Rainsford held the office of Chief Justice for

48 ‘An Acte for the Uniformitie of Common Prayoure’, in John Raithby, ed., Statutes of the Realm: Volume 4, Part 1 (London: 1819), 355-8. 49 Dominus Rex and Fenton (1675) 12 ER 84, 859. 50 Dominus Rex and Fenton, and C (1675) 45 ER 84, 870. 51 Low and Hayward (1675) 38 ER 84, 901-2. 202 three years less than Hale. Indeed, under Hale and Rainsford, King’s Bench heard writ applications at a rate of approximately fourteen a year, consistently affirming King’s Bench’s authority over the Church Courts. As the Bench had under Kelyng and Hale, King’s Bench under Rainsford justified its interventions in the ecclesiastical jurisdiction through a rhetorical framing of common law as a jurisdiction concerned with temporal matters and the adjudication of custom. Once more, judicial office was presented as grounded in the policing of the temporal, a task to which the determination of the customary practices of the realm was crucial.

We can see this positioning of common law judicial office in the judgment in Wife against Creeke (1676). A writ of prohibition had been sought in relation to an ecclesiastical suit involving the churchwardens in the parish of Adderbury. The churchwardens had brought a suit against the inhabitants of the village of ‘Bodecut’ (Bodicote, in ) to pay for church repairs. The Bodicote residents, though, sought a prohibition on the grounds that ‘time out of mind’ they had not paid for church repairs in Adderbury, for they had their own ‘chapel parochial’. The case had been heard by an inferior court, which had granted the writ, but Rainsford’s King’s Bench now heard the case on appeal. The churchwardens’ lawyers appealed on three grounds.

First, by ‘common right’ all parishioners were required to pay for church repairs, and a prescription was insufficient to erase this. Second, even if the inhabitants of Bodicote funded the repairs to their parochial chapel, this did not discharge their duty to the Adderbury church, though could reduce the amount they were required to pay. Third, the custom could be tried ‘in the Spiritual Court’, so no prohibition was necessary. As we have seen in previous cases, this argument was carried out through extensive citation of precedent; consistency with past case law was assumed by all parties to be the best basis for adjudication. A consistent feature of court practice was that judicial office was precedent-bound.

Indeed, it was to precedent, too, that the lawyer for the Bodicote inhabitants turned. On his rival reading of precedent, Levinz claimed that a prohibition was demanded by the circumstances of the case. Levinz and the other lawyers representing the Bodicote residents accepted the first claim of the lawyers representing the Adderbury churchwardens, agreeing that it was insufficient that a mere prescription might discharge a duty to pay. Regarding the second point, though, they contended that a ‘good’ prescription, as was the custom in this case, could discharge a duty to pay. On the third claim, that ecclesiastical courts might try custom, 203 the Bodicote lawyers objected: where ‘a custom comes in dispute, the custom is temporal’, and therefore ‘must be tried in the Temporal Courts’, as Church and common law ‘differ in the very essence of customs’. Rainsford and his colleagues agreed entirely with Levinz’s claims, granting the prohibition and aligning themselves with an account of their jurisdiction as built upon custom and focused upon the temporal.52

In Case 347B (1678), the Bench distinguished the work of the common law courts from the moral reform provided in the Church’s jurisdiction. An unnamed woman had been slandered as a ‘whore’, and the slanderer now sought a prohibition on the basis that it was ‘a word of heat and passion’, not an intentional act of defamation. The Bench awarded a prohibition, agreeing with the suggestion that the word was not meant deliberately, and in the process of deliberations, Justice Wilde drew a key distinction between jurisdictions. The common law courts, he explained, were ‘for damages’, while the ecclesiastical courts were ‘pro reformatione morum’; the former temporal, the latter spiritual.53

This distinction between a temporal common law and spiritual ecclesiastical law, and Rainsford’s Bench’s willingness to mobilise this distinction to the advantage of common law, can be observed in Cory against Pepper, heard shortly before Rainsford’s dismissal in 1678. The case involved an application for a writ of prohibition to turn over to common law an ecclesiastical suit against a school teaching without having been licensed by an Ordinary, ‘in contempt of the canons’. Rainsford’s Bench granted a consultation – a requirement that the parties seek greater legal advice – rather than a prohibition, but made crucial statements on the relationship between common and Church law.

The Bench noted that teaching without a licence was not only a violation of ecclesiastical law, but was also against the Act of Uniformity, which mandated a fine for such offences. Given that the Act was in force, the Bench declared ‘the suit must be at common law’. In other words, the Act of Uniformity was cited to defend an expanded common law. The statute did not remove the Church’s jurisdiction, though, for Rainsford’s Bench acknowledged that it ‘does not take away the jurisdiction of the Spiritual Court’, which could still ‘proceed upon the canons’. The

52 Wife against Creeke (1676) ER 83, 510. 53 Case 347B (1678) 347B ER 89, 214. 204

Bench, though, offered a warning: if the Church courts were to ‘impugn the common law’ in their administration of the canons, a prohibition would go.54

Reading Cory against Pepper and Wife against Creeke together, we get a rich sense of the positioning of common law effected by Rainsford’s Bench. In Wife against Creeke, the Bench presented its jurisdiction as temporal and customary. In Cory against Pepper, it claimed that the Act of Uniformity gave it a jurisdiction over religious nonconformity. As we saw in the previous chapter, the Act of Uniformity was framed in a rhetoric of temporal and spiritual harm, and it was the language of temporal harm, in particular, that came to define the statute law against religious dissent. The implication of Cory against Pepper was thus that as the common law was a jurisdiction for the administration of temporal concerns, statutes framing religious nonconformity in temporal terms provided the common law with jurisdiction in such matters; the statute law that progressively occluded the Church’s salvific concerns enabled the common law to juridically marginalise the Church.

Though Cory against Pepper did not deny jurisdiction for the ecclesiastical courts, it endorsed it only in terms set and policed by common law; it was a secondary jurisdiction to a common law which policed religious nonconformity on the authority of statute. There is a consistency here between Rainsford’s Bench and Hale’s. Both endorsed the Clarendon Code statutes as authoritative in common law courts, and both enthusiastically mobilised writs of prohibition to turn matters over to common law. If there was in these cases an alliance between King’s Bench and legislation, it was less evidence of subordination than of a tactical engagement with legislation for the judiciary’s own ends: for Hale, to deny to Charles an exclusive law-making power; for Rainsford, to intervene in the Church courts and claim oversight in nonconformity trials. Both Hale and Rainsford shrunk the Church of England’s jurisdiction through aggressive deployment of writs of prohibition and the hearing of nonconformity accusations, once the sole preserve of Church courts.

Rainsford was dismissed as Chief Justice in 1678, replaced by William Scroggs. In 1679, William Dolben and Francis Pemberton both joined the Bench, though Pemberton was dismissed the following year, in turn replaced by Thomas Raymond. We encountered Scroggs in Chapter 3, and noted there that his rhetoric of judicial office underwent a significant shift

54 Cory against Pepper (1678) ER 83, 528. 205 over the course of the 1670s. In 1676, he had defended the independence of the judiciary as entrusted with administering the relationship between the king’s prerogative and subjects’ liberties. By 1678, upon his appointment to King’s Bench, he was defending the total subordination of judicial office to the monarch, and declaring that prerogative and liberties were not to be balanced, but the former upheld as guarantee of the latter. Scroggs’s work on the Bench is thus an exceptional testing ground for the reliance of the common lawyers upon the king’s statutes.

If Scroggs exercised his office as he described in assuming the office of Chief Justice, as fully subordinate to the crown, we might expect a close adherence to statute. Indeed, such a finding would give support to those historians who have seen the legislative process as the key to understanding law. We have so far seen only occasional reliance on the statutes of the Clarendon Code. Scroggs, for all his talk of judicial subordination, led a Bench that had limited engagement with the Clarendon Code; his work as a justice was not defined by clear reliance on statute law. The legislation against religious nonconformity was cited once by King’s Bench during Scroggs’s tenure as Chief Justice, and it was subject to extensive disagreement.

Some judges considered it in the same terms as Rainsford’s Bench had: to justify the new jurisdiction of the common law in matters of nonconformity. For these justices, statute was cited to justify the common law’s imposition in matters once the preserve of the Church courts. It served principally as a weapon to empower common law relative to ecclesiastical law, not to empower the king in relation to the common law judiciary. Scroggs himself did not follow this argument, but equally engaged with statute in a manner unreflective of subordination. For Scroggs, statute was merely declarative of common law. This is a sharp divergence from his rhetoric of judicial office as fully subordinate to the king. If statute made by the king and parliament merely made explicit law what was already within the common law, then the king’s role in law-making was secondary. In their exercise of judicial office, even the strongest defenders of the king marginalised statute.

This dispute over statute between the justices of Scroggs’s Bench arose in Hill against Barne (1679), as it was recorded by Levinz, or Hill against Boomer, as recorded by Jones and the common lawyer Bartholomew Shower. Here, Scroggs’s Bench contemplated granting a writ of prohibition for an ecclesiastical suit to remove a parson from office on the grounds that he had not been ordained as a priest. The defendant in the ecclesiastical suit sought a prohibition 206 claiming that it was customary to grant the office of parson to the unordained. The plaintiff disagreed. Scroggs’s Bench, though, approached the matter from a different angle: the key question for them as to whether they would grant a prohibition or not was whether the Ordinary was the appropriate officer to try the case, or whether the suit ought to be heard in a common law court. To this end, the Bench noted that the relevant statute was the ‘Statute of Uniformity’, which set out that those who ‘are not priests are disabled to have livings’,55 for ‘none without Episcopal ordination shall be admitted to any benefice’.56

The justices disagreed, though, over what this meant. For Jones, regardless of the statute, ‘this case ought to be by the bishop’. For Pemberton, because of the statute, ‘the suit ought to be’ at common law. Scroggs made a different claim, one that read down the significance of statute: ‘I take the statute to be declarative of the common law’. If the statute simply declared an existing legal situation, then the matter fell to the Church courts, which had always addressed such problems; the statute did not create a fresh jurisdiction for common lawyers. Scroggs thus diminished statute; it merely made explicit the ancient unwritten law of England. Justices Jones and Dolben disagreed, arguing that the statute was not declarative, and the common law now held a jurisdiction.57 After extensive debate, the judges awarded a prohibition.58

Scroggs’s Bench was far more willing than preceding Benches to deny writs of prohibition. Not only did Scroggs and his judicial colleagues hear significantly fewer requests of writs, they granted writs at a substantially lower rate. Though Scroggs’s Bench granted the only writ of mandamus requested regarding the ecclesiastical courts, the Bench granted only five of eighteen requested writs of prohibition. From a Restoration high under Rainsford of the King’s Bench intervening 57% of the time, Scroggs’s Bench intervened in the ecclesiastical courts at a mere rate of 32%. Though Scroggs’s Bench was more generous towards the Church, the judges relied on an identical rhetoric to preceding Benches to delineate the ecclesiastical and common law jurisdictions.

As the earlier Benches had, Scroggs and his judicial colleagues described the common law as temporal and ecclesiastical law as spiritual. In Browne against Averie (1678), the Bench used

55 Hill against Barne (1679) ER 83, 542. 56 Hill against Boomer (1679) ER 84, 1182. 57 Hill against Boomer (1679) 39 ER 89, 788-9. 58 Hill against Boomer (1679) ER 84, 1182. 207 identical language to Rainsford’s Bench in administering this jurisdictional boundary. Browne had accused Averie of being a ‘whore’ and an ‘old whore’, for which she brought an ecclesiastical defamation suit. Browne sought a prohibition from the Bench claiming that Common Pleas typically provided them in such cases. Scroggs’s Bench denied the writ, explaining that such slander belonged to the ecclesiastical jurisdiction, for while the common law redressed damages, ecclesiastical courts existed ‘pro reformatione morum’.59

Scroggs’s term as Chief Justice marked a divergence from the approaches of Hale’s, Rainsford’s, and Kelyng’s Benches. Scroggs’s Bench was much more reluctant to treat the Church courts as aggressively as these earlier judges had, but the judiciary sustained the rhetorical framing of this jurisdictional boundary. The relationship of King’s Bench to the Clarendon Code also transformed over the course of the 1670s. In the , King’s Bench had been unwilling to engage with the Clarendon Code legislation, but the King’s Benches of the 1670s took a different approach. Hale’s Bench increasingly endorsed statute law in explicit rebuke of Charles II. In doing so, Hale positioned his exercise of office as consistent with a key aspect of his rhetoric: he had denied that the king could make law alone, but required parliamentary consent to legislate, and Hale’s exercise of office endorsed those laws passed through parliamentary involvement. In so opposing Charles, Hale affirmed the judiciary’s independence.

Like Hale, Rainsford’s Bench deployed legislation strategically to advance the position of the common law judiciary, using it to buttress their assault on ecclesiastical law. Though Scroggs’s Bench offered almost no engagement with statute law, the justices offered a variety of positions, none of which positioned the king or parliament as hierarchically superior to the judiciary. For Scroggs, statute only declared what was already held in the common law, so was a secondary law to the lex non scripta over which the common lawyers presided. For Pemberton, who had made similar arguments as part of Rainsford’s Bench, the Act of Uniformity granted common lawyers jurisdiction regarding nonconformity. In no cases did the exercise of judicial office suggest a subordination to higher powers, even as Charles’s willingness to dismiss justices increased. III

59 Browne against Averie (1678) 15 ER 89, 770. 208

Scroggs was dismissed in 1681, only three years into his term as Chief Justice, and his dismissal preceded increasing instability in the King’s Bench; the final years of Charles’s reign, and the entirety of James’s reign, were characterised by a shocking degree of judicial turnover. Pemberton was reappointed to King’s Bench as Chief Justice following his dismissal from the Bench the year before. He was again dismissed in 1682, though, replaced by Edmund Saunders, who died in 1683, replaced in turn by George Jeffreys, who left office in 1685, when he was appointed by James II as Lord Chancellor. Jeffreys was replaced by Edward Herbert, who was himself moved to Common Pleas two years later, replaced by Robert Wright. In just seven years, five justices held the office of Chief Justice.

This instability on the Bench extended beyond the Chief Justice. Twisden, the longest serving justice of the Restoration, died in 1683, as did Raymond. The same year, Dolben was dismissed and Jones sent to Common Pleas to serve as Chief Justice. Thomas Walcot, Francis Wythens, and Richard Holloway were appointed to the vacant positions on the Bench. Walcot died in 1685, Wythens was dismissed in 1687, and Holloway in 1688. Robert Wright, appointed in 1685, moved to Common Pleas in 1687, then back to King’s Bench only eight days later. Thomas Powell, appointed in 1686, was dismissed in 1688, and Richard Allibond, appointed in 1687, died in 1688. Three new justices, John Powell, Robert Baldock, and Thomas Stringer, were appointed in 1688, the final year of James’s reign. Given this instability, this section does not follow the terms of particular Chief Justices, as previous sections did; a structure possible because the earlier iterations of King’s Bench had relatively stable personnel for periods. The 1680s were defined by a lack of consistent personnel on the Bench.

This period is especially significant, for the King’s Bench of the 1680s operated at a time of increased antagonism between Bench and crown. As we can see from the dismissals, both Charles and James exercised their ability to dismiss judges durante bene placito regularly, in a clear attempt to control the Bench. Accompanying this antagonism between Bench and crown, in 1687, James also introduced his Royal Declaration of Indulgence, renewing the conflict over whether the king could make law alone. The common lawyers were key to this dispute, for in administering law they arbitrated what constituted law. The King’s Bench of the 1680s, perhaps more than in previous decades, was presented with an explicit challenge over whether it would follow the king’s will, or seek to ground itself independently.

209

The Benches of the 1680s maintained a consistency with the approach of King’s Bench under Scroggs towards the ecclesiastical courts. The justices continued to delineate the jurisdictional boundary in terms of a common law centred on temporal and customary matters, and an ecclesiastical law focused on spiritual reform. But they rarely deployed this distinction to intervene in the ecclesiastical courts, removing few matters from the Church’s jurisdiction into the common law’s. Of twenty-nine applications for the Bench to grant writs of prohibition to the ecclesiastical courts, King’s Bench granted only nine, and only two of four applications for writs of mandamus regarding the Church courts. Between 1681 and 1688, the Bench granted writs at a lowly rate of 33%.

Bonsey against Lee (1682) offers an excellent example of a case in which King’s Bench granted a prohibition. A writ of prohibition was sought for an ecclesiastical suit for tithes, on the claim that, as the matter turned on land granted by letters patent, the case was a matter for common law. The case had already been heard in the Court of Common Pleas, which had granted a prohibition, arguing that disputes involving letters patent fell to common law. Levinz, the barrister arguing against a prohibition, deployed an argument we saw particularly from Foster’s Bench in Butler against Yateman and Hale’s in William Juxon against The Lord Byron.

Levinz claimed that where ‘a temporal matter falls in question incidentally, the Ecclesiastical Court shall try the temporal matter so long as they proceed as the temporal law would’. In other words, ‘so long as they proceed therein according to the common law’, a prohibition need not go. Levinz did not cite Butler against Yateman as precedent, but he cited William Juxon against The Lord Byron. Pemberton’s Bench, though, rejected Levinz’s argument and granted a prohibition.60 In his report of the case, Levinz did not record the precedents cited by the Bench in doing so, but we have seen multiple instances of the Bench during the Restoration asserting an exclusive province in the temporal. There was, in other words, significant precedent for the decision to deny any jurisdiction in the temporal, even incidentally, to the Church courts.

In James against Trollop (1685), King’s Bench heard another appeal regarding a decision by the Court of Common Pleas to grant a writ of prohibition. Again, the ecclesiastical suit the prohibition was sought in regard to related to tithes. The prohibition had been granted in Common Pleas on the claim that the tithing in question was by custom. We have encountered

60 Bonsey against Lee (1682) ER 83, 583. 210 a version of this argument repeatedly, beginning with Kelyng’s Bench in the 1660s: matters of custom fell to common law, so a prohibition was appropriate in such cases to remove the matters to the common law. In the wording of Shower’s case report, the tithes originated in a composition regarding land made in 1125, ‘in time before the memory of man’.

It was now contended before the King’s Bench, though, that the tithes originated in the Lateran Council of 1215, or from Henry VIII’s dissolution of the monasteries; they were within the time of memory, and were thus not customary, and a prohibition was inappropriate. The King’s Bench rejected the appeal, noting in the course of the judgment that ‘the Council of Lateran can affect nothing in this matter’ for to claim ‘an ecclesiastical constitution can institute and create a temporal right is somewhat strange’.61 We see here a recitation of two arguments deployed regularly by the Restoration King’s Bench: matters temporal and customary were the province of common law, and prohibitions would go where the Church courts sought to meddle in such affairs.

Rapid judicial turnover, though, meant that there was instability in the Bench’s understanding of the common law-ecclesiastical boundary, and such grants of prohibition were exceptional. We can see this by comparing two other 1685 cases, like James and Trollop both heard during the reign of James II. James against Trollop was heard by Chief Justice Herbert alongside Justices Wythens, Holloway, and Wright. The same line-up of justices heard Anonymous (1685), in which a writ of prohibition was sought for an ecclesiastical defamation suit. A woman had been called a ‘a bitch, a whore, an old bawd’, and a prohibition was sought as ‘some of the words were actionable’ at common law, and thus had to be heard in that jurisdiction, while the other words were tried in a Church court. No jurisdictional division was possible according to the Bench: Chief Justice Herbert explained a prohibition would have to go for the ‘entire sentence’, as the words were ‘spoken all together at the same time’.62 As in James and Trollop, temporal matters fell to common law always, and where temporal and spiritual were intertwined, the common law had jurisdiction.

Before Herbert sat on King’s Bench, though, Jeffreys had held office as Chief Justice, and a Bench composed of him and Justices Wythens, Holloway, and Walcot offered a very different

61 James against Trollop (1685) 395 ER 89, 1028-9. 62 Anonymous (1685) 38 ER 87, 48. 211 approach to the common-ecclesiastical law relationship. In Roberts against Pain (1685), Jeffreys’s Bench affirmed the independence and importance of the ecclesiastical courts, and acknowledged a right in the Church’s jurisdiction to even try temporal matters. Roberts against Pain involved a prohibition application regarding an ecclesiastical suit against a priest in the Court of Arches, in Canterbury. The man had been ordained as a priest before he was twenty- three, impermissible by statute.

The basis for the prohibition, it was claimed, was that the case concerned a ‘deprivation’, for the priest would lose his office, which constituted a ‘temporal loss’, and thus belonged ‘not in the Spiritual Court’. In response, the Bench claimed that although ‘a temporal loss may ensue’, no prohibition would go, for such matters ‘are usually punished in the Ecclesiastical Courts’. Moreover, ‘if prohibitions should be granted in all cases where deprivation is the consequence of the crime, it would very much lessen the practice of those Courts’.63 The common law judiciary was not pre-eminent, but one of a number of jurisdictional authorities, charged only with administering the boundaries between equal and independent legal jurisdictions.

We saw, in particular from Hale’s Bench, a tactical reliance on legislation as an assault on the contention that the king could make law alone. Though the King’s Bench judiciary of the 1680s was reticent, compared to Hale, to intervene in the Church courts, their repeated reliance on the statutes against nonconformity suggests a parallel with Hale’s Bench. There are two important contexts to appreciate here. First, the last years of Charles’s reign were characterised by his refusal to call parliament due to their attempt to expand the laws against nonconformity to exclude James from the throne. Second, from 1685, a Catholic was enthroned, an obvious opponent of the Clarendon Code for confessional reasons. James issued a Royal Declaration of Indulgence to suspend the penal laws governing religion in 1687; a Declaration more expansive than his brother’s. In a context in which the king was actively opposed to the legislation governing religion, consistent affirmation of this legislation against nonconformity constituted an attack on the king. It was an assertion of the common law’s jurisdiction regarding such matters and rejection of claims of judicial office’s subordination to the king.

63 Roberts against Pain (1685) 27 ER 87, 42. 212

In 1681, the Bench upheld a conviction for nonconformity that was challenged in regard to the wording of the indictment.64 Later that year, Paul Moone applied for a habeas corpus writ to challenge his imprisonment. Moone had been jailed in Bristol ‘for disturbing a minister in saying the common prayers’, and he challenged his remanding on the grounds that his offence fell outside the boundaries of statute. The Bench refused, upholding the statute and Moone’s remand.65 In 1682, King’s Bench again upheld statute in another challenge to the wording of an indictment: the indictment claimed the defendant, Vaughan, had ‘refused the oath’, not that he ‘refuses to take the oath’, as the statute phrased the offence. Again, the Bench upheld statute, affirming Vaughan’s conviction.66 In The King against Spiller and His Wife (1682) the Bench rejected another appeal regarding the wording of an indictment brought for nonconformity.67

More pointedly, in The King and Hurst (1683), King’s Bench upheld a conviction for failure to attend church for a nonconforming Protestant, the exact confessional category for whom Charles had sought to lessen the laws regarding religion in his Royal Declaration. Hurst appealed his conviction under the Act of Uniformity on the grounds he was not a Catholic, and was thus beyond the confessional scope of the statute. Saunders’s Bench, though, asserted that the Act ‘extended to all sorts of recusants, Protestant, as well as Popish’.68 Indeed, statute law on this matter was clear; Hurst’s appeal was likely driven less by a genuine concern that the statute had been misapplied than a belief that Charles’s opposition to the use of statutes to convict Protestants might lead the King’s Bench to excuse his recusancy.

A sign of how strict the Bench could be in enforcing confessional uniformity, in The King against Barnes, and Others (1684), the Bench again upheld convictions for failing to attend church. Henry Pollexfen, the barrister representing Barnes and the others, who would become Chief Justice of Common Pleas after the 1688 revolution, appealed the conviction, arguing that it mistakenly asserted that divine service must be heard in ‘his parish-church’. This was ‘not required by… statute’, which demanded only that it be heard in ‘any church’. The Bench upheld the conviction on a technicality: Pollexfen had needed to show that the accused heard divine service ‘in any other church’, not simply that statute had not prescribed a particular church to

64 The King against Forbis (1681) 143 ER 89, 860. 65 Paul Moone’s Case (1681) ER 84, 1196. 66 The King against Vaughan (1682) 194 ER 89, 886. 67 The King against Spiller and His Wife (1682) 211 ER 89, 893-4. 68 The King and Hurst (1683) 14 ER 90, 47. 213 hear a service.69 The Bench, in short, was keen to enforce uniformity, unwilling to mitigate statute law even in circumstances where its enforcement might seem heavy-handed and excessive.

There were exceptions, though. In The King against Sparks (1685), a Bench led by Chief Justice Herbert and consisting of Justices Wythens, Holloway, and Wright denied the relevance of the Act of Uniformity to the case at hand. Sparks was a priest, and had been indicted and convicted in Devonshire for reading prayers not found in the Book of Common Prayer. Herbert’s Bench overturned his conviction, arguing that it was not enough that Sparks be shown to offer prayers beyond those required by statute, but did so ‘instead of those enjoined’. For conviction, it would have had to be demonstrated that Sparks had neglected the mandatory prayers; as no neglect was demonstrated, no charge was applicable.70

It is worth turning to two final cases in James’s reign that offer an important contextualisation to how we read the foregoing cases in which the Bench built convictions for nonconformity out of statute law. It is easy to see the implementation of statute as evidence of a Bench subordinate to higher law-making power, a claim the next chapter will seek to dispel through its focus on the lex non scripta; on the role of non-statutory law in the King’s Bench. The point here, though, is that the engagement with the lex scripta by the Court of King’s Bench in the Restoration was never done to render judicial office subordinate, but was always tactical, always intended to advance a particular power for judicial office against another institution. This reading is supported by the fact that the King’s Bench positioned itself explicitly against the king’s interest in The Case of the Seven Bishops (1688), a landmark case that constituted a significant repudiation of James, and thus a claim of common law judicial office’s power relative to the king.

James had announced his Royal Declaration of Indulgence in 1687, and reissued it the following year. Among the requirements of the reissued Declaration was that it be read in churches and chapels around the country; it was to be dispensed by the very ecclesiastical authorities whose monopoly on worship it removed. Seven bishops, though, led by Archbishop Sancroft, refused the requirement, and petitioned that James held no such power, for religion

69 The King against Barnes, and Others (1684) 15 ER 87, 26-7. 70 The King against Sparks (1685) 41 ER 87, 50-1. 214 was a matter for parliament.71 For their petition, the bishops were jailed, before coming before King’s Bench in 1688 on a habeas corpus writ. Robert Wright sat as presiding Chief Justice, accompanied by Justices Holloway, Thomas Powell and Allibond. Wright’s involvement in the case is significant: he was a known supporter of Charles II in the Parliament, and was appointed to the Bench on the basis of his supposed adherence to James’s wishes.72

The case turned on whether the imprisonment of the bishops was justified, a question contingent on whether their petition could be shown to have been a ‘seditious libel’, and whether it was one so serious that imprisonment was necessary. For the king, it was argued that the petition constituted not only a ‘breach of the peace’, but the most serious sort, for ‘can there be any greater breach of the peace than a libel against the King and Government?’ Representing the bishops, former King’s Bench Chief Justice Pemberton, Pollexfen, and Heneage Finch alleged there were no grounds for the bishops’ imprisonment. They argued first that the Lords of the Privy Council responsible for ordering their imprisonment lacked the authority to do so, and second, that as the bishops were themselves peers of the realm, they could not be ‘committed at the first instance for a misdemeanor before judgment’.

Much of the case was disputed through the citation of precedent to demonstrate the appropriate process for adjudicating upon such offences, including appeals to how the King’s Bench operated ‘anciently’. Ultimately, the seven bishops pled not guilty to sedition, and were acquitted, with only Wright holding the petition to constitute a libel.73 James had lost in King’s Bench, even with Wright as Chief Justice, and the bishops who had rejected as illegal his Royal Declaration were released. Though the case involved neither statute nor the relationship between common and ecclesiastical law, differentiating it from the other cases in this chapter, it involved the broader dispute over religion in the Restoration, over which a key question was whether the king held a power to dispense with the penal laws on dissent. James, like Charles, claimed he possessed such a power, and contended that the denial of it was seditious. In King’s Bench, such denials were affirmed as legal. Powell and Holloway were quickly dismissed, and Allibond died shortly after the case.

71 ‘Petition of the Seven Bishops, May 18, 1688’, in Carl Stephenson and Ferederick George Marcham, Sources of English Constitutional History (New York: Harper & Row, 1937), 583-4. 72 Stuart Handley, ‘Wright, Sir Robert (c. 1634-1689), judge’, ODNB (2006), http://www.oxforddnb.com/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-9780198614128-e-30056 73 The Case of the Seven Bishops (1688) 128 ER 87, 136-8; Handley, ‘Wright, Sir Robert (c. 1634-1689), judge’. 215

The Case of the Seven Bishops can be seen as a stark contrast to another case decided in King’s Bench two years earlier, Godden against Hales (1686), in which the justices were required to directly adjudicate on whether James II could dispense with the penal laws regarding religion. That the judges found in favour of the dispensing power here might provide evidence of judicial subordination to the crown, at least in this case; an example of a judiciary endorsing the king as positioned above the law, rather than within and constrained by it. Certainly, Hobbes had defended the king’s ability to dispense with law at will as a function of his supremacy over it. Numerous scholars have seen the Bench’s judgment in the case as consistent with existing law,74 but Dennis Dixon endorses a rival reading of the judgment. Through close reading of the precedents cited, Dixon contends the case was a legal aberration brought about through James’s attempts to wield judicial dismissal to control the judiciary: James ‘used his power of the judiciary to assume powers that the existing law simply did not give him’.75

Reading it alongside The Case of the Seven Bishops, though, reveals it cannot be read as an affirmation that the king was above the law. For the case did not decide the king’s absolute supremacy over the law, but rather a particular power in relation to it, and one regulated by the judiciary. The case turned on an indictment under the Test Acts. James had appointed a Catholic – Sir Edward Hales – to the office of colonel, dispensing with the requirement that he take the oaths of allegiance and supremacy required by the Test Acts. Godden served as Hales’s footman, and brought the action as an informer. The case was contrived by the crown to act as a test case of the dispensing power, presumably a move taken to assess the reception of a Declaration of Indulgence, which James would introduce the following year.

Northey, representing Godden, set out a range of limitations on the king’s power to dispense with law. Dispensations were impossible, for example, where ‘others are prejudiced by such dispensation’, nor could a dispensation be granted for ‘an Act of Parliament that is of public concern’. Serjeant , defending Hales, similarly accepted that the king could not dispense in a range of situations; the key difference in argument was that for Glanville, Hales’s situation was one in which dispensation had been exercised legally. ‘A law made pro bono

74 For example, W. S. Holdsworth, A History of English Law: Volume 6 (London: Methuen & Co. Ltd, 1924), 225; Paul Birdsall, ‘“Non Obstante”: A Study of the Dispensing Power of English Kings’, in Carl Wittke, ed., Essays in History and Political Theory in Honor of Charles Howard McIlwain (Cambridge: Harvard University Press, 1937), 37-76. 75 Dennis Dixon, ‘Godden v Hales revisited – James II and the Dispensing Power’, The Journal of Legal History 27:2 (2006), 129-152, at 134. 216 publico (for the public good) is not to be dispensed with’, but ‘where an Act of Parliament prohibits a thing, that was lawful before… which is not to the damage of particular persons, the King may dispense with it’. The lawyers for both parties, in short, agreed that the power to dispense was legally limited, and its boundaries were for the judiciary to police.

The judgment of Chief Justice Herbert, as recorded by Shower, endorsed a much grander account of the dispensing power. For Herbert and the other judges, excepting the dissenters Street and Thomas Powell, ‘the Kings of England were absolute Sovereigns’, and this meant that ‘the laws were the King’s laws’ and ‘the King had a power to dispense with any of the laws of Government’.76 As recorded by Shower, it is hard to see Herbert’s judgment as anything other than an affirmation that the king was above the law, able to dispense with it as he pleased. But if we consider it alongside The Case of the Seven Bishops, we can see it in a different light. The declaration that the king could dispense with any law was simply that: a declaration of a particular power accruing to monarchical office. It was not a claim that the king had total legal supremacy – the capacity to command anything of the judiciary – as a mere two years later the judiciary repudiated James explicitly in an equally prominent case.

That Godden against Hales was merely a statement of the particular powers permitted to the office of the king by the common law is furthered by reading Roger Comberbach’s report of the case. Comberbach provided a much more extensive account than Shower of Herbert’s judgment. In Comberbach’s report, Herbert and his judicial colleagues did not merely declare the king could dispense with any law, but provided an important caveat: though the dispensing power was an ‘inseparable prerogative of the King’, he could only wield it ‘where the subject hath no particular damage’.77 Herbert, in other words, agreed with Glanville and Northey that there were limits to the dispensing power and that the common law judiciary was entrusted with administering these limits.

There is thus a consistency between Godden against Hales and The Case of the Seven Bishops, for both cases asserted the limits of sovereignty. That the judiciary enforced these limits in the 1688 case, but did not in the 1686 case, is not evidence of a subordinated judiciary, but one that consistently considered the boundaries of monarchical office, affirming the position of the

76 Godden against Hales (1686) 432 ER 89, 1050-1. 77 Godwin versus Hales (1686) ER 90, 318-21. 217 judiciary in policing these boundaries. Indeed, there are parallels between the judgment in Godden against Hales and that we saw in Chapter 1 in the Five Knights Case. For in both cases, though scholars have understood the relevant judgments as declarations of the king’s supremacy above the law, we can see instead judicial endorsements of a legally restrained monarchical power. And although Godden against Hales defended a particular use of monarchical dispensation, King’s Bench in the 1680s was more often adversarial towards the crown, as evidenced by The Case of the Seven Bishops and the Bench’s regular reliance prior to James’s Royal Declaration on the Clarendon Code legislation the king opposed.

Conclusion This chapter presents a twofold challenge to existing accounts of the Restoration by intellectual historians. First, it develops the critique of the previous chapter that the Restoration constitution was not stable but a contested space. Building on existing scholarship revealing contest between and within the instituions of the Restoration state, we saw in Chapter 4 that the conflict between king, Church, and parliament played out through the legislative process, with the rhetoric of temporal and spiritual spheres central to this battle. Here, we uncovered the position of the common lawyers within this conflict, expanding our sense of the conflictual Restoration world. The King’s Bench judiciary throughout the Restoration largely exercised their office as independent of king, parliament, and Church. In particular, they asserted their power against king and Church, repeatedly endorsing legislation passed by king and parliament and opposed by Charles II and James II, distinguishing between the temporal and customary common law and spiritual ecclesiastical law, and using writs of prohibition to expand the common law into matters once the domain of the Church courts.

The Restoration Bench engaged ambivalently with the Clarendon Code, deploying statute for strategic gain. It was not until 1675 that King’s Bench, then under Matthew Hale, began to rely consistently on this legislation in nonconformity convictions. The shift in approach is not explicable in terms of subordination, though. Hale, an explicit opponent of Charles’s Royal Declaration, more likely drew on statute that the king opposed as a repudiation of the king; a declaration of the king’s limited legal power and a demonstration of the judiciary’s independence from the king. The same motivation appears to have driven the King’s Bench justices of the 1680s, who presided over the Bench at a time of severe breakdown in relations between king and parliament. The decision by these justices to endorse in King’s Bench statutes opposed by both kings, alongside other explicit declarations of the power of judicial office 218 relative to monarchical, similarly reveals less juridical subservience but the tactical deployment of legislation to assert judicial office’s independence.

An implication of these assertions of judicial independence is that the common law did not operate in terms of hierarchical sovereignty. The sovereign king did not hold an office at the apex of a juridical hierarchy that empowered him to dispense law through legislation that would be followed throughout the realm. Assertions that such a power did inhere in kingship were polemic, not sober analysis of England’s juridical structure. Instead, the king’s legal position was marginal: he could pass law with parliament, but the reception of this law in the realm was piecemeal. Reliance on statute was a rebuke of the king, a consistent reminder of his legislative weakness. At other times, indictments under the legislation were simply quashed: the Clarendon Code was either ignored by King’s Bench, or deployed selectively for tactical advantage against the king.

Another use to which the judiciary put legislation was to assert their independence from the Church courts. In Chapter 4, we saw that over the course of the Restoration, the Clarendon Code increasingly configured nonconformity as a temporal threat. The Restoration Bench, particularly under Rainsford, took this to assert that the common law possessed a jurisdiction to hear the trials of nonconformists under this legislation. In other words, the Clarendon Code could be mobilised against the Church courts to assert a jurisdiction in common law for matters historically the exclusive preserve of the ecclesiastical jurisdiction. In doing so, the Restoration King’s Bench emphasised its independence from the priorities of the Church, which increasingly presented itself as a spiritual institution; common law judicial office was focused on the administration of temporal concerns.

This deployment of legislation to assert independence between the focus of Church and common law courts sat within a broader context of distinguishing between the temporal and customary focus of the courts of common law, and spiritual priorities of the Church courts. Throughout the Restoration, the King’s Bench judiciary consistently used applications for writs of prohibition and mandamus to the Church courts to expound on the jurisdictional demarcation between these jurisdictions. All agreed that common law judicial office was focused on temporal and customary concerns – overlapping subjects, since consistency with custom, as revealed in precedent, was the typical means of administering temporal matters – while the Church courts existed for salvific ends. 219

How sharply this boundary was drawn varied. Hyde, Scroggs, and the judges of the 1680s were particularly willing to deny writs of prohibition, denying the common law’s right to intervene, and often suggesting that where temporal matters were secondary to spiritual matters, the ecclesiastical courts could try them. From Kelyng’s term as Chief Justice to Rainsford’s, though, the judiciary increasingly argued the common lawyers possessed an exclusive right to try temporal matters, which meant that where temporal and spiritual were intermixed, the matter fell to common law. The exercise of Restoration common law judicial office focused heavily on demonstrating the independence of the common law judiciary: from king; from parliament; and from the Church of England.

The second challenge to the existing intellectual history scholarship on the Restoration is the complicated history of legal confessionalisation uncovered in this chapter. Historians have been right to describe Restoration England as a confessional regime. This was, of course, a state that legislated religious conformity, and we have seen that at times, at least, such conformity was enforced by the judiciary. But this is a crude picture of confessionalisation, for two reasons. First, the King’s Bench did not enforce conformity out of confessional concerns, but as an assertion of their independence from king and Church. Confessionalisation was a by- product of the constitutional struggle between judicial, parliamentary, monarchical, and clerical office.

Second, English confessionalisation focused particularly on the temporal. Uniformity was not commanded for the good of English souls – a Church focus – but for the protection of the realm. Both the Restoration Church and King’s Bench held that matters of state were temporal, while the Church’s work was spiritual. This meant that confessionalisation – the legal enforcement of conformity – was not carried out in the terms of the Church. Confessionalisation’s temporal framing located it as a matter for the common law, a jurisdiction that operated through a clear boundary between it and the Church’s work. Legal confessionalisation was thus not a union of Church and state, but the subordination of Church to state, and marginalisation of the Church within the state. The Church’s principal juridical function was to support the state, as conformity with the Church’s dictates was juridically relevant for ends other than the Church’s; the upholding of temporal order.

220

Indeed, this finding might lead us to reconsider how we approach the sermons we encountered in Chapter 2. There, we noted among some members of the clergy an attempt to subordinate judicial to ecclesiastical office through the claim that God had willed English law, and his intentions for its exercise required transmission to the judiciary by the clergy. Though such proclamations of judicial subordination may appear to suggest a confident clergy, these sermons were made simultaneous to the King’s Bench’s attack on the ecclesiastical jurisdiction; their use of writs of prohibition to expand common law at the expense of the Church courts. The claim to command judicial office by these ecclesiastical officers appears, in this context, more an attempt to grasp at juridical relevance; if their own jurisdiction was progressively marginalised, perhaps there was new life for the clergy in instructing the common lawyers now presiding over an expanded law.

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Chapter 6: Restoration Judicial Office and the lex non scripta

John Taylor appeared before the Court of King’s Bench in Michaelmas term 1675. At the time, Matthew Hale sat as the presiding Chief Justice, leading a bench staffed by Justices Thomas Twisden, Richard Rainsford, and William Wilde. Taylor was a yeoman living in the parish of St. Clement Danes, in Middlesex, but had been a preacher during the Interregnum, and if the lone account of his life is to be believed, his theology was extremely heterodox. The anonymously authored A Full and True Account of the Notorious Wicked Life of that Grand Impostor John Taylor, published in 1678, claimed that Taylor’s sect, the ‘Sweet Singers of Israel, or the Family of Love’, promoted the ‘Carnal knowledg of each others Wives’.1

The accusation against Taylor was that he had declared before three witnesses in Guildford, in the county of Surrey, that Christ was a ‘whoremaster’ and ‘bastard’, and religion a ‘cheat’.2 As we have seen, there was a long history of treating words like Taylor’s as an ecclesiastical offence. Since the fifteenth century, statute law had empowered ecclesiastical courts to hear such offences as heresy, and Bartholomew Legate and Edward Wightman had been executed for the offence early in the seventeenth century. According to statute law, the ecclesiastical courts were to try such offences on the grounds that words like Taylor’s were threats to both the temporal and spiritual spheres of the English realm. In the ecclesiastical courts of the seventeenth century such words were treated as exclusively spiritual threats. When Taylor came before the Court of King’s Bench, there existed an extensive repository of existing law with which an offence like Taylor’s could be governed, which would have seen him tried in an ecclesiastical court.

Taylor had committed his offence, though, simultaneous to the House of Lords debating legislation against ‘Atheism, Prophaneness, and Blasphemy’.3 Given the topicality of his offence, rather than being sent to an ecclesiastical court, Taylor came before the House of Lords to determine the appropriate jurisdiction for his trial. The Lords turned the question over to the advice of the judiciary of King’s Bench, the Court of Common Pleas, and the Exchequer, the most senior judge among which was Hale. On 17 November 1675, Francis North, Lord Chief

1 A Full and True Account of the Notorious Wicked Life of that Grand Impostor John Taylor (London: 1678), 3. 2 Taylor’s Case (1675) ER 86, 189. 3 ‘HLJ Volume 12: 11 May 1675’, in JHL: Volume 12, 687-8. 222

Justice of the Court of Common Pleas, attended the House of Lords with a message from the judges.

North reported to the Lords that, although Taylor could be tried in an ecclesiastical court, he could also be tried in a common law court, since his words ‘tend[ed] immediately to the Destruction of all Religion and Government’. With confirmation from the ‘Hospital of Bedlam’ that Taylor was ‘not mad’, it fell to the Lords to select the appropriate jurisdiction for his trial. They settled on the common law – the ‘King’s Temporal Courts’ – and explained their decision by quoting North’s assertion that Taylor’s words had threatened both religion and government.4 In so framing Taylor’s offence, MPs offered continuity with the longer history of statutory heresy, in which the offence was presented as a temporal danger to the state, and spiritual danger to the Church’s work. Likely because the common law’s jurisdiction was considered sufficiently capacious to try Taylor, discussion of legislation regarding blasphemy halted, and Taylor was sent to the Court of King’s Bench.

Before Hale’s Bench, Taylor was tried and found guilty by a jury for the common law offence of defamation. In the only recorded judgment in the case, Hale declared that Christianity was ‘parcel of the laws of England’,5 that because of this Taylor had defamed God, and that to do so was to threaten to destroy the state. Hale fined Taylor one thousand pounds, and sentenced him to the pillory, where he was to stand with a paper attached to his head explaining that his punishment was ‘[f]or blasphemous words, tending to the subversion of all government’, before being imprisoned until he could provide lifetime sureties for good behaviour.6 According to A Full and True Account of the Notorious Wicked Life of that Grand Impostor John Taylor, Taylor was still in jail in 1678, having been unable to afford these sureties. He had since been convicted of treason, too, for statements he made while in jail.7

4 ‘HLJ Volume 13: 17 November 1675’, in JHL: Volume 13, 25-7. For the passage of Taylor’s case through the House of Lords, see: ‘HLJ Volume 12: 11 May 1675’, in JHL: Volume 12, 687-8; ‘HLJ Volume 12: 14 May 1675’, in JHL: Volume 12, 690-2; ‘HLJ Volume 12: 20 May 1675’, in JHL: Volume 12, 669-701; ‘HLJ Volume 13: 11 November 1675’, in JHL: Volume 13, 18-9. Taylor committed his offence on 26 April 1675, but was not tried until at least November 1675, due to parliament’s prorogation between 9 June and 13 October 1675 (‘HLJ Volume 12: 9 June 1675’, in JHL: Volume 12, 728-9; ‘HLJ Volume 13: 13 October 1675’, in JHL: Volume 13, 3-6). 5 Taylor’s Case (1675). 6 ‘The King against Taylor’, in John Rice, ed., Pleas of the Crown in Matters Criminal and Civil (Dublin: 1793), 226-8, at 228. 7 A Full and True Account of the Notorious Wicked Life of that Grand Imposter John Taylor, 4. 223

Not only was Taylor’s Case especially notorious at the time, given the involvement of the House of Lords, but the case has remained one of the most well-known of the seventeenth century. Hale’s judgment was cited as precedent in a range of significant cases, including Thomas Williams’s 1797 blasphemy trial for his publication of Thomas Paine’s The Age of Reason,8 and Richard Carlile’s 1819 trial for the same act.9 It was most recently cited in 1991 in Salman Rushdie’s acquittal for blasphemous libel, where it was used as evidence that blasphemy in English law required the slandering of the Church of England, and thus did not cover offences against Islam.10 More recently still, Baroness Detta O’Cathain cited Taylor’s Case in 2005 in the House of Lords in arguing unsuccessfully against the abolition of common law blasphemy.11

Unsurprisingly, given its notoriety within the law, Taylor’s Case has received a degree of attention from commentators outside the law, too. Perhaps most significantly, John Stuart Mill scorned Hale’s judgment for what he perceived as Hale’s opposition to ‘freedom of discussion’. Mill’s attack on Hale was classically utilitarian: ‘freedom of discussion has generally, the happiest effects on the mind and manners’, and because of this ‘all religions… ought to be subjected to such discussion’.12 The assumptions undergirding Mill’s claim here bear attention, for they are not too distant from assumptions that have animated scholarship on Taylor’s Case more recently. In condemning Hale, Mill attacked Hale’s judgment for its supposed violation of a core utilitarian precept – of a precept the product of philosophy, not law – that the ‘happiest effects’ ought to be promoted. The law, for Mill, was a discipline subordinate to philosophy; an institution instrumentalised for intellectual claims developed beyond it.13

If intellectual historians have not crudely followed Mill in describing Hale’s judgment in utilitarian terms, they have, as we have seen, like Mill assumed that the law was subordinate to sources beyond it.14 Indeed, we might even be more forgiving towards Mill than to these

8 ‘Proceedings against Thomas Williams’, in T. B. Howell, ed., A Complete Collection of State Trials: Volume 26 (London: 1819), 653-722. 9 The King against Richard Carlile (1819) ER 106, 621. 10 R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury (1991) 1 All ER 306. 11 Baroness Detta O’Cathain, House of Lords Debates 9 November 2005, col 532. The offence was eventually abolished in 2008 (Criminal Justice and Immigration Act 2008 (UK) s 79). 12 John Stuart Mill, ‘ART. I.’, Westminster Review 2:3 (July 1824), 1-27, at 9. 13 We saw in Chapter 2 that Hobbes made similar claims regarding the law’s subordination to philosophy in the Dialogue. 14 Scholars outside history have approached Taylor’s Case with anachronistic terms such as ‘discrimination’ (Lawrence McNamara, ‘Blasphemy’, in Peter Radan, Denise Meyerson, and Rosalind F. Croucher, eds., Law and Religion: God, the State and the Common Law (London: Routledge, 2005), 182-203, at 201), ‘secularisation’ 224 scholars. For Mill was a utilitarian philosopher, and thus an initiate to a particular art of reasoning that encouraged the arrogation of other disciplines and institutions to this philosophical scheme. There is less excuse for scholars who have claimed to provide an historical account of this past on its own terms. And yet when we turn to the historical scholarship on Taylor’s Case, we encounter similar subordinating moves.

We have seen over the course of this thesis the way in which a dedication to an understanding of sovereignty as the possession of an exclusive law-making ability has obscured both the common lawyers’ rhetorical resistance to such an account, and their practical resistance, in their ambivalent engagement with Restoration legislation. We have seen, too, that these accounts share this understanding of sovereignty with other accounts that treat legislation as the defining feature of Restoration England. In these latter accounts, the Clarendon Code is pre-eminent in demonstrating that the English state was confessional. And Taylor’s Case has served as a linchpin for this historiography, one of the few cases cited by these intellectual historians. In citing it, they have treated it as evidence of legislative confessionalisation; it is evidence, that is, for an account of Restoration law that sees the common law as subordinate to superior legislative forces. J. C. D. Clark, for example, quotes an excerpt of Hale’s judgment from one of the four reports of the case to claim it demonstrated the ‘essential unity of the two spheres’ of ‘Church and State’.15

This chapter builds on Chapter 5 to challenge the willingness by which intellectual historians have occluded the work of the common lawyers through an overemphasis on legislation. In this chapter, we will turn from the lex scripta to the lex non scripta, highlighting the extensive work the Bench performed beyond the remit of statute. For it is impossible to explain the work of the common lawyers through legislation alone; the lex non scripta constituted the more substantial basis of their jurisdiction. Indeed, its very existence is a challenge to ideas of hierarchical sovereignty, and we will see here the ways in which the common lawyers wielded it to further assert their official independence from crown, parliament, and Church.

(Elliot Visconsi, ‘The Invention of Criminal Blasphemy: Rex v Taylor (1676)’, Representations 103:1 (2008), 30- 52, at 47), and ‘freedom of expression’ (Leonard W. Levy, Treason against God: a History of the Offense of Blasphemy (New York: Schocken Books, 1981), xii). 15 Clark, English Society 1660-1832, 492; J. C. D. Clark, English Society 1688-1832 (Cambridge: Cambridge University Press, 1985), 380. 225

This account of the Restoration King’s Bench’s use of the lex non scripta will first consist of a detailed discussion of Restoration defamation case law in King’s Bench. The common law action of defamation had developed with only limited intervention from statute law, largely arising autonomously within the common law itself. Defamation involved the uttering of insulting words that occasioned or threatened temporal harm. Of all cases heard in King’s Bench between 1660 and 1688, defamation was one of the most common. Moreover, the ecclesiastical courts also held a defamation jurisdiction, which meant that King’s Bench justices repeatedly used their judgments to spell out jurisdictional differences. In uncovering the exercise of judicial office with regard to defamation, two points become clear. First, the common lawyers exercised their jurisdiction with a particular regard to the temporal. We saw such rhetoric repeatedly in Chapter 5 where the judiciary distinguished between the priorities of common and ecclesiastical law. Here, we will see this focus in practice, as the judiciary adjudicated on cases through an assessment on the temporal implications of words, and crafted responses to defamatory offences that emphasised temporal redress.

Second, the consistency with which the Restoration judiciary relied on this classification of defamation reveals a judiciary exercising their office through a grounding in precedent. Though there were shifts in the Bench throughout the Restoration regarding which words were defamatory, there was a stability in the ways in which defamation was understood and tested for by the Bench. When approaching a defamation trial, the judiciary did so in a manner consistent with extant case law. This case law reveals, that is, a dedication to stability in law through consistency in judgments; the cultivation of a juridical comportment grounded in past law that enabled judges to minimise distinctions between judgments grounded in the lex non scripta over the course of the Restoration. Importantly, this was a comportment developed beyond king and parliament that rested on a continuity in how judges interpreted and applied precedent. If judicial office was only in-part grounded on the lex scripta, and even then, only to pursue particular ends for the advancement of the office of common law judge, it was much more substantively grounded in the lex non scripta, relied on in defamation cases in an unbroken chain through the Restoration.

Following this overview of Restoration common law defamation, this chapter turns to Taylor’s Case, the most significant defamation suit of the Restoration, for it offers an acute example of the exercise of judicial office as a defence of an independent judiciary, unsubordinated to monarchical, parliamentary, or clerical office. In Chapter 3, we encountered Hale’s rejection 226 of accounts of judicial office as subordinated to sovereign or clergy. Here, we encounter Hale presiding over a case where these claims have immediate relevance. Hale led a judiciary responsible for trying Taylor’s offence in a common law court; an offence which for centuries would have been tried in an ecclesiastical court by a bishop. Though by the seventeenth century the ecclesiastical courts had broken with statutory heresy, there was a long history of statute developed by king and parliament to govern offences like Taylor’s. Taylor’s radically nonconforming statements were made in the wake of Charles and parliament passing the legislation of the Clarendon Code which restricted nonconformity. These restrictions were introduced because of nonconformity’s profusion during the Interregnum, a process in which Taylor, as a former preacher, had a role.

Though it was no longer in force when Taylor came before King’s Bench, Charles’s 1672 Royal Declaration of Indulgence also meant that the king himself had provided legal commentary on offences like Taylor’s in the years immediately prior to the case. Taylor’s Case, in short, features the most outspoken Restoration defender of judicial independence trying an offence which clergy, king and parliament, and the king in his individual capacity, had all sought to govern. The case thus provides an exceptional opportunity to test Hale’s rhetoric of office against his exercise of office, which this chapter does through a detailed contextualisation of the case with the texts of the common law: the manuscript records of Hale’s notes on the common law, and printed records of cases heard in the Court of King’s Bench.

Through this rich contextualising process, we shall see that Hale’s judgment in Taylor’s Case was exceptionally close to his Restoration rhetoric on judicial office. Hale’s account of judicial office centred the office on the interpretation and application of the lex non scripta, a source base found in the records of the common law, and the lex scripta, statute law. This process provided no role for the clergy in the common law. Hale’s sentencing of Taylor for defamation drew principally on a source base of common law precedent, relying only slightly on statute, and entirely rejecting ecclesiastical approaches to offences like Taylor’s. He thus gave little acknowledgement of sovereign or Church. The king held only marginal power, and the Church none, within the law-making process; a process that weighed heavily in favour of the common lawyers and their insular reliance on the accretion and adaptation of precedent.

227

This chapter consists of two sections. The first section provides an overview of defamation case law in the Court of King’s Bench between 1660 and 1688. In doing so, it shows that the Restoration judiciary relied on a consistent definition of defamation as a temporal danger, and that they did so with little reference to statute, but through the accretion of precedent. This section thus shows that the bulk of the King’s Bench’s work was in the lex non scripta, a form of law developed independently within the common law itself, focused on the temporal, and largely untouched by king and parliament. The second section turns to Taylor’s Case, demonstrating the way in which Hale’s judgment was consistent with Restoration common law approaches to defamation, and how he broke from the legislative and ecclesiastical approaches to offences like Taylor’s recounted in Chapter 4. The conclusion will emphasise how closely this judgment mirrored Hale’s rhetoric of office, a point missed in a scholarship that has rarely acknowledged his rhetoric, or sought to contextualise his judgment through reference to case law or Hale’s writings on judicial office.

I In Chapter 5, we saw the ways in which the judiciary engaged with statute in order to affirm independence from Church, monarch, and parliament. But the selective and strategic use of statute was a minor part of how the judges exercised their office as independent. The more substantive expression of their independence was the extensive grounding of their office in the lex non scripta. The bulk of King’s Bench work was in the lex non scripta, in the use of laws not created by, or tethered to, statute. Hale had claimed the lex non scripta had ancient origins, developing out of the ancient customary practices of the English people, which could be discerned through reading precedent. We have already encountered numerous appeals to ancient or customary practice, particularly in the claim that the common law was the jurisdiction of custom, and have noted that the idiom of courtroom contest was the deployment of precedent.

This section focuses on the common law offence of defamation, an offence developed almost entirely away from king and parliament. The Restoration King’s Bench defined defamation as the uttering of insulting words that occasioned or threatened temporal harm. More specifically, the judiciary identified three forms of defamatory language on the basis of damage done or threatened: falsely accusing another of a felony; insults causing specific damages; and insults regarding another’s capacity to perform her or his profession. Between 1660 and 1688, the Bench heard 218 such cases, finding the words in question defamatory 103 times. The most 228 explicit account of the common law’s defamation jurisdiction came in a case not heard in King’s Bench, but from a Justice who would serve on King’s Bench for six years. In 1671, the Court of Common Pleas heard King v Edward Lake, the latest in a series of defamation cases between Lake, a former army officer, and Edward King, a lawyer.16

The case involved a letter written by Lake that claimed King had sought to enrich himself by advising a client to pursue a vexatious suit. The judgment finding Lake’s behaviour defamatory was handed down by Justice Wilde, who would be elevated to the King’s Bench in 1673. Wilde’s judgment set out the function of common law defamation as exclusively temporal: the common law ‘takes care of a man’s livelihood and fame, as well as of his life’, and this ‘general rule’ underpinned common law defamation.17 The common law, in other words, would deem actionable words that affected a man’s work, his reputation, or his life, as accusations of felonious behaviour could.

We can see this dedication to an understanding of common law defamation as temporal damage occasioned by insult, as well as the Bench’s consistent reliance on precedent, in some of the earliest defamation cases of the Restoration. In 1661, R. Rawlins brought an accusation of defamation before Foster’s Bench. Rawlins was represented by future King’s Bench justice Thomas Jones. An unnamed man had claimed Rawlins would ‘lose his estate… for marking of my sheep’. Jones suggested to the Bench that the words implied a felony by Rawlins. They suggested, that is, that ‘the plaintiff had committed such an offence for which he shall lose his estate’.18 In rejecting Jones’s claim, Justice Twisden cited similar cases as precedent, arguing that explicit ‘mention of stealing’ was required to render the words defamatory. Citing precedent, the Bench affirmed the need for slander to clearly import a temporal threat: an accusation of stealing for which the slandered party could lose property or liberty was actionable, though a vaguer accusation, as had been used here, was not.19

Other versions of this argument were deployed shortly after. In Dacy versus Linch (1661), Foster’s Bench found actionable the claim a woman was a witch and ‘deserved… to be hanged’.

16 Lake and King were involved in numerous cases (see Appendix) and a pamphlet exchange: Edward King, To the Honourable the Committee of Parliament for Grievances (London: 1666); Edward Lake, The Answer of Sir Edward Lake Baronet (London: 1665). 17 King v Edward Lake (1671) 14 ER 89, 12-3. 18 Rawlins against - (1661) 16 ER 83, 776-7. 19 Rawlins against - (1661) 47 ER 83, 783. 229

Counsel for the defendant claimed that ‘witch is only a word of scolding, if it be not coupled with a demonstration that he bewitched some creature’, and thus constituted no accusation that a felony had been committed. Foster and his colleagues denied this argument, though, for the claim that the plaintiff deserved to be hanged suggested that the plaintiff was not merely being scolded, but accused of felonious witchcraft.20 In Nuttal against Page, heard the same year, Page accused Nuttal of being a ‘rogue and a knave’, and claimed he was jailed in Newgate for ‘counterfeiting the Kings hand and seal’, for which he was to be hanged. Debating the relevant precedents, the Bench first noted it was ‘uncertain’ whether the words were sufficient to be actionable.21 After an adjournment, though, Wilde, the barrister for Nuttal, claimed that the mention of Newgate ‘implyeth’ he had committed a felony, with which Foster’s Bench agreed.22

We can see the related concern with specific damages in Bastard (1661). Here, Foster’s Bench held not actionable the accusation that Mr B. ‘did lye with J. P. as often… as with his own wife’, as ‘special damnification’ needed to be demonstrated.23 A concern with dangers to employment motivated the judgment in Davies against Jones (1662). The plaintiff was a broker, accused of being a ‘cheating knave’ who had ‘cheated him with brass mony’. Francis Pemberton, representing the defendant, claimed the words were not actionable for they were not sufficiently related to the plaintiff’s profession; they were ‘of things not in his profession’.24

Foster’s Bench agreed, though, that to accuse a ‘tradesman’ of being ‘a cheat’ was actionable ‘if he speaks of his profession’, though no action lay if a man described another as a cheat ‘generally’. Here, as the accusations had related sufficiently to the plaintiff’s work, the words were defamatory.25 In each case, Foster’s Bench was guided by whether the words had caused or threatened to cause temporal damage. In Rawlins against -, the lack of an explicit accusation that Rawlins had committed a felony for which he could be punished rendered the words not actionable. In Bastard, the absence of damages rendered the words not actionable. In Nuttal against Page and Dacy versus Linch, an explicit accusation of a felony rendered the words

20 Dacy versus Linch (1661) ER 83, 20. 21 Nuttal against Page (1661) 6 ER 83, 804-5. 22 Nuttal against Page (1661) 16 ER 83, 808. 23 Bastard (1661) 53 ER 83, 785. 24 Davies against Jones (1662) 107 ER 83, 1014. 25 Davies versus Jones (1662) ER 83, 35. 230 actionable. And in Davies against Jones, Foster’s Bench declared actionable a slander that endangered the plaintiff’s employment.

Hyde’s Bench relied on similar tests. In 1664, Hyde, Twisden, Windham, and Kelyng found slanderous the accusation that a man had ‘pickt’ another’s pocket, given the implication that he had committed theft.26 The emphasis on temporal damage also animated the Bench in Bois against Bois (1664). The defendant had claimed the plaintiff was a ‘brazen fac’d whore, and I will turn her out of her living’. Sexual incontinence, as the court often referred to it, was typically a matter for the Church courts, but here, the woman was in danger of ‘los[ing] her widows estate’ as a result of the accusations. The judges debated, once more through reference to precedent, whether ‘whore’ was analogous to ‘bastard’, an accusation of which could also result in a loss of estate.27 Though the final result is not recorded, the court inclined towards finding the words actionable, in particular because the defendant knew the plaintiff would be ‘likely to lose her widows estate’ as a result of the slander.28 Words conventionally heard in Church law were rendered justiciable in common law where particular temporal affects flowed from them.

Chief Justice Kelyng and Justices Twisden, Windham, and Morton shared a concern over accusations of felonious behaviour. In David Williams against Owen (1666), the plaintiff was claimed to ‘hath strangled his wife’. The defence barrister suggested that no felony was implied, for strangling or choking ‘may be by accident’. Kelyng’s Bench disagreed: not only was intentional strangling suggested by ‘innuendo’, but the words were spoken ‘in the presence of such as understood them’ to convey a felony. As the defendant’s words had been understood to mean that the plaintiff had committed a felony, his words were deemed actionable.29 It is important to note here that intention was irrelevant. The key question for the court was whether damage had been done. Here, others had understood the defendants’ words to constitute a felony, and that was sufficient.30

26 Gerrard against Lyon (1664) 6 ER 83, 1188. 27 Bois against Bois (1664) 6 ER 83, 1211. 28 Bois against Bois (1664) 62 ER 83, 1228. 29 David Williams against Owen (1666) 18 ER 84, 60. 30 Similar judgments were upheld in: Limbe against Hockley (1667) 14 ER 84, 115; Dalton against Sad (1668) 36 ER 84, 258. 231

That words were actionable where they engendered particular damages or threatened employment underwrote the judgments of Kelyng’s Bench in Harrod & Uxor against Hardwick & Uxor (1667) and Kirle against Osgood (1669). In the former case, the plaintiff had been called a ‘whore’, and accused of having given birth to a ‘bastard’. The plaintiff and her husband owned an inn, and claimed before the Bench that they had ‘lost their custome’ as a result of the accusations. After extensive consideration of precedent, the judges determined that the damages could not be sufficiently linked to the slander, principally because a husband and wife had brought the action, but only the wife had been slandered.31 In Kirle against Osgood, Kirle, a justice of the peace, was described as a ‘forsworn justice… not fit to sit upon the Bench’. Osgood’s counsel claimed no defamation, suggesting there was ‘no special colloquium of his being a justice of peace’.32 Kelyng’s Bench cited numerous cases, though, to declare that Osgood’s words were ‘necessary to be applied to [Kirle’s] office’, and thus actionable.33

Hale’s Bench approached defamation in a manner closely consistent with these earlier judgments, perhaps unsurprising for a judge who extolled the virtues of following precedent in his writings outside the law. Phillips versus Kingston (1671) involved the defendant’s allegation that the plaintiff had broken his father’s ribs, that he had died from the injury, and that the plaintiff would be hanged for his offence. The defendant pled that he had not meant an intentional breaking – ‘he did this hurt to his father against his will’ – and his claim that the plaintiff would be hung was only ‘his judgment’, so his words were not defamatory. Hale’s Bench refused these claims: the defendant’s words suggested a ‘murdrous killing’, one for which the plaintiff would be punished, potentially via execution, and for this the defendant’s claim was defamatory.34

Defaming another’s employment was central to Todd versus Hastings (1671). Here, the plaintiff was a woollen-draper, and the defendant had claimed that ‘You are a cheating fellow, and keep a false book’. The defendant pled against the charge, claiming ‘the words might not be intended to relate to his trade’, for they were not said during a ‘colloquium of his trade’. As in Phillips versus Kingston, Hale’s Bench had no sympathy for the defence: a reference to a

31 Harrod & Uxor against Hardwick & Uxor (1667) 21 ER 84, 165; Harwood & Uxor against Hardwicke (1667) 91 ER 84, 188 ; Harwood & Uxor against Hardwick & Uxor (1668) 63 ER 84, 242. 32 Kirle against Osborn (1669) 21 ER 84, 343. 33 Kirle against Osgood (1669) 108 ER 84, 365. 34 Phillips versus Kingston (1671) ER 86, 80-1. 232 debt-book was clearly to that book which ‘shop-keepers keep’, and thus to speak of a ‘false book’ could only be understood as a ‘great slander to him in his trade’.35 As in Wilde’s account of the common law’s defamation jurisdiction as protective of men’s livelihood, allegations of fraudulent work practices were found actionable by Hale and his colleagues.

Even where the decisions regarding which words were actionable varied among the Bench, a consistent judicial approach united justices across the Restoration. In 1672, Hale’s Bench heard a defamation suit over the accusation that a man had ‘picked’ another’s ‘pocket’. The same words had been found defamatory in 1664 by Hyde’s Bench in Gerrard against Lyon. Hale’s Bench rejected the earlier decision, though, contending that there was ‘no necessary implication of felony’. Hale himself noted that he was in-part unwilling to find the words actionable as he did not want the scope of defamatory action to grow too large: ‘he would not improve actions for words further than they are’.36 The key point here is that although Hale’s Bench broke with the earlier decision of Hyde’s Bench, they approached the case in the same way: for both, the key question was whether the words imputed a felony. For Hyde they did, for Hale they did not.

Slander against employment was again found actionable in Crawfoot versus Dale (1674), in which Hale’s Bench tried the claim that a tradesman was a ‘cheating knave’ who ‘kept a false debt-book, with which he cheated the country’. The defendant pled against the charge, claiming that an accusation of ‘cheating’ against a tradesman could simply refer to him selling his goods ‘too dear, and so cheated in the price’, and that there was no slander in keeping a false debt- book, for this could be done ‘unwittingly’. The Bench rejected the arguments, declaring that as the words were spoken during a ‘colloquium of his trade’ they were slanderous, in particular because debt-books were ‘of [so] much regard’ they were used as evidence; to call them into ill-regard threatened to destabilise an important legal mechanism.37

Indeed, stability and the related role of precedent was a core theme of Hale’s Bench. In Snell versus Webling (1675), the Bench ruled that slander by implication was actionable, for to establish a precedent in which an implication was held unactionable risked providing ‘sly ways

35 Todd versus Hastings (1671) ER 86, 81. 36 Watts versus Rymes (1672) ER 86, 143. 37 Crawfoot versus Dale (1674) ER 86, 176. 233 to defame any man and evade an action’.38 The case was complicated. Webling had said ‘I know what I am, I know what Snell is, I never buggared a mare’, and in his defence, claimed that he had never accused Snell of ‘buggery’.39 Hale’s Bench, though, declared that Webling had clearly intended to defame, and that his words were conducive of ‘sufficient scandal’.40 Threats to employment were again central in Bell and Thatcher (1675). Thatcher had alleged that Bell, a letter-carrier, ‘breaks open letters, and takes out bills of exchange’. Hale’s Bench denied the words actionable using similar language to Kelyng’s Bench in Kirle against Osgood, asserting that ‘no colloquium was laid to be of his employment at the time when the words were spoken’.41

A focus on temporal damage also governed the judicial approach in Wetherhead against Brookborne (1678), presided over by Chief Justice Scroggs and Justices Twisden, Wilde, and Jones. The plaintiff in this case, a ‘dancing mistress’ (a dancing teacher), was accused of being a man, having fathered an illegitimate child, and of being ‘an hermaphrodite’. She claimed that as a result of this allegation she had lost many students, resulting in a material loss of forty pounds. The justices moved back and forwards regarding whether the words were defamatory. For Justice Wilde, they were so damaging in and of themselves – ‘the very words carry damage’ – that damages did not need to be demonstrated for the words to be found actionable.

Ultimately, though, the court determined the words non-actionable, following repeated adjournments. The justices explained that damages needed to be demonstrated because, since dancing teachers were often men, referring to a female dancing instructor as a ‘hermaphrodite’ was not in and of itself defamatory: ‘the word hermaphrodite, unless special damage ensue, is not actionable’.42 Though the plaintiff had claimed to lose students as a result of the allegation, she had done so only by claiming to have lost ‘divers scholars’, without explaining any of these losses ‘in particular’. In short, ‘no special damages are laid’. As particular damages could not be shown to flow directly from the insult, no defamation had been committed.43

38 Snell versus Webling (1675) ER 86, 184-5. 39 Snell against Webling (1675) ER 83, 493. 40 Snell against Webberly (1675) 46 ER 84, 870. 41 Bell and Thatcher (1675) 309 ER 89, 198. 42 Wetherhead against Brookborne (1678) 11 ER 89, 766. 43 Wetherhead against Armitage (1678) ER 83, 534. 234

We encountered Thomas Clarges in Chapter 4 as an opponent of the House of Commons’s repeated attempts to exclude James from the throne. It is unsurprising, given his position on Exclusion, to encounter him again here, as the plaintiff in a defamation suit, accused of being a ‘Papist’. The case is illuminating, for it reflects the way in which the common law could develop over time, while remaining unchanged in key ways. Central to the case was that the defendant, Roe, had accused Clarges of being a papist in 1680, eight years after the first Test Act, and two years after the second, which excluded Catholics from holding office, including in parliament.

Roe’s barrister, Francis Winnington, claimed the allegation against Clarges was not actionable on two grounds. First, to be a ‘Papist’ was no offence at statute or common law, so no legal damage could flow from being accused of being one. No statute defined ‘Papist’, and although there were laws that ‘provide against the jurisdiction of the Pope’, none of these made reference to papists, specifically. Turning to the common law, to be a ‘Papist’ was not by precedent punishable. If the term referred to ‘him who embraces the doctrine of the Pope’, then historically the inverse was true: ‘it was punishable before the Reformation to be of a contrary opinion’. ‘Though the times may alter’, Winnington claimed, ‘the law is still the same’.

Winnington’s appeal here was to the history of the law: if, historically, men would be punished for denying the Pope’s doctrine, to be accused of embracing it now could not be defamatory according to precedent. More generally, no precedent showed ‘an indictment against a person for being a Papist’; to be a Papist had never been punishable at common law. There were only precedents against those who failed to attend church, an offence Clarges was not accused of. The most analogous case Winnington could find involved a man accused of being a heretic. But there, the Court of Common Pleas had determined that the defamation was a ‘spiritual’ matter, ‘of which this Court hath no cognizance’. Indeed, a finding that the words were actionable actually risked the laws against popery and endangered ‘the Protestant religion’, for it might make men unwilling to say ‘a man is “a Papist,” who is really so both in his judgment and profession’. Second, Clarges had suffered no particular damage in his office as a result of the words.

Roger North, Clarges’s barrister, repudiated Winnington’s claims. First, the words were actionable for being defamatory in themselves, but were also actionable for being a ‘means to bring him to corporal punishment’, and a threat to his particular office. Rejecting Winnington’s 235 contention that ‘Papist’ had no legal meaning, North claimed there was no difference between ‘Papist’ and ‘popish recusants’, for the terms meant the same thing, and the legislation against Catholic recusants thus constituted legislation against papists. Citing the Test Acts, North claimed that Clarges may lose his position as an MP, and further that he was in danger of being tried for treason, ‘for the words are synonomous’. Rather than no definition in law, ‘Papist’ carried significant legal weight.

Moreover, that ‘Papist’ was actionable now when it was not before did not so much mean that the law had changed, but that ‘the force of words is changed with the times’. In other words, the common law did not change substantively – defamation remained the same offence, an insult occasioning or threatening temporal damage – but which words occasioned or threatened temporal damage changed with the times. The Test Acts, which rendered Clarges’s office untenable were he a Catholic, meant ‘Papist’ was actionable in 1680, in a way that it was not prior to the Reformation. The Bench’s defamation jurisdiction adapted to the changing times, but did not change in substance, as the judiciary continued to rely on the same general understanding of common law defamation. The Bench accepted North’s argument completely, declaring Roe’s words actionable.44

An accusation of popery was also at the heart of the 1686 case Peak against Meker. The plaintiff had been described as ‘a rogue, a Papist dog, and a pitiful fellow’. He denied the accusations, explaining that he had been ‘bred up in the Church of England’. Affirming the words were defamatory, the Bench ordered the plaintiff receive 500 pounds damages.45 The damages paid were substantial, and perhaps a result of the change in monarch, but not a change that reflected James’s control of common law. For the implication of the judgment was that to be called a papist, which James was in the most literal sense, was an extreme form of insult. Indeed, the widespread opposition to James likely led the Bench to treat the words as extremely defamatory; to be accused of being a Catholic under an unpopular Catholic monarch was a severe slander to be subjected to.

Though defamation was largely a civil action between rival parties, one of whom had defamed the other, the King’s Bench at times tried defamation as a crime. These cases sustained the

44 Roe against Sir Thomas Clargis (1683) 5 ER 87, 15-7. 45 Peak against Meker (1686) 63 ER 87, 65. 236 emphasis on temporal damage, but the key test for the judiciary was not the damage to the scandalled party, but whether the defamatory words occasioned a danger to the peace of the realm. In The King against Executors of Summers (1665), for example, the allegation that Summers was ‘of a trayterous breed’, was found actionable for it constituted ‘an actual breach of peace’.46 If not as explicit, the judgment in The King against Banks (1666) indicates a similar focus: Banks was found guilty of ‘defaming the Commissioners of the Militia of London’ on the grounds that his words had caused ‘sufficient scandal’.47

We can position the Bench’s treatment of common law defamation as consistent with the use of writs of prohibition we looked at in Chapter 5, many of which in fact regarded ecclesiastical defamation suits. In Bedniff & Ux versus Pople & Ux (1672), Hale’s Bench explained that common law defamation did not govern accusations of sexual impropriety, for this was a matter of ‘penance’.48 In Dudley v Spencer (1678), a case in which no outcome is recorded, unfortunately, Scroggs’s Bench declared an unwillingness to issue writs of prohibition unless ‘special damage’ was ‘alleged’.49 In other words, the claim we encountered repeatedly in Chapter 5 by the Restoration judiciary, that the common law was temporal and customary, not spiritual, is sustained when we turn to see the King’s Bench adjudicating on the common law itself: the judges cast defamation as an exclusively temporal offence.

Though defamation was principally an offence developed within the lex non scripta, there was a statutory form of defamation, too: scandalum magnatum, wherein nobles and other prominent officials were defamed.50 These offences were grounded in legislation from the thirteenth and fourteenth century that emphasised the need for the law to prevent discord and destruction of the realm. The 1275 Statute of Westminster declared insults against nobles actionable for causing ‘Discord, or occasion of Discord… between the King and his People, or great men of this Realm’.51 Richard II expanded this statute in 1378 to prevent ‘great peril and mischief… to all the Realm, and quick subversion and destruction of the said Realm’.52

46 The King against Executors of Summers (1665) 40 ER 83, 1327. 47 The King against Banks and Taylor (1666) 9 ER 84, 3; The King against Banks (1666) 43 ER 84, 14. 48 Bedniff & Ux versus Pople & Ux (1672) ER 86, 148. 49 Dudley v Spencer (1678) 311 ER 89, 198. 50 See John C. Lassiter, ‘The Defamation of Peers: The Rise and the Decline of the Action for Scandalum Magnatum, 1497-1773’, American Journal of Legal History 22:3 (1978), 216-36. 51 ‘Edward I, 1275: None shall report slanderous News, whereby Discord may arise’, in Danby Pickering, ed., The Statutes at Large: Volume 1 (Cambridge: 1762), 97. 52 ‘Richard II, 1378: The penalty for telling slanderous lyes of the great men of the realm’, in The Statutes at Large: Volume 2, 222. 237

The Restoration jurisdiction over scandalum magnatum offences was novel. Previously, such actions were heard in Star Chamber, an additional court staffed by common law judges and privy councillors abolished in 1640.53 By looking at one of the Star Chamber trials for scandalum magnatum, we can see how this jurisdiction transformed when it was taken over by common law. In the 1605 case De Libellis Famosis, Justice Edward Coke claimed that ‘libelling… is an offence against the Law of God’. Star Chamber was not a court of common law, and loosed from that world of precedent-based jurisdiction, Coke could invoke sources beyond those available to common lawyers, citing Levitical passages in support of his claim.54

No reliance on Biblical sources drove the Restoration King’s Bench in the exercise of their jurisdiction over scandalum magnatum matters. Instead, close reliance on statute law and emphasis on damage to the realm drove debate in court and the Bench’s decisions. We can see this, in particular, in the 1669 case Lord Peterborough against Mordant. The case title is confusing, for Lord Peterborough and Mordant were the same man; Lord Peterborough was the title of Henry Mordant, a peer and former governor of Tangier. The defendant is unnamed in the reports. The case involved the defendant’s accusation that Mordant had attempted to steal his purse.

The defence counsel, Thomas Jones, initially asserted that the accusation was not actionable for ‘implying no offence’. To be actionable under the statute, there must be ‘something that reflects in scandal’ in the defendant’s words. The Bench rejected Jones’s argument in unison, declaring that in scandalum magnatum trials, ‘ill words’ were ‘to be taken in the highest sense’.55 Though the judges did not state it, we can make a reasonable assumption regarding their reasons for their decision. Scandalum magnatum matters concerned the safety of the realm, and were thus a particularly acute form of defamation; reading down such slanderous language was too dangerous.

Hale’s Bench heard two scandalum magnatum cases. The matters before the King’s Bench were only procedural, but the continued support by the Bench for such types of action is

53 ‘Charles I, 1640: An Act for [the Regulating the Privie Councell and for taking away the Court commonly called the Star Chamber’, in Statues of the Realm, Volume 5, 110-2. 54 Edward Coke, ‘De Libellis Famosis’, in Coke, ‘Reports’, 145-9, at 147. 55 Lord Peterborough against Mordant (1669) 35 ER 84, 380-1. 238 consistent with Hale’s Bench’s broader endorsement of a common law centred on temporal problems. In Earl Thanet and Graham (1672), Hale’s Bench heard a dispute over where the case could be tried. The defamation, its content unreported, related to actions supposedly occurring in Kent, but the trial was in Middlesex. Consistent with precedent, Hale and his fellow judges affirmed the trial could continue in Middlesex.56 In Bishop of Chester against Jones (1674), Hale’s Bench awarded financial restitution to Jones for having been illegitimately removed from his parsonage when he had failed to pay damages in a scandalum magnatum trial.57

In 1682, James, the Duke of York, brought an action under the scandalum magnatum legislation. This case, held at a time when fear of a Jesuit plot against the king was high, revolved around the defendant, Pilkington’s, claim that James had ‘burned the city’ and was ‘now come to cut our throats’. Pilkington was articulating a popular allegation that Catholics had been responsible for the in 1666. Tried under statute law, Pilkington’s words were found actionable, and the Bench awarded James 100,000 pounds in damages.58 A key point regarding these trials bears affirming here. As in common law criminal defamation, scandalum magnatum legislation did not focus on the damage done to the slandered party; there was no question in these cases of whether their employment, reputation, or life was endangered by the slander. Rather, the question was whether the slander threatened the state. The temporal damage in question was not to the plaintiff, but the realm.

As we can see, though scandalum magnatum trials constituted some of the King’s Bench’s Restoration work, statute-driven defamation was a tiny part of the Bench’s business. The vast majority of defamation trials – 207 of 218 – were not scandalum magnatum trials but defamation suits grounded in the lex non scripta. This is a crucial point, for it meant that alongside their selective engagement with the lex scripta, the Bench largely operated a jurisdiction in which statute had no relevance. To take statute as the key means of understanding Restoration English law is thus fundamentally mistaken, for the highest court in the realm worked largely outside it.

56 Earl Thanet and Graham (1672) 8 ER 84, 582. 57 Bishop of Chester against Jones (1674) 2 ER 84, 740. 58 The Duke of York against Pilkington (1682) 238 ER 89, 918. 239

There is, of course, a counter-argument available to the claim that the existence of the lex non scripta and the extensive reliance on it by the Court of King’s Bench evidences an independent judiciary. And it is an argument used by Hobbes, who contended that the lex non scripta, like the lex scripta, flowed from the sovereign king. Hobbes claimed that the king was ‘Legislator both of Statute-Law, and of Common-Law’,59 for the legal status of the lex non scripta was contingent on it being ‘tacitly confirm’d’, not ‘disapprov’d’, by him.60 But such an argument does not stand up against the history of law we have uncovered in this thesis.

In Chapter 5, we saw that the judiciary relied on the Clarendon Code to repudiate Charles II and James II, both of whom opposed it, and did so alongside judgments like that in The Case of the Seven Bishops, which were in clear opposition to the monarch. In none of these cases did the king overturn the judgment, and neither monarch proclaimed any power to do so. Though both regularly dismissed judges, this was the limit of their attempt to control the common law: intervention in the work of the court never appeared as an option. The lex non scripta, then, could not simply be a function of sovereign will, for it was within the courts of common law that such stern rebukes of the sovereign were developed.

II The Restoration judiciary’s exercise of their office through a reliance on precedent, a focus on temporal concerns, and through these processes an assertion of judicial independence, crystallised in Taylor’s Case. Taylor’s Case was perhaps the most famous case of the Restoration; The Case of the Seven Bishops likely the only other contender. One of the few Restoration cases to receive an interest from intellectual historians, it is held up as evidence of the common law’s adherence to the Clarendon Code, supposed proof of legal confessionalisation through legislation. This scholarship attempts only sparse contextualisation; no close reading of legislation and case law grounds it, but brief comment on statute and fragmentary quotation of Taylor’s Case alone. Such an approach, this section will demonstrate, is too narrow, for there is a deeper contextualisation necessary that situates Hale’s judgment within the longer history of statute law regarding religion, common law defamation precedent, and the broader disputes over the position of the common law relative

59 Hobbes, ‘Dialogue’, 26. 60 Ibid., 116. 240 to Church, crown, and parliament. This section will interpret Hale’s judgment, as recorded across four reports and his own notes on the case, in terms of this much wider history.

Taylor’s Case was one of the last cases Hale heard before his retirement from King’s Bench. We saw in Chapter 5 that an important element of his tenure as Chief Justice was his aggression towards the ecclesiastical courts. Hale’s Bench regularly used writs of prohibition to enlarge the common law into matters previously the preserve of Church courts, and Hale himself was notable for the scorn with which he at times treated ecclesiastical personnel. This context is important to understanding Taylor’s appearance before the Court of King’s Bench. The House of Lords had determined Taylor would be tried in King’s Bench on the advice of the judiciary, a group in which Hale was the most senior member. Though Taylor’s offence would typically have been tried in an ecclesiastical court, Taylor’s Case constituted a final example in Hale’s term as Chief Justice of a matter that would have conventionally been tried in an ecclesiastical court being heard at common law. As with many of the details surrounding Taylor’s Case, this key jurisdictional dispute that made the case possible has been neglected by those intellectual historians who have engaged with the case.

Given the extensive legislation and ecclesiastical case law regarding offences like Taylor’s, Hale had available to him a wide array of linguistic formulations by the king alone, king and parliament, and the clergy, through which to adjudicate upon Taylor’s actions. Locating Hale’s judgment within this context enables us to observe that his judgment did not evidence judicial subordination; neither to king, nor parliament, nor Church. For he drew only marginally on statute law and excluded ecclesiastical approaches to offences like Taylor’s. Instead, his judgment was principally grounded in common law precedent, as he eschewed the language of spiritual harm central to statutory and ecclesiastical approaches to heresy to describe Taylor’s offence in the exclusively temporal terms of common law defamation. Although intellectual historians have approached Hale’s conviction of Taylor as demonstrative of the Restoration common law following legislation unifying Church and state, he in fact ignored the idiom of both sovereign and Church for precedent found within the common law. In other words, Hale’s judgment affirmed his rhetoric of judicial office, which cast the work of common law judges as rooted principally in the lex non scripta developed largely beyond king and parliament.

In his judgment and notes on the case, Hale engaged explicitly with the context of statute law regarding religious nonconformity and the jurisdictional demarcations between common and 241 ecclesiastical law. His notes reveal that for Hale, the case was central to the question of the relationship between judicial and sovereign office. The framing of Taylor’s Case as crucial to understanding the common lawyers’ response to the dispute over judicial office is thus not artificial, but consistent with Hale’s own treatment of the case and positioning of his judgment. As Chief Justice of King’s Bench, Hale kept a notebook recording every case he heard, now held by Lambeth Palace Library as MS 3478. The notebook is in a poor state, in-part from Hale’s propensity to spill ink, at times obscuring entire pages of notes, and his cramped and often smudged writing style. Only part of Hale’s notes on Taylor’s Case are legible, unfortunately, but these notes are illuminating.

The remaining legible notes on Taylor’s Case consist of a discussion of the legislative history covered in Chapter 4; evidence that Hale considered his judgment an engagement with this history. Hale was learned in this history: his Pleas of the Crown recounted the history of heresy law in England.61 In particular, Hale’s notes focused on Charles’s 1672 Royal Declaration of Indulgence, regarding which Hale rejected any Hobbesian claim that sovereign office held exclusive power to make law. The declaration was invalid for the king could not legislate alone, for ‘religion had the…authority of an act of Parlement’ so ‘was not alterable by the kings… without an act of Parlement’62. In his ‘Reflections’, Hale had claimed that the king could not make law without parliament, and he repeated this claim here; we can see the proximity of Hale’s writings on judicial office and his exercise of it.

In developing their accounts of Taylor’s Case’s synchronicity with statute, scholars centre their accounts on a claim supposedly made by Hale, featured in Ventris’s report of the case, that ‘Christianity is parcel of the laws of England’.63 Importantly, of the four reports of Taylor’s Case, only Ventris quoted Hale as having said this. King’s Bench barrister John Tremayne recorded no such claim,64 and court reporter and common lawyer Joseph Keble quoted Hale as having made a similar, though non-identical claim, in one of his two reports of the case. Keble reported Hale as having said that ‘Christian religion is a part of the law it self’.65 Neither Hale’s notes on the case nor the three other reports of the case have received attention from historians.

61 Hale, Pleas of the Crown, 3-5. 62 Matthew Hale, MS 3478, 36. 63 Taylor’s Case (1675). 64 ‘The King against Taylor’, 226-8. 65 Dominus Rex and Tayler (1675) 53 ER 84, 906. No reference appears in Keble’s other report, Dominus Rex and Taylor (1675) 94 ER 84, 914. 242

Indeed, the limitations of this scholarship do not end there. For even if we look only at Ventris’s report, we can see that historians have isolated their favoured passage at the expense of the entire text. An overview of Ventris’s full report and the other reports of the case shows no dedication to a confessionalised sovereignty, but a clear breach with legislative and ecclesiastical approaches to such offences. Statute law regarding heresy had treated offences like Taylor’s as spiritual and temporal threats, and ecclesiastical courts had approached such offences as causing exclusively spiritual harm. Hale, in contrast, asserted that it was the temporal implications of Taylor’s words for which he stood trial.

Hale opened his judgment with an explicit discussion of the jurisdictional distinctions between common and ecclesiastical law. Ventris recorded Hale as acknowledging Taylor’s words were ‘an offence to God and religion’, but that he was ‘punishable in this Court’ for they were a ‘crime against the laws, State and Government’. Taylor’s words, Hale explained, threatened ‘to dissolve all those obligations whereby… civil societies are preserved’.66 The longer of Keble’s two reports attributed a similar, if slightly sharper, claim to Hale. Keble recorded Hale as having said that despite Taylor’s words being of ‘ecclesiastical cognisance’, he was ‘punishable here’ for to say ‘religion is a cheat, tends to dissolution of all government’.67 In short, Taylor’s offence was justiciable by the common law for the temporal threat it entailed.

It is important to note here that Hale had already broken from the language of the House of Lords. The Lords had agreed with Justice North that Taylor would be tried in King’s Bench for his words threatened the destruction of ‘Religion and Government’; they were a threat spiritual and temporal. In Keble’s and Ventris’s reports, Hale is recorded as having claimed only that Taylor’s threat was to government; it was an exclusively temporal threat. In doing so, he located his judgment within the broader work of King’s Bench during his term as Chief Justice, and with the standard Restoration practice of King’s Bench of treating the common law as an exclusively temporal jurisdiction. For Hale, it was the temporal implications of Taylor’s words that rendered his offence justiciable at common law.

66 Taylor’s Case (1675). 67 Dominus Rex and Tayler (1675). 243

In addition to this distinguishing of common and ecclesiastical law – this affirmation of the common law’s independence from the Church – Hale’s judgment affirmed the common law’s independence from king and parliament. For he did not define Taylor’s offence in terms of the extensive legislation that could have been brought to bear on it; the Act of Supremacy’s definition of heresy, or the Clarendon Code’s prohibitions against nonconformity. Although historians almost universally treat Taylor’s crime as blasphemy,68 both Keble’s reports record Taylor’s conviction as having been for ‘slander’,69 or the common law offence of defamation. Ventris made no reference to crime, but Tremayne recorded that Taylor’s intention had been to ‘defame’.70 Tremayne and Keble both used the word ‘blasphemy’ in their reports,71 but neither recorded it as the offence for which Taylor was convicted. We encountered numerous defamation trials overseen by Hale in the previous section, and the casting of the common law’s jurisdiction performed by Hale there assists us now in interpreting the reports of Taylor’s Case.

As we have seen, the offence of defamation evolved largely within the common law, with little external influence from statute. Though defamation was typically a civil suit, it could also be a crime. By classifying Taylor’s offence as defamation, Hale thus located his crime in an action external to the law-making powers of king and parliament, built on the insular process of precedent-application within the common law. This was no superficial classification, either, for Hale described Taylor’s offence within the idiom of common law defamation as this jurisdiction was exercised by the Restoration King’s Bench: as the uttering of insulting words threatening temporal harm. For evidence of this, we can turn to any of the reports on Taylor’s Case. Taylor’s words were, in Keble’s account of the judgment, ‘contumelious reproaches’,72 and in Ventris’s a ‘reproach’.73 These reproaches occasioned temporal harm, dissolving ‘all government’ in Keble’s report,74 and ‘civil societies’ in Ventris’s.75

68 See, for example: C. John Sommerville, The Secularization of Early Modern England (New York: Oxford University Press, 1992), 127; Visconsi, ‘The Invention of Criminal Blasphemy’; Hunter, ‘English Blasphemy’; , A History of the Criminal Law of England: Volume 2 (London: 1883), 470. William Holdsworth described Taylor’s offence as ‘blasphemous libel’, a phrase used in no reports of the case: W. S. Holdsworth, A History of English Law: Volume 8 (London: Methuen & Co. Ltd, 1925), 407-8. 69 Dominus Rex and Tayler (1675); Dominus Rex and Taylor (1675). 70 ‘The King against Taylor’, 226. 71 Dominus Rex and Taylor (1675); ‘The King against Taylor’, 227. 72 Dominus Rex and Tayler (1675). 73 Taylor’s Case (1675). 74 Dominus Rex and Tayler (1675). 75 Taylor’s Case (1675). 244

That Hale’s judgment sought to avoid the language of Church, king, and parliament is affirmed when placed alongside Tremayne’s report of the case, the only report which features the information brought against Taylor by the prosecution. As recorded by Tremayne, Attorney General William Jones’s information against Taylor followed closely the language of statute law, casting his offence as both temporal and spiritual and classifying it as ‘blasphemy’. Taylor had spoken ‘wickedly, and in a blasphemous manner’, had ‘blaspheme[d]’, and the prosecution even suggested that the offence was the result of satanic influence: he had been ‘moved and seduced by the instigation of the devil’.76

In alleging such offences, the information claimed that Taylor had threatened ‘government and society’, and ‘possession of the true christian religion’; it was a threat temporal and spiritual.77 Hale rejected such framing of Taylor’s offence: to the extent that his offence was spiritual, it could be tried in the Church courts, but for its temporal effects Taylor was in the common law. This is a crucial point, for it reveals the degree to which Hale was actively seeking to cast Taylor’s offence in terms of defamation precedent, rejecting the prosecution’s approach to instead redescribe the offence in a manner consistent with his rhetoric of judicial office.

Hale’s sentencing of Taylor also broke with ecclesiastical approaches to heresy, evincing a commitment to the redress of temporal damage. As we saw in Chapter 4, the approach of ecclesiastical judges involved seeking repentance from heretics, and only where penance was refused, was punishment delivered. Legate was offered abjuration, and Slater was required to beg for forgiveness. No such options were offered to Taylor, whose behaviour, rather than his soul, was treated by Hale as the subject in need for reform. Taylor was fined one thousand pounds, pilloried with an explanation of his crime hung from his neck, and imprisoned until he provided lifetime sureties for good behaviour.78 A sureties requirement for good behaviour shows a concern with the maintenance of order, while financial penalties were standard in defamation cases.79

The reference in Tremayne’s report to Taylor’s words being spoken ‘in the presence and hearing of divers liege subjects’ is particularly relevant here, too.80 We encountered a similar

76 ‘The King against Taylor’, 226-7. 77 Ibid., 227. 78 Taylor’s Case (1675); Dominus Rex and Taylor (1675); ‘The King against Taylor’, 228. 79 For example, King v Philpott (1675) 699 ER 89, 392; Dominus Rex and Roberts (1675) 14 ER 84, 889. 80 ‘The King against Taylor’, 227. 245 concern in David Williams against Owen. There, the intention behind the words in question was irrelevant. Rather, what was crucial for King’s Bench was that others had taken the words in a manner that suggested the plaintiff had committed a felony; the point was not what the defendant had intended by his words, but the temporal effect of them. Here, it was irrelevant whether or not Taylor believed the statements he made. What was relevant was that others had heard them, and could interpret them in a way that endangered the realm. We did not see similar concerns in ecclesiastical trials, where the belief of the accused was crucial, and the presence of others immaterial. In High Commission, for example, Samuel Pretty’s heresy was proved by demonstrating that he maintained his views from the pulpit and ‘in private conference’.81

Though casting Taylor’s offence in terms of common law defamation constituted an affirmation of judicial independence, statute played a minor role in Hale’s judgment, too. In particular, it provided the basis by which Hale modified the common law’s defamation jurisdiction to expand who could be a victim of defamation. For Hale, Taylor’s defamation was against God and religion. According to Keble, Taylor’s ‘contumelious reproaches’ attacked ‘God, or the religion establisht’.82 In Ventris’s recounting, Taylor’s was an ‘offence to God and religion’.83 This was not, to be clear, an account of spiritual threat, for Hale’s judgment gave no attention to the harm to the Church or its work, but rather treated his offence as an insult to God which threatened the state. The juridical model is redolent of scandalum magnatum offences or criminal defamation trials such as The King against Executors of Summers. In these actions, it was not so much the offence to the slandered party that needed redress but the destabilising effects created by it.

Here, it was not Taylor’s offence to God but the damage to the state his insulting words threatened that was at issue. Hale was not clear in explicating how he modified common law defamation such that God could be considered a party to a defamation case, but an explanation appears to be implicit in his judgment. Keble quoted Hale as having said that because ‘Christian religion is a part of the law it self… injuries to God are as punishable as to the King, or any common person’.84 As Christianity was enshrined in law, in other words, God had legal personality.

81 ‘The Case against Samuel Pretty, clark’, 182. 82 Dominus Rex and Tayler (1675). 83 Taylor’s Case (1675). 84 Dominus Rex and Tayler (1675). 246

This enshrining cannot be taken as evidence of the Church’s supremacy over common law, given the repeated affirmations by King’s Bench of their independence from the Church. The more plausible reading of Hale’s statement is that he was arguing that the Clarendon Code had embedded Christianity in English law such that God now held legal personality. The Clarendon Code had legislated religious conformity, and Hale’s Bench had upheld this legislation in Dominus Rex and Fenton and Low and Hayward. Prior to the introduction of the Code, offences like Taylor’s were governed as heresy, not as common law offences against God as a legal character. In the Code’s wake, Taylor was convicted for defaming God.

In short, following legislation enfolding the Church of England within statute law, Hale claimed that God could be defamed on account of Christianity’s position in English law. Historians have taken this phrase as evidence of the alignment of common law with statute, and it is, on this more contextual reading, an acknowledgement of this statute law. It is not, though, a claim that Hale’s judgment followed statute, for the centrepiece of the judgment was a recitation of common law defamation precedent. Rather, statute law enabled God to possess the requisite legal personality to be subject to this common law action. Hale’s judgment ultimately blended lex non scripta and lex scripta, with the former taking pre-eminent position; it was a judgment built from the interpretation and adaptation of extant law, in particular extant common law.

Conclusion The common lawyers, for the most part, operated an insular jurisdiction they had developed themselves, focused on temporal redress and largely grounded in custom, which was to be found in precedent. Rather than consistent reference to the king or parliament, or the Church, all authorities who claimed superiority over the common lawyers, the judiciary referred instead to their own work. In doing so, they exercised an office that stood independent from other institutions, cultivated through a deep knowledge of past law, which judges interpreted and applied to the cases before them. Their office resembled not Hobbes’s account of judicial office entirely subordinate to king, but was closer to Hale’s, of an office independent given its grounding in precedent accretion and application.

The bulk of judicial work was not in the implementation of statute, but the application of the lex non scripta, the unwritten laws of the English realm that were to be found in the records of 247 past judgments. For the Restoration King’s Bench, the vast majority of their work was thus beyond the scope of king and parliament, rooted instead in the insular practice of reading and applying past judgments. We can see this most clearly with common law defamation, one of the most common forms of action governed by the Restoration King’s Bench. Between 1660 and 1688, the justices of King’s Bench approached defamation cases through a desire to render their judgments consistent with extant law, uniformly treating defamation as the uttering of insulting words occasioning or threatening temporal harm.

That the judiciary largely exercised their office to affirm its independence from monarchical, parliamentary, and ecclesiastical office, can be seen most acutely in Taylor’s Case, presided over by Hale. Taylor’s Case has been subjected to extensive misinterpretation, read, in particular, as evidence of the common law’s subordination to confessionalised legislation. In this chapter, we contextualised Hale’s judgment in Taylor’s Case with regard to the history of ecclesiastical and statutory heresy, the relationship between the Restoration ecclesiastical and common law, the Restoration defamation jurisdiction, and the Clarendon Code. This approach confirmed that Hale was consciously eschewing legislative and ecclesiastical attempts at legal intervention.

The historiography of Taylor’s Case that sees it as a constitutional ‘bedding down’ or an affirmation of a stable Restoration order in which Church and state were unified,85 is consequently mistaken. For Hale’s judgment was a rejection both of ecclesiastical pretences to control the common law, and the claims of king and parliament to do so. In his rhetoric of judicial office, Hale had denied those claims which sought to ground the office in the experience of the clergy or Biblical law, or in sovereign will, and he exercised his office with a similar determination here, as he defined Taylor’s offence in the exclusively temporal terms of common law defamation.

It is a curiosity of the literature on Taylor’s Case to simultaneously claim that Taylor was convicted of blasphemy and that Hale’s judgment showed the constitutional stability of Restoration England. For blasphemy was not a statutory offence. Indeed, had Hale’s Bench proceeded with an action for blasphemy, their work would have been even more radical: the entire invention of a new offence at common law. As it was, Hale modified the existing action

85 Ian Hunter, ‘English Blasphemy’, 412; Clark, English Society 1660-1832, 492. 248 of common law defamation, expanding it to cover God as a subject of defamatory suits. This granting of legal personality to God, Hale claimed, was on the basis of the Clarendon Code legislation. The Restoration settlement had interwoven the Church of England and the English state, and God carried new legal personality as a result; a party who could be a victim of defamation.

Given his approach to Taylor’s Case, Hale’s judgment is strong evidence against the presumption to treat the common law as a subordinate discipline in the Restoration. For it is an exemplary case in which the common lawyers confronted a subject which clergy, king, and parliament had all asserted governance over. And it reveals the common lawyers rejecting all these approaches for the insular process of common law reasoning; the collation and adaptation of precedent. As in the previous chapters, the findings of this chapter reveal a contested Restoration state, in which common lawyers like Hale exercised their office, which entailed the implementation of the kingdom’s laws, in a manner antagonistic to subservience towards king, parliament, and Church, and with a dedication towards the insular processes of common law reasoning.

Further, if this law was confessionalised, it was not confessionalised in the terms of the Church, which emphasised spiritual concerns. Of course, Taylor’s Case does not offer evidence of a secularising movement, despite Hale’s subsumption of Taylor’s offence to the temporal jurisdiction of the common law. Elliot Visconsi’s suggestion that Hale had a ‘chiefly secular purpose in mind’ is groundless,86 not only for the anachronism of Visconsi’s understanding of the secular.87 Hale’s judgment, if focused on the redress of temporal harm rather than Taylor’s salvation, relied on an account of Clarendon Code legislation generating for God a legal personality, hardly a secular premise.

Hale’s judgment, in short, was premised on the existence of God and God’s presence as a personality within the English legal system. God held a legal status, according to Hale, and could thus be defamed. Hale’s judgment was not an exclusion of the religious, but a repositioning of its status, for asserting God’s legal personality enabled Hale to treat defamation of God as a temporal, rather than spiritual, concern. This was a confessionalisation

86 Visconsi, ‘The Invention of Criminal Blasphemy’, 35. 87 Ian Hunter, ‘Secularization: Birth of a Modern Combat Concept’, Modern Intellectual History 12:1 (2015), 1- 32. 249 which prioritised temporal over spiritual, the safety of the state over salvific imperatives, and affirmed the common law and the unique skills of its judiciary over king and parliament, who held a marginal role in law-making, and the Church of England, which held no role.

250

Part 2: Conclusion

Part 2 of this thesis has traversed an extensive legal history, providing us with an understanding of Restoration law as contested between judiciary, king, parliament, and Church, as the judiciary emphasised their independence from rival institutions, administering their office through a focus on the temporal and customary. Chapter 4 uncovered the history of statutory heresy and blasphemy, ecclesiastical heresy, and the Restoration legislative governance of conformity. The Catholic binary of dual spiritual and temporal spheres within a realm played a significant role in this history. Early statute law granted the Church courts an expansive jurisdiction in both temporal and spiritual matters, but this jurisdiction was curtailed under Elizabeth.

Elizabeth’s Act of Supremacy declared her the supreme governor of the Church, and reduced its scope to administering only spiritual matters. Early seventeenth century Church courts affirmed their spiritual jurisdiction as expansive, a move opposed by Archbishop Laud. The rhetoric of spiritual and temporal danger remained in the Civil Wars and Interregnum statutes against blasphemy. Though early Restoration statutes regarding religious conformity framed the problem as spiritual and temporal, legislation increasingly treated it as exclusively temporal, a marginalisation of a Church which was at the time affirming its spiritual scope. Indeed, even Charles’s and James’s attempts to suspend the penal statutes on religion invoked the rhetoric of temporal danger to the exclusion of the spiritual.

In Chapter 5, we turned to the Court of King’s Bench, the highest common law court in England, and the work of the judges there, focusing on the ways in which they interacted with the Restoration religious settlement. The Bench engaged with the statute law – the lex scripta – regarding religion in a manner that denied any subordination. The justices relied on the Clarendon Code selectively to assert their independence from king and Church. Only when Charles sought to intervene in the legislative governance of religion with his Royal Declaration of Indulgence in 1672 did the judiciary begin consistently convicting under the Clarendon Code.

This practice continued in the 1680s in the face of monarchical opposition to the penal laws against religion. Further, Rainsford’s Bench used the temporal framing of the Clarendon Code to assert the common law’s capacity to try nonconformists; if nonconformity was defined by 251 legislation as a temporal concern, and the common law courts tried temporal matters, then nonconformity was within the common law’s jurisdiction. More generally, the Restoration Bench claimed in unison that the common law was the principal jurisdiction for hearing temporal and customary matters, while the ecclesiastical courts existed to hear spiritual concerns, matters relating to the souls of the English people.

In Chapter 6, we shifted from the lex scripta to the lex non scripta, further emphasising the degree to which the Restoration King’s Bench exercised their office as independent. The largest part of their work did not involve statute, as most cases were adjudicated through reference to laws that had been developed within the common law itself, one of the most common of which was defamation. Only scandalum magnatum defamation offences were shaped by statute. Otherwise, the jurisdiction existed outside of the work of king and parliament; the common lawyers the only legal authority. Across the Restoration, King’s Bench consistently affirmed the common law’s temporal focus in treating defamation as the uttering of insults occasioning or threatening temporal damage, a uniformity revealing a close adherence to extant law. This point was further developed in relation to Taylor’s Case, the 1675 conviction of John Taylor by Hale’s Bench for defaming God. Here, Hale adapted common law defamation precedent to encompass Taylor’s offence, eschewing alternative statutory and ecclesiastical approaches. For Hale, Taylor had insulted God, and this threatened the realm, and his words were actionable on this basis.

252

Conclusion

Intellectual historians have treated sovereignty, understood as the possession of an untrammelled legal authority within a territory, as the dominant subject of dispute in seventeenth century England. Sovereignty, in this rendition, was a concept contested by rival political theorists propounding alternative ideologies regarding its location; whether it was found, for example, in the king alone, or conjointly in king and parliament. For these scholars, it entailed a hierarchical legal power expressed through legislation. Who held this power was contested, but the substance of sovereignty itself was supposedly not. This thesis has taken an alternative route to understanding disputes over sovereignty in early modern England to demonstrate that sovereignty was not the apex of a hierarchical juridical regime but one legal power among multiple, and that a key limit on sovereign power was the independent common law. The starting point has not been theory, but the casuistical idiom of office. Office rhetoric took the variegated official landscape of England as its starting point. As such, debate cohered around the particular rights and duties of different office holders.

In relation to judicial office, as we saw in Part 1, rhetoric focused on the particular courtroom comportment appropriate to the judge, as opponents sought to configure the practice of judicial officeholding. In this dispute, the very meaning of sovereignty was in contest. Absolutists contended it entailed an exclusive power to make law, and immunity from law. Against this, clergy argued the sovereign king was marginal to a legal system in which the clerical instruction of the judiciary was key. And common lawyers contended that sovereignty referred to a power circumscribed by the common law to contribute to the production of some laws. In approaching sovereignty as hierarchical, intellectual historians have taken a side in this contest, mistaking a particular move in the battle over sovereign office for a neutral articulation of it.

In Part 2 we saw that contrary to a scholarship that, where it has encountered the common law, has assumed its subordination to external institutions, the judges of the Restoration King’s Bench largely exercised their office in defiance of any notion of judicial subservience. In relation to the Church, the King’s Bench judiciary repeatedly asserted a strict boundary between the rival jurisdictions; the common law focused on matters customary and temporal, the ecclesiastical law devoted to salvific concerns. In a denial of subordination to king and parliament, the King’s Bench judiciary largely relied on the lex non scripta, which they drew from the records of the common law itself to redress temporal damage. Moreover, they 253 deployed legislation strategically, principally to assert independence. This independence was exemplified in Taylor’s Case, in which the judiciary elevated precedent over statute to convict Taylor of slandering God. An offence that would have been defined under statute as religious nonconformity, or by ecclesiastical courts as heresy, was instead judged by Hale in the terms of the common law’s temporally-focused defamation jurisdiction.

Reliance on the Clarendon Code became consistent in King’s Bench only after Charles’s Royal Declaration of Indulgence in 1672, as the judiciary deployed the penal laws against nonconformity in the face of monarchical opposition to them. This practice continued into the 1680s, accompanied by judgments like The Case of the Seven Bishops, in which judicial office curtailed monarchical. In short, early modern England was not characterised by an omnipotent sovereign but by a fragmented constitutional order. King and parliament made statute law, and this was approached ambivalently by a judiciary that defined their jurisdiction as customary because it was grounded in precedent, and temporal because it was differentiated from the spiritual Church courts. To appropriate Foucault’s injunction that in contemporary political theory we must ‘cut off the King’s head’ because the world around us is not constituted chiefly by sovereignty,1 intellectual historians of early modern England must conduct a similar execution to rid themselves of the over-emphasis on sovereignty in their accounts.2

An important avenue of new research opened up by the conclusion that sovereignty entailed a legal power among other relative powers, most notably the common law, which restrained the sovereign, regards the 1701 Act of Settlement. For this statute, which built on the 1689 Bill of Rights,3 included a provision guaranteeing that the judiciary would only be appointed ‘Quam diu se bene Gesserint’ (as long as he shall behave himself well). The Act of Settlement, that is, legislatively enshrined the principle that judges could only be appointed during good behaviour; no longer could they be appointed during good pleasure, the basis on which Charles II and James II dismissed so many judges during the Restoration. Now, their removal required the involvement of both houses of parliament.4 Accompanying the exercise of judicial office as independent, there was now a formalisation of the judiciary’s status that reduced the

1 Michel Foucault, ‘Truth and Power’, in Colin Gordon, ed., Power/Knowledge (New York: Random House, 1980), 109-33, at 121. 2 As does Foucault, ironically (Ibid.). 3 ‘William and Mary, 1688: An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne’, in John Raithby, ed., Statutes of the Realm: Volume 6 (London: 1819), 142-5. 4 ‘William III, 1700 & 1701: An Act for the further Limitation of the Crown’, in John Raithby, ed., Statutes of the Realm: Volume 7 (London: 1820), 636-8. 254 precarity of their office. Though the Act of Settlement has since been updated, the provisions by which judges in England hold office remain the same.5

This history is of great significance, for one of the key ways we speak of modern democracies is in terms of a separation of powers between executive, legislative, and judicial. Executive and legislative overlap in Australia and England, while they do not in the United States, but there is an acceptance of judicial independence in each country. The rhetoric of separation of powers emerged in the late eighteenth century,6 but in this thesis we have traced the contest that led to the recognition of judicial independence in statute. Indeed, it is unsurprising that this pre- history to our contemporary rhetoric of the separation of powers begins with a debate over judicial office, for the rhetoric of separation of powers remains one of the most obvious contemporary examples of the idiom of office. The Restoration scheme of a sovereign king, parliament, and judiciary, all of whom performed different functions within the English state, resembles our contemporary model of an executive, legislature, and judiciary.

A further avenue for new scholarship regards the common law’s temporal focus. Clark, and those who have followed his arguments, are right to acknowledge that Restoration England was a confessional state, but are mistaken in the further assertion that confessionalisation entailed a unification of Church and state.7 Even when scholars have revealed the Restoration settlement as a conflictual space, they have not done so with regard to the law.8 To this end, this thesis is the first demonstration that the Restoration marks the marginalisation of the Church of England as a juridical entity. Common lawyers wielded the distinction between temporal and spiritual to remove matters from ecclesiastical oversight. The progressive elision of spiritual concerns from statute provided the common lawyers with further ammunition for these moves, and resulted in a legislative regime that prioritised state preservation over the Church’s salvific concerns. None of this means the Restoration was a secularising moment:

5 See C. H. McIlwain, ‘The Tenure of English Judges’, The American Political Science Review 7:2 (1913), 217- 29. 6 For example, James Madison, The Federalist Papers: No. 47 (New York: 1788); Brooke Boothby, Observations on the Appeal from the New to the Old Whigs (London: 1792), 173-4. 7 Hunter, ‘English Blasphemy’; J. G. A. Pocock, ‘Conservative Enlightenment and Democratic Revolutions: the American and French Cases in British Perspective’, Government and Opposition 24:1 (1989), 81-105, at 84; Julia Rudolph, Revolution by Degrees (New York: Palgrave Macmillan, 2002), Chapter 1; W. M. Jacob, The Clerical Profession in the Long Eighteenth Century (Oxford: Oxford University Press, 2007), 8. 8 Rose, ‘By Law Established’; Rose, Godly Kingship in Restoration England; Rose, ‘Royal Ecclesiastical Supremacy and the Restoration Church’; Goldie, ‘The Theory of Religious Intolerance in Restoration England’; Spurr, ‘Schism and the Restoration Church’; Southcombe, ‘Dissent and the Restoration Church of England’; De Krey, ‘Rethinking the Restoration’; Tyacke, ‘From Laudians to Latitudinarians’. 255 adherence to the Church remained mandatory, and the King’s Bench upheld numerous convictions for nonconformity. But nonconformity was principally approached as a danger for the threat it posed to the realm’s peace, not for its anti-salvific qualities.

When considering the history of secularisation, intellectual historians have disagreed over whether the seventeenth century constituted an epochal transformation away from the configuration of society in terms of religious belief.9 This thesis has avoided the language of secularisation, preferring instead to adhere more closely to the language with which inhabitants of the seventeenth century described their own world. In that context, ‘secular’ was used rarely, and only to denote institutions that were not directly Church governed, such as the common law courts. The more common rhetorical framing was of spiritual and temporal. But in the decline of the spiritual relative to the temporal as a legal concern, historians of secularisation might look for the ways in which religion declined as a central feature of English society.

The most pointed attempt in this period at constructing a legal regime that did not persecute on confessional lines was James II’s Royal Declaration of Indulgence, which was justified in the language of temporal threat: policing religion did more harm than help to the state. In short, the most substantial danger to a confessional England was the argument that confessionalising was a danger to the state. If this history proves relevant to the history of secularisation, then the traditional means by which secularisation has been approached, as a history which sees the emergence of liberalism as key, is mistaken. Rather, it was the cohering of legal regimes around state preservation, not around normative doctrines of human value, rights, and reason, that eroded religion’s legal force.

9 For those in favour, see: Skinner, The Foundations of Modern Political Thought, II: 352; Sommerville, The Secularization of Early Modern England; Peter Harrison, ‘Science and Secularization’, Intellectual History Review 27:1 (2017), 47-70, at 56-61. For those against, see: Clark, English Society 1660-1832; Hunter, ‘English Blasphemy’; Hunter, ‘Secularization’. 256

Appendix

A = found actionable, D = action denied, N = no result recorded, C = concluded ‘Concluded’ refers to those cases where the central action, such as a defamation suit, was not resolved, but a sub-question was resolved, such as where the case could be tried. Case Other reports Action Outcome Coke, Edward. ‘De Libellis Famosis’. In Steve Sheppard, ed. The Selected Writings and Speeches of Sir Edward Coke: Volume 1 (Indianapolis: Liberty Scandalum Fund, 2003), 145-9 magnatum A ‘The Cases of Bartholomew Legatt and Edward Wightman, for Heresy: 10 Jac. I. A.D. 1612.’. In T. B. Howell, ed. A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783: Volume 2 (London: 1816), 727-38 Heresy A ‘Proceedings on the Habeas Corpus, brought by Sir Thomas Darnel, Sir John Cobet, Sir Walter Earl, Sir John Heveningham, and Sir Edward Hampden, at the King’s-bench, in Westminster-hall: 3 Charles I. A. D. 1627: Together with the Proceedings in Parliament, relating to the Liberty of the Subject: A.D. 1628 and 1629.’. In T. B. Howell, ed. Cobbett’s Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Present Time: Volume 3 (London: 1809), 1- 234 Habeas corpus D ‘The Case against Samuel Pretty, clark’. In Samuel Rawson Gardiner, ed. Reports of Cases in the Courts of Star Chamber and High Commission (London: Camden Society, 1886), 181-6 Heresy A ‘William Slater, Doctor of Divinity’. In Samuel Rawson Gardiner, ed. Reports of Cases in the Courts of Star Chamber and High Commission Heresy A 257

(London: Camden Society, 1886), 186-8 King Charles his Tryal at the High Court of Justice in Westminster Hall (London: 1655) High Treason A ‘Proceedings in the House of Commons against James Nayler, for Blasphemy, and other Misdemeanors: 8 Charles II. A. D. 1656’. In T. B. Howell, ed. Cobbett’s Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Present Time: Volume 5 (London: 1810), 801- 42 Blasphemy A Rawlins against - (1661) 47 ER 83, 783 Defamation D Rawlins against - (1661) 16 ER 83, 776-7 Bastard (1661) 53 ER 83, 785 Defamation D Green against Green (1661) 91 ER 83, 795 Defamation A Green against Green (1661) 33 ER 83, 781 Nuttal against Page (1661) 16 ER 83, 808 Defamation A Nuttal against Page (1661) 6 ER 83, 804-5 29 (1661) 29 ER 83, 812 Defamation A Dolbin against White (1661) 13 ER 83, 844 Defamation A 21 (1661) 21 ER 83, 847 Defamation D Whitcher (1661) 26 ER 83, 848 Defamation D Daniel and Turpin (1661) 36 ER 83, 852 Defamation D Welden and Johnson (1661) 38 ER 83, 852 Defamation D - against Wood (1661) 45 ER 83, 854 Defamation A Maskalt against Chirkall (1661) 47 ER 83, 854 Defamation A Slebb against Smith (1661) 66 ER 83, 859-60 Defamation A Dacy against Linch (1661) 76 ER 83, 862 Defamation A Dacy versus Linch (1661) ER 83, 20 258

Dacie against Linch (1661) 150 ER 83, 887 Dacie against Linch (1661) 158 ER 83, 889 November 16 (1661) 130 ER 83, 882 Defamation C Wallis against Ust (1661) 149 ER 83, 887 Defamation D Wallis against Ust (1661) 108 ER 83, 873 Bill against Neale (1661) 18 ER 83, 905 Defamation N Toomes against - (1661) 32 ER 83, 911 Defamation D Dr Withringtons Case (1661) 57 ER 83, 918 Mandamus D Dr Witheringtons Case (1661) 3 ER 83, 804 Dr Withringtons Case (1661) 89 ER 83, 868-9 Rumsey against Boucher (1661) 83 ER 83, 923 Defamation A 86 (1661) 86 ER 83, 923 Defamation D West against Philips (1662) ER 83, 930 Defamation A Philips against West (1661) 76 ER 83, 922 Philips against West (1661) 81 ER 83, 923 Motley against Slany (1662) 60 ER 83, 941 Defamation A Monday, May 5 (1662) 94 ER 83, 949 Prohibition A Warner against Ellison (1662) 117 ER 83, 954 Defamation A Bill against Neal (1662) 119 ER 83, 954 Defamation N The King against Peachie (1662) 125 ER 83, 955 Nonconformity D 133 (1662) 133 ER 83, 956 Prohibition A Orton against Fuller (1662) 9 ER 83, 959 Defamation A Orton against Fuller (1662) 116 ER 83, 953-4 Rogers and his Wife against Cocke (1662) 36 ER 83, 967 Defamation A Shepherd against Wakeman (1662) 57 ER 83, 974 Defamation A Shepheard against Wakeman (1662) 55 ER 83, 939 259

Shepherd against Wakeman (1662) 24 ER 83, 963 Shepherd against Wakeman (1662) 59 ER 83, 1052 Littleboy against Wright (1662) 63 ER 83, 975 Defamation N Crawford against Dawson (1662) 22 ER 83, 984 Defamation A Friday, October 31 (1662) 39 ER 83, 990 Prohibition A Brown against Charlton (1662) 52 ER 83, 994 Defamation A Tull against Osbaston (1662) 60 ER 83, 998 Prohibition A Butler against Yateman (1662) 66 ER 83, 999-1000 Prohibition D 71 (1662) 71 ER 83, 1001 Prohibition D Crawford against Middleton (1662) 79 ER 83, 1004-5 Defamation D Crawford against Middleton (1662) 20 ER 83, 984 Crawford against Middleton (1662) 38 ER 83, 990 Manby against Scot (1662) 92 ER 83, 1008-9 Prohibition D 95 (1662) 95 ER 83, 1010 Prohibition C Saunders against Edwards (1662) 99 ER 83, 1011-2 Defamation D Davies against Jones (1662) 107 ER 83, 1014 Defamation A Davies versus Jones (1662) ER 83, 35 Caus against Roberts (1662) 131 ER 83, 1028 Defamation D Parker against Williams (1662) 14 ER 83, 1037 Prohibition A Buxton against Bateman (1662) 15 ER 84, 1037 Prohibition A Buxton against Bateman (1662) 67 ER 83, 1000 Buxton against Bateman (1662) 94 ER 83, 1009-10 Buxton against Bateman (1662) 139 ER 83, 1029 260

Buxton against Bateman (1662) 54 ER 83, 1051 Neale against Dennise (1662) 22 ER 83, 1038 Defamation N King against Taylor (1662) 63 ER 83, 1055 Defamation A The King against Taylor (1662) 33 ER 83, 1042 Booth against Leach (1662) 77 ER 83, 1058 Defamation A Booth against Leech (1662) 28 ER 83, 1041 Harvie against Martyn (1663) 20 ER 83, 1067 Defamation N Glanvell against Gullison (1663) 22 ER 83, 1067 Defamation N Glanvill against Gullen (1663) 99 ER 83, 1086 Bonithon against Kendall (1663) 28 ER 83, 1068 Defamation D Fermer against Bennit (1663) 34 ER 83, 1070 Prohibition A Rogers against Wescot (1663) 59 ER 83, 1077 Prohibition C The King against Mayo (1663) 74 ER 83, 1081 Defamation A Lord Stanford against Needham Scandalum (1663) 93 ER 83, 1085 magnatum C 101 (1663) 101 ER 83, 1087 Defamation N Wareham (1663) 12 ER 83, 1091 Dr Kings Case of Colemanstreet (1663) 104 ER 83, 1087 Mandamus A Dr King's Case, Archdeacon of London (1663) 6 ER 83, 1089 Everard against Pory (1663) 8 ER 83, 1089-90 Prohibition A 10 (1663) 10 ER 83, 1090 Prohibition D Henacre and Bets against - (1663) 15 ER 83, 1091 Defamation A Boucher against - (1663) 36 ER 83, 1099 Prohibition D Pope against Ramsey (1663) 41 ER 83, 1102 Prohibition D Host against Oakeman (1663) 42 ER 83, 1102 Defamation N Collins against Man (1663) 77 ER 83, 1111 Defamation C 261

The King against Greene (1663) 82 ER 83, 1112 Defamation C Ayer against Steeply (1663) 19 ER 83, 1117 Defamation D Greenwood (1663) 25 ER 83, 1118 Defamation A Munday against Mills (1663) 27 ER 83, 1118 Defamation D Munday against Mills (1663) 85 ER 83, 1142 Hayes against Wheler (1663) 40 ER 83, 1122 Defamation N Terry against Couper (1663) 75 ER 83, 1136 Defamation N Terry against Couper (1663) 15 ER 83, 1161-2 Baudink against Bushel (1663) 76 ER 83, 1136 Prohibition D Towerson against Winget (1663) 77 ER 83, 1136 Prohibition A Wheeler & Uxor against Welsh & Uxor (1663) 78 ER 83, 1137 Defamation C The King against Patrick (1663) 84 ER 83, 1141-2 Mandamus N Took against Ledgierd (1663) 86 ER 83, 1142 Prohibition D 113 (1663) 113 ER 83, 1152 Defamation N Fords Case (1663) 2 ER 83, 1157 Prohibition N Trussels Case (1663) 82 ER 83, 1183 Prohibition D Richardson against Fauconbridge, Fallowfield, &c (1663) 89 ER 83, 1185 Prohibition A Gerrard against Lyon (1664) 6 ER 83, 1188 Defamation A Atkins against Down (1664) 20 ER 83, 1192 Defamation A 44 (1664) 44 ER 83, 1203 Prohibition D 61 (1664) 61 ER 83, 1208 Prohibition D Brigs against Brecknock (1664) 66 ER 83, 1209 Prohibition D The King against Dale Churchwarden of Spalding (1664) 4 ER 83, 1211 Nonconformity N Bois against Bois (1664) 6 ER 83, 1211 Defamation N Bois against Bois (1664) 62 ER 83, 1228 Keble and Miller against Sambroke (1664) 33 ER 83, 1219 Prohibition D 262

Page against Clerke (1664) 71 ER 83, 1230 Defamation N Smalbrook against Slader (1664) 73 ER 83, 1230 Prohibition D Smallbrook against Slader (1664) 7 ER 83, 1211 Pinder against Coots (1664) 78 ER 83, 1231 Prohibition D The King against Prin (1664) 8 ER 83, 1235 Defamation N Lord Fauconbridge against Dean and Chapter of York (1664) 13 ER 83, 1237 Prohibition N 76 (1664) 76 ER 83, 1231 Coleman & Uxor against Harcote & Uxor (1664) 47 ER 83, 1245-6 Defamation D Ellis against Creswell (1664) 58 ER 83, 1248 Defamation C Bull against Mayo (1664) 63 ER 83, 1249-50 Defamation D Leet against The Bishop of Exeter (1664) 71 ER 83, 1253 Prohibition D Proby against Marquess of Dorchester Scandalum (1664) 90 ER 83, 1258-9 magnatum N Edwards against - (1664) 92 ER 83, 1259 Defamation A Butler against Lydiat (1664) 105 ER 83, 1263 Defamation N Scurre against The Archbishop of York (1664) 116 ER 83, 1265 Prohibition D Scurre against The Official of York (1664) 65 ER 83, 1209 Scurre against The Archbishop of York (1664) 88 ER 83, 1258 Scurre against The Archbishop of York (1664) 101 ER 83, 1262 William against Tongue (1664) 4 ER 83, 1267 Defamation C Barrington Boucher (1664) 9 ER 83, 1268 Prohibition D Corbitt against Mercyn (1664) 20 ER 83, 1272 Defamation A Corbin against Mercin (1664) 64 ER 83, 1250 263

Gill against William Co-Executor of Duhurst, Executor of J.S. (1664) 39 ER 83, 1277 Prohibition N Linch against Dacy (1664) 46 ER 83, 1278-9 Defamation N The King against Davies (1664) 55 ER 83, 1281 Nonconformity D Greenlye against Harper (1664) 69 ER 83, 1285-6 Prohibition A Ward & Uxor against Marsh & Uxor (1665) 3 ER 83, 1287 Defamation N Dr Dolben's Case (1665) 37 ER 83, 1298 Mandamus A Knight against Jaacob (1665) 53 ER 83, 1303 Prohibition N Mason against Elliot (1665) 77 ER 83, 1310 Defamation D Wilkinson against Richardson (1665) 8 ER 83, 1312 Prohibition C Lydeat against Butler (1665) 21 ER 83, 1319-20 Defamation N Marke against Guilbert (1665) 23 ER 83, 1320 Prohibition A The King against Executors of Summers (1665) 40 ER 83, 1327 Defamation A The King against Somers and Somers (1664) 7 ER 83, 1234-5 The King against Summers (1664) 42 ER 83, 1244 Reeves against Bould (1665) 5 ER 83, 1334-5 Prohibition D Corwnall against Hawes and Evesq (1666) 2 ER 84, 1 Prohibition A Hutchinson against Atkinson and Evesq (1666) 3 ER 84, 1 Prohibition N Penrose against Shepherd (1666) 4 ER 84, 2 Prohibition D Rumney or Rowney against Rosse (1666) 12 ER 84, 3-4 Prohibition A Buickley against Evesq (1666) 14 ER 84, 4 Prohibition D Valentine against Edmonds (1666) 38 ER 84, 12 Defamation A The King against Banks (1666) 43 ER 84, 14 Defamation A 264

The King against Banks and Taylor (1666) 9 ER 84, 3 Welcombe against Lake (1666) 45 ER 84, 14-5 Prohibition D Welcombe against Lake (1666) 13 ER 84, 4 Letgard against Langley (1666) 53 ER 84, 16-7 Prohibition A Legard against Elcocke and Langley (1666) 75 ER 84, 23 Plenty against Stroud (1666) 61 ER 84, 19-20 Prohibition D Philips against Hinkson (1666) 82 ER 84, 27 Prohibition A Brunt against Spencer (1666) 101 ER 84, 30 Defamation A Lush against Web (1666) 22 ER 84, 36-7 Prohibition A Shepherd Parson of Maugan against Penrose (1666) 54 ER 84, 47 Prohibition D Rod against Binks (1666) 86 ER 84, 54 Defamation D Emerson against Fairfax (1666) 4 ER 84, 56 Defamation N Cornwall against Hawes (1666) 6 ER 84, 56-7 Prohibition A Combe against Peters (1666) 10 ER 84, 58 Defamation D Crook & Uxor against Samson, and C. Churchwardens (1666) 12 ER 84, 58 Prohibition D David Williams against Owen (1666) 18 ER 84, 60 Defamation A Dr Robert's Case (1666) 33 ER 84, 65 Mandamus D The Inhabitants of Topclif (1666) 59 ER 84, 73 Prohibition D Swinborn against Gray (1666) 3 ER 84, 86-7 Prohibition A The King against Buck (1666) 5 ER 84, 87 Defamation N The King against Buck (1666) 13 ER 84, 89 Web against Newman (1666) 10 ER 84, 88 Prohibition A Remington against Harrington (1666) 53 ER 84, 103 Defamation C The King against Patrick (1666) 54 ER 84, 103-8 Mandamus A 265

Tucker against Gorges (1666) 67 ER 84, 111 Prohibition A The King against Sir H. Windham and Others, Jurors of Somersetshire (1667) Juror 2 Keble 180 misconduct A Hockley against Limbe (1667) 5 ER 84, 113 Defamation A Limbe against Hockley (1667) 14 ER 84, 115 Lake versus King (1667) 20 ER 85, 137-41 Defamation D Lake, Bar versus King (1667) 20 ER 85, 128-37 Lake against King (1668) 6 ER 84, 226 Lake and King (1668) 44 ER 84, 290-1 Lake against King (1669) 53 ER 84, 312 Lake against King (1670) 15 ER 84, 415 Lake against King (1670) 23 ER 84, 417-8 Lake against King (1670) 2 ER 86, 729 Lake against King (1671) 56 ER 84, 526 Lake against King (1671) 44 ER 84, 506 Croucher versus Collins (1667) 22 ER 85, 151-2 Prohibition C Croucher versus Collins (1667) 22 ER 85, 145-150 Baker against Morphew (1667) 35 ER 84, 126 Defamation A Brown against Haywood (1667) 48 ER 84, 132 Prohibition D The Vicar of Spelsbury against Box (1667) 56 ER 84, 134-5 Prohibition A Mitford against Emerson (1667) 79 ER 84, 141 Prohibition D Amersham against Fairfax (1667) 9 ER 84, 147 Defamation N Amersham against Fairfax (1667) 34 ER 84, 158 Amersham against Fairfax (1667) 34 ER 84, 170 266

Allison against Reeves (1667) 32 ER 84, 158 Prohibition A Alsop against Taylor (1667) 11 ER 84, 162 Defamation A Bolton against Bolton (1667) 20 ER 84, 164 Prohibition C King against Richardson (1667) 22 ER 84, 165 Defamation N Corbin against Mercin (1667) 26 ER 84, 166 Defamation D 50 (1667) 50 ER 84, 174 Prohibition D Linter against Butler (1667) 66 ER 84, 180 Defamation A Weems against Amerson (1667) 76 ER 84, 183 Prohibition D 7 (1667) 7 ER 84, 191 Defamation N Deverel Tather and Coger against Symons (1667) 29 ER 84, 197-8 Prohibition D Croucher against Collins (1667) 36 ER 84, 199 Prohibition D Loveland against Goose (1667) 60 ER 84, 208 Prohibition A Hodgson against Brown (1667) 62 ER 84, 209 Prohibition D The King against Mesme (1667) 66 ER 84, 209-10 Defamation D The King against Winne (1667) 68 ER 84, 210 Defamation C Steventon against Higgins (1668) 4 ER 84, 211 Defamation N Slaughter against Layfield and Daneil (1668) 9 ER 84, 212 Prohibition A Craft versus Boite (1668) 36 ER 85, 276-89 Defamation C Craft versus Boite (1668) 36 ER 85, 289-91 Taylor against the Archbishop of York (1668) 42 ER 84, 220 Prohibition D Taylor against the Archbishop of York (1668) 17 ER 84, 282 Coulston against Wainright (1668) 58 ER 84, 223 Prohibition D Colliar against Bourn (1668) 36 ER 84, 236 Defamation A Farmer against Jenkins (1668) 51 ER 84, 240 Defamation A 267

Farmer against Jenkins (1668) 43 ER 84, 238 Harwood & Uxor against Hardwick & Uxor (1668) 63 ER 84, 242 Defamation D Harrod & Uxor against Hardwick & Uxor (1667) 21 ER 84, 165 Harwood & Uxor against Hardwicke (1667) 91 ER 84, 188 Coquer against Simmons (1668) 78 ER 84, 246 Prohibition D Humorist against Payne (1668) 5 ER 84, 250 Defamation A Gaudy against Smyth (1668) 8 ER 84, 251 Defamation N Smedley against Heape (1668) 15 ER 84, 253 Defamation D Evesque York against Taylor (1668) 17 ER 84, 253 Prohibition D Cleveby against Adams (1668) 19 ER 84, 253 Prohibition D Matthews against - (1668) 25 ER 84, 255 Prohibition A Bath against Batty (1668) 27 ER 84, 256 Defamation D Dalton against Sad (1668) 36 ER 84, 258 Defamation A Bishop against Corbet (1668) 51 ER 84, 264 Prohibition D Bishop against Corbet (1668) 47 ER 84, 261 Clerk against Townsend (1668) 60 ER 84, 269 Prohibition A Shayler against Davis (1668) 61 ER 84, 269 Defamation A Gawdy against Smith (1668) 63 ER 84, 270 Defamation D Brown against Morris (1668) 64 ER 84, 270 Prohibition D Goodman against Barlow (1668) 72 ER 84, 272 Prohibition D 82 (1668) 82 ER 84, 274 Prohibition A Smyth against Evesque Lincoln (1668) 90 ER 84, 275 Prohibition D Bennet and Clerke (1668) 92 ER 84, 276 Prohibition D Hunt against Merrychurch (1668) 94 ER 84, 276 Defamation A 268

Bath against Battee (1668) 1 ER 84, 277 Defamation D Barns against Pruddel (1668) 21 ER 84, 283 Defamation D Philips against Clever (1668) 25 ER 84, 284 Prohibition A Harbert against Mellet (1668) 31 ER 84, 285 Prohibition D Lowther and Mowson (1668) 45 ER 84, 291 Defamation A 64 (1668) 64 ER 84, 296 Prohibition D 67 (1668) 67 ER 84, 296-7 Prohibition D Anonymus (1668) ER 86, 2 Prohibition A The Bishop of Lincoln versus Smith (1668) ER 86, 3 Prohibition D Anonymus (1668) ER 86, 3 Prohibition D Twisleton versus Hobbs (1668) ER 86, 4 Defamation D Barnes versus Bruddel (1668) ER 86, 4 Defamation D Anonymus (1668a) ER 86, 5 Prohibition D Anonymus (1668b) ER 86, 5 Prohibition A Herbert versus Merit (1668) ER 86, 6 Prohibition D Day and Pitts (1668) ER 86, 8 Prohibition D Anonymus (1669) ER 86, 13 Defamation A Crosse and Winter (1669) ER 86, 16 Defamation A Anonymus (1669) ER 86, 22-3 Defamation D Anonymus (1669) ER 86, 23 Prohibition A William Bates's Case (1669) ER 86, 29 Prohibition A Anonymus (1669) ER 86, 43 Prohibition D Lady Baltinglass's Case (1669) ER 86, 45 Prohibition D Bates against Kendal (1669) 11 ER 86, 684 Prohibition A Redman against Pyne (1669) 51 ER 86, 698 Defamation D Worthy against Liddall (1669) 58 ER 86, 700-1 Prohibition D Worsely against Lydall Uxor (1669) 99 ER 84, 363 Worsly against Lyddall (1669) 114 ER 84, 366 Maddox against Peterborough (1669) 59 ER 86, 701 Prohibition D Sir John Kirle against Osgood (1669) 61 ER 86, 701-2 Defamation A 269

Kirle against Osborn (1669) 21 ER 84, 343 Kirle against Osgood (1669) 108 ER 84, 365 Sir John Kerle versus Osgood (1669) ER 86, 35- 6 Howard against the Chancellor of (1669) 69 ER 86, 704 Prohibition N Gavell and his Wife against Berked (1669) 77 ER 86, 709 Defamation A Gavell & Uxor against Birket (1669) 6 ER 84, 370 Gavell and His Wife versus Burket (1669) ER 86, 37-8 The King against Baker (1669) 83 ER 86, 711 Defamation D The King against Baker (1669) 17 ER 84, 374 Amiles against Chambers (1669) 85 ER 86, 712 Prohibition A Tildell against Walter (1669) 106 ER 86, 723-4 Prohibition A Hingstone against Peek (1669) 11 ER 84, 300 Defamation A Wharton & Uxor against Clover (1669) 36 ER 84, 307 Defamation A Wharton and Brook (1669) ER 86, 15 Gamble against Jenny (1669) 46 ER 84, 310 Defamation A The King against Burford (1669) 47 ER 84, 310 Defamation D Croft against Winter (1669) 51 ER 84, 311 Defamation A The King against Fitton and Car (1669) 66 ER 84, 315 Defamation D Seemor against Moor (1669) 23 ER 84, 344 Defamation D Drake against Hill (1669) 25 ER 84, 344 Defamation A 59 (1669) 59 ER 84, 352 Defamation A Redman against Pill (1669) 74 ER 84, 357 Defamation D Hexill against Oyden (1669) 102 ER 84, 363 Defamation D 270

- against Maddox (1669) 105 ER 84, 364 Prohibition D Amiers against Chambers (1669) 20 ER 84, 375 Prohibition A Lord Peterborough against Mordant Scandalum (1669) 35 ER 84, 380-1 magnatum A Lord Peterborough (1669) 60 ER 84, 337 Lord Peterborough against Mordant (1669) 56 ER 84, 351 The Earl of Peterborough versus Sir John Mordant (1669) ER 86, 42 Sedan against Wainright (1669) 50 ER 85, 384 Prohibition A Parker against Hungate (1669) 52 ER 84, 385 Prohibition D Crouch against Risden (1669) 54 ER 84, 385 Prohibition D Crouch versus Risden (1669) ER 86, 43 Whitchclas against Whitchelshals, alias Wescot (1670) 50 ER 84, 399 Prohibition A Watson against Smyth (1670) 54 ER 84, 399 Prohibition A Warre against Ryder (1670) 67 ER 84, 403 Defamation A King against Standish (1670) 18 ER 84, 415-6 Jurisdiction D Kettle against Robson (1670) 26 ER 84, 418 Prohibition A Tubley against Steward (1670) 37 ER 84, 421 Defamation C The King against Saunders (1670) 35 ER 84, 437 Defamation N Hust against Clerke (1670) 43 ER 84, 438 Prohibition A Pemberton against Cheshire (1670) 56 ER 84, 442 Defamation A Powell against Jones (1670) 84 ER 84, 448 Defamation A Jones against Powel (1670) 23 ER 86, 875 Vinian against Willet (1670) 110 ER 84, 454 Defamation A Briggham against Robson (1670) 111 ER 84, 454 Prohibition A 271

The King against Warters (1670) 116 ER 84, 455 Nonconformity A Messenger against Jennings (1670) 117 ER 84, 455 Prohibition D The King against Hayworth (1670) 118 ER 84, 455-6 Habeas corpus A Zouch against Colvil (1670) 14 ER 84, 461 Defamation C Slowman against - (1670) 15 ER 84, 461 Prohibition D Slowman against the Churchwardens of Longrevil (1670) 44 ER 84, 469 Thornton against Teisdall (1670) 49 ER 84, 470 Prohibition A Tilden versus Walter (1670) ER 86, 52 Prohibition D Tilders against Walker (1670) 31 ER 84, 395 Robson's Case (1670) ER 86, 74 Prohibition N Bushel’s Case (1670) 124 ER 100 Habeas corpus A Anonymus (1671) ER 86, 78-9 Prohibition A Anonymus (1671) ER 86, 79 Mandamus A Phillips versus Kingston (1671) ER 86, 80-1 Defamation A Anonymus (1671) ER 86, 83 Prohibition D Todd versus Hastings (1671) ER 86, 81 Defamation A Todd versus Hastings (1671) 51 ER 85, 1103-7 Anonymus (1671) ER 86, 87-8 Prohibition D Ile's Case (1671) ER 86, 98 Mandamus A Isles's Case (1671) 48 ER 84, 507 Isles's Case (1671) 1 ER 84, 510 Isles's Case (1671) ER 84, 518-9 Ile's Case (1671) 31 ER 86, 104-5 Anonymus (1671) ER 86, 112 Prohibition A Anonymous (1671) 41 ER 86, 747 Prohibition A Polhill and Blany (1671) 12 ER 84, 475 Mandamus A King's Case (1671) 26 ER 84, 480 Prohibition D Heale, Vere, against Reynell, Baston (1671) 22 ER 84, 498 Nonconformity C 272

Revell and Vere against Heal and Balstaff (1671) 38 ER 84, 483 Reynell against Heal

(1671) 47 ER 84, 555 Reynell versus Heale

(1671) ER 86, 84 Hill against Pinfold (1671) 59 ER 84, 488 Prohibition D Baldwin against Forth (1671) 36 ER 84, 504 Nonconformity N King against Evesque Lincoln (1671) 46 ER 84, 506-7 Prohibition D 63 (1671) 63 ER 84, 528 Prohibition A Cliffe against Dudny (1671) 87 ER 84, 535 Prohibition A The King against Apleford (1671) 16 ER 84, 545-7 Mandamus D The King against New- College in Oxford (1671) ER 83, 430-1 Daniel Appleford's Case (1672) 48 ER 86, 750-1 Wood against Jeoffreys (1671) 23 ER 84, 548 Prohibition D Allane against Exton (1671) 43 ER 84, 554-5 Prohibition D Allane against Exton (1671) 56 ER 86, 756 Miller against Fountain (1671) 61 ER 84, 558 Prohibition D Wall against Bezier (1671) 63 ER 84, 559 Prohibition D Officer (1671) ER 83, 111 Mandamus A The King against Churchwardens of Kingscleere (1671) ER 83, 432-3 Mandamus A King v Edward Lake (1671) 14 ER 89, 12-3 Defamation A Medliff & Ux v Bucold & Ux (1672) 51 ER 89, 34 Prohibition D Betniff against Pepple (1672) ER 83, 451 Bedniff & Ux versus Pople & Ux (1672) ER 86, 148 Belniff and Pople and Uxor (1672) 39 ER 84, 593 Wood versus Coat (1672) ER 86, 132 Defamation A 273

Watts versus Rymes (1672) ER 86, 143 Defamation D Watts and Grimes (1672) 4 ER 84, 579 Thomas versus Butler (1672) ER 86, 146-8 Prohibition D The Dean and Chapter of Durham versus The Lord Archbishop of York (1672) ER 86, 151 Prohibition A Dean and Chapter of Durham's Case (1672) ER 86, 156-7 The Dean and Chapter of Durham versus the Archbishop of York (1672) ER 84, 569 Anonymus (1672) ER 86, 156 Prohibition D Stroud's Case (1672) 57 ER 86, 756 Prohibition D Newman against Kingerby (1672) ER 83, 444 Prohibition A Newcombin and Kingerby (1672) 49 ER 84, 576 Reeve against Holgate (1672) ER 83, 450 Defamation A William Juxon against The Lord Byron (1672) ER 83, 451-2 Prohibition D Knight & Alii versus Peepes (1672) 37 ER 84, 573 Prohibition N Earl Thanet and Graham (1672) 8 ER Scandalum 84, 582 magnatum C Davies and Tosier (1672) 1 ER 84, 596 Prohibition D John and Lloyd (1672) 20 ER 84, 603 Prohibition N Dr Sudbury, & c. and Archbishop of York (1672) 32 ER 84, 611-2 Prohibition A Luckham and - (1672) 3 ER 84, 618 Prohibition D Ravenhill and Mole (1673) ER 84, 638 Defamation D Goulding and Herring (1673) 11 ER 84, 641 Defamation A Thornton and Pickering (1673) 54 ER 84, 675 Prohibition A Dominus Rex and Pratt (1673) 4 ER 84, 678 Prohibition N Prall against Sir Robert Wiseman (1673) 45 ER 84, 692 Prohibition A Collins against Matthews (1673) 59 ER 84, 699 Defamation D Priestman and Langly (1673) 1 ER 84, 708 Prohibition A 274

Southam versus Allen, for Words (1673) ER 83, 121 Defamation A Anonymus (1673) ER 86, 166 Prohibition A Anonymus (1674) ER 86, 173 Defamation D Crawfoot versus Dale (1674) ER 86, 176 Defamation A Anonymus (1674) ER 86, 178 Prohibition A Anonymus (1674) ER 86, 179 Mandamus A Peters against Prideux (1674) 24 ER 86, 779 Prohibition A Peters and Prideux (1674) 30 ER 84, 750 Royston and Ivory (1674) 40 ER 84, 733-4 Defamation C Bishop of Chester against Jones Scandalum (1674) 2 ER 84, 740 magnatum C Brown and Palfry (1674) 17 ER 84, 746 Prohibition A Brown and Bard against Palfry (1674) 9 ER 84, 724 Brown against Palfry (1674) ER 83, 470 Dunkin and Dunkin (1674) 51 ER 84, 757 Mandamus D Dunkins Case (1674) 3 ER 84, 758-9 Jennings and Hunkin (1674) 7 ER 84, 760 Defamation C Jennings and Hunkin (1675) 59 ER 84, 849 Hoddard against the Bishop of Excester (1674) 74 ER 84, 780-1 Prohibition A Musgrave and Woodhouse (1674) 76 ER 84, 781 Defamation A Walker against the Dean and Chapter of York (1674) 85 ER 84, 784 Prohibition A Subchantor against the Archbishop of York (1674) 103 ER 84, 788 Prohibition A Hughs against Needham (1674) ER 11 84, 798 Mandamus A Loddington and Draper (1674) 50 ER 84, 810 Prohibition A Monday against Porton (1674) ER 83, 480-1 Prohibition D Trafford against Trafford (1674) ER 83, 482 Prohibition D Case 469 (1674) 469 ER 89, 272 Mandamus A 275

Anonymus (1675) ER 86, 183 Prohibition A Snell versus Webling (1675) ER 86, 184-5 Defamation A Snell against Webling (1675) ER 83, 493 Snell and Webberly (1675) 46 ER 84, 870 Richardson versus Disborow (1675) ER 86, 188 Prohibition A Richardson and Desborough (1675) ER 84, 889 The Bishop of Carlisle, & C against Wells (1675) ER 83, 499-500 Prohibition D Barton's Case (1675) 331 ER 89, 206 Prohibition A Case 332 (1675) 332 ER 89, 207 Prohibition D Case 332B (1675) 332B ER 89, 207 Prohibition C Case 333 (1675) 333 ER 89, 207 Prohibition D Wortesley's Case (1675) 334 ER 89, 207 Prohibition N Case 335 (1675) 335 ER 89, 208 Prohibition D King v Philpott (1675) 699 ER 89, 392 Defamation C Bastard and Stukely (1675) 30 ER 84, 822 Prohibition A Bastard and Stuckely (1675) 73 ER 84, 910 Lady Fitzwilliams and Westby (1675) 31 ER 84, 822 Prohibition A Sims and Collier (1675) 54 ER 84, 827-8 Defamation A Syms and Selwood and Collier (1675) 35 ER 84, 839 Andrews and Simons (1675) 48 ER 84, 846 Prohibition A Andrews and Symson (1675) 3 ER 84, 857 Andrews and Symson (1675) 13 ER 84, 859-60 Wheler and Lambert (1675) 28 ER 84, 863 Prohibition D Wheely and Lambert (1675) 39 ER 84, 868 Prohibition A Bowls and Langton (1675) 48 ER 84, 871 Defamation C Mansell and the Dean and Chapter of York (1675) 80 ER 84, 880-1 Prohibition A 276

Dominus Rex and Fenton (1675) 82 ER 84, 881 Nonconformity A Dominus Rex and Fenton

(1675) 12 ER 84, 859 Dominus Rex and Fenton

(1675) 31 ER 84, 864 Dominus Rex and Fenton, and C (1675) 45 ER 84, 870 Syms and Selwood (1675) 87 ER 84, 882 Prohibition A Syms and Sellwood (1675) 34 ER 84, 900 Groundal and Waldron (1675) 2 ER 84, 885 Prohibition D Vanacre against Spleen (1675) 7 ER 84, 887 Prohibition A Vanacre and Spleen (1675) 78 ER 84, 880 Dominus Rex and Roberts (1675) 14 ER 84, 889 Defamation A Low and Haywood (1675) 69 ER 84, 909 Nonconformity A Low and Hayward (1675)

38 ER 84, 901-2 Dominus Rex and Tayler (1675) 53 ER 84, 906 Defamation A Dominus Rex and Taylor (1675) 94 ER 84, 914 Taylor's Case (1675) ER 86, 189 ‘The King against Taylor’. In John Rice, ed. Pleas of the Crown in Matters Criminal and Civil: containing a Large Collection of Modern Precedents (Dublin, 1793), 226-8 Pawly and Wiseman (1675) 74 ER 84, 910 Prohibition A Pauly and Wiseman (1675) 79 ER 84, 880 - and Harrison (1675) 86 ER 84, 913 Prohibition D Carter and Pecke (1675) 88 ER 84, 913 Prohibition A Carter and Peckre (1675) 40 ER 84, 902 277

Etheridg and Etheridg (1675) 90 ER 84, 914 Prohibition N Worthy and Buxton (1675) 91 ER 84, 914 Prohibition A Bell and Thatcher (1675) 309 ER 89, 198 Defamation D Grene and Warner (1676) 5 ER 84, 916 Defamation A Earl of Shaftsbury and Lord Digby Scandalum (1676) 27 ER 84, 920 magnatum A Comes Shaftsbury and Lord Digby (1676) 49 ER 84, 927 Earl of Shaftsbury and Lord Digby (1676) 52 ER 84, 927 Earl of Shaftsbury and Lord Digby (1676) 68 ER 84, 931 Earl of Shaftesbury and Digby (1676) 18 ER 84, 938-9 The Earl of Shaftsbury against Lord Digby (1676) 72 ER 86, 963-4 Dominus Rex and Pedley (1676) 31 ER 84, 923 Nonconformity D Dr Wats and - (1676) 32 ER 84, 923 Prohibition A Dominus Rex and Philpot (1676) 48 ER 84, 927 Defamation A Syms and Collier (1676) 25 ER 84, 941 Prohibition A Smith and Tracy (1676) 33 ER 84, 943 Prohibition N Huit and Hill (1676) 36 ER 84, 964 Prohibition A Dominus Rex and Jay (1676) 57 ER 84, 969 Mandamus A Dominus Rex and Norton (1676) 58 ER 84, 969 Prohibition N Wise and Creek (1676) 12 ER 84, 976 Prohibition A Wife against Creeke (1676) ER 83, 510 Wise and Creek (1677) 47 ER 84, 1014-5 Wise and Creech (1677) 22 ER 84, 1025 Dominus Rex and Smith (1676) 15 ER 84, 977 Habeas corpus D Tomlin and Adler (1676) 17 ER 84, 977 Prohibition A 278

Smith and Tracy (1676) 20 ER 84, 978 Prohibition N Smith v Tracy (1676) 337 ER 89, 208-9 Smith versus Tracy (1676) ER 86, 198 Smith versus Tracy (1677) ER 86, 204 Smith and Tracy (1677) 13 ER 84, 1023 Thatcher and Moys (1676) 23 ER 84, 989 Defamation A Bastard and Stewkly (1676) 36 ER 84, 993-4 Prohibition N Whitehead v Founes (1676) 310 ER 89, 198 Defamation A Case 310B (1676) 310B ER 89, 198 Defamation D Mors against Thacker (1677) ER 83, 514 Defamation A Barton's Case (1677) 339 ER 89, 209 Prohibition A Case 340 (1677) 340 ER 89, 209 Prohibition D Loury against Reynes (1677) ER 83, 526-7 Prohibition A Anonymus (1677) ER 86, 198-9 Prohibition D Baker versus Baker (1677) ER 86, 202 Prohibition A Frowd and Frowd (1677) ER 86, 209 Defamation A Froud and Froud (1677) 5 ER 84, 1043 Froud and Froud (1677) 10 ER 84, 1022 Proud and Proud (1677) 28 ER 84, 1026-7 Frowde against Frowde (1677) ER 84, 1158 7 (1677) 7 ER 84, 985 Prohibition A Cock and Heathcock (1677) 10 ER 84, 986 Defamation A Dominus Rex and Thomson (1677) 29 ER 84, 1009 Defamation D Dominus Rex and Clerke (1677) 59 ER 84, 1019 Defamation D Dominus Rex and Clerk (1677) 56 ER 84, 998-9 The City of London and Clerk (1677) 27 ER 84, 1026 Dominus Rex and Hicks (1677) 63 ER 84, 1020 Defamation D 279

Brown and Farmer (1677) 2 ER 84, 1021 Prohibition A Mason and the Bishop of Hereford (1677) 31 ER 84, 1027 Prohibition A Payn and the Bishop of Bristow (1677) 36 ER 84, 1029 Prohibition D Brown and Farmor (1677) 42 ER 84, 1031 Prohibition N Mason against Robinson and Baldwin (1677) 51 ER 84, 1035 Prohibition D Banes and Lowder (1677) 68 ER 84, 1040 Prohibition A Lower and Raynes (1677) 2 ER 84, 1043 Prohibition A Dominus Rex and Cory (1677) 19 ER 84, 1051 Prohibition A Baker and Baker (1677) 25 ER 84, 1053 Prohibition A Hippesley against Tucke (1677) ER 84, 1157 Defamation D Anonymous (1678) 194 ER 86, 1095 Prohibition D Smallgood against Brickhouse (1678) 195 ER 86, 1095 Prohibition D Cory against Pepper (1678) ER 83, 528 Prohibition C Newton and his Wife against Masters (1678) ER 83, 534 Defamation A Wetherhead against Armitage (1678) ER 83, 534 Defamation D Wetherhead against Brookborne (1678) 11 ER 89, 766 Greaterchy against Beardsly (1678) ER 83, 537-8 Prohibition D Wortley and Uxor against Watkinson (1678) ER 84, 1175-6 Prohibition C Wortly against Watkinson (1679) ER 83, 544 Wortley against Watkinson (1679) 55 ER 89, 800-2 Farmer, & C against Browne (1678) ER 84, 1178 Prohibition C Farmer v Browne (1679) 348 ER 89, 214-5 Dudley v Spencer (1678) 311 ER 89, 198 Defamation N Case 347B (1678) 347B ER 89, 214 Prohibition A 280

‘The Trial of Thomas White, alias Whitebread, Provincial of the Jesuits in England, William Harcourt, pretended Rector of London, John Fenwick, Procurator for the Jesuits in England, John Gavan alias Gawen, and Anthony Turner, all Jesuits and Priests, at the Old Bailey, for High- Treason: 31 Charles II. A. D. 1679.’. In T. B. Howell, ed. A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783: Volume 7 (London: 1816), 311-418 High Treason A ‘The Trial of Sir George Wakeman, bart. William Marshal, Wiliam Rumley and, James Corker, Benedictine Monks at the Old Bailey, for High Treason: 31 Charles II. A.D. 1679.’. In T. B. Howell, ed. A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783: Volume 7 (London: 1816), 591-706 High Treason D Banfield v Lincoln (1679) 313 ER 89, 199-200 Defamation A Bonfield against Linton (1679) ER 89, 805 Browne against Averie (1679) 15 ER 89, 770 Prohibition D Scoble against Lee (1679) 24 ER 89, 775 Defamation D Goodwin against Browne (1679) 25 ER 89, 775 Defamation A Osbourne against Rey (1679) 44 ER 89, 792 Defamation D Etherington against The Archbishop of York (1679) ER 83, 542-3 Prohibition D Aungier against Brogan (1679) ER 84, 1180-1 Prohibition C Bastard against Stukely (1679) ER 84, 1181-2 Prohibition N Hill against Boomer (1679) ER 84, 1182 Prohibition A Hill against Barne (1679) ER 83, 542 Hill against Boomer (1679) 39 ER 89, 788-9 281

unnamed (1679) ER 86, 216-7 Mandamus A Anonymus (1679a) ER 86, 217 Prohibition D Anonymus (1679b) ER 86, 217 Prohibition D Anonymus (1679a) ER 86, 218 Defamation D Anonymus (1679b) ER 86, 218 Prohibition N Herne versus Browne (1679) ER 86, 219 Prohibition D Anonymus (1679) ER 86, 222 Prohibition A Harris against Roberts (1680) 91 ER 89, 817 Defamation D Girton against Gilder (1680) 95 ER 89, 819 Prohibition A Manling against Smith (1680) 110 ER 89, 840 Prohibition C Sir John Cutler against Friend (1680) 116 ER 89, 845 Defamation N Sheffield and Others against the Archbishop of Canterbury (1680) 124 ER 89, 849 Prohibition A Anonymous (1680) 134 ER 89, 855 Defamation A Anonymous (1680) ER 89, 857 Prohibition D Peacock against Leach (1680) ER 84, 1186-7 Defamation D ‘The Trial of Stephen Colledge, at Oxford, for High Treason: 33 Charles II. A. D. 1681’. In T. B. Howell, ed. A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783: Volume 8 (London: 1816), 549-746 High Treason A Cranden against Walden (1681) ER 83, 554 Prohibition C Yates against Lodge (1681) ER 83, 555 Prohibition D Sir Thomas Clarges against Row (1681) ER 83, 561-2 Defamation A Row against Clargis (1682) 251 ER 89, 922-3 Roe and Clarges (1682) 15 ER 90, 33-4 Roe and Clarges (1683) 6 ER 90, 42 Roe against Sir Thomas Clargis (1683) 5 ER 87, 15-7 Anonymous (1681) 8 ER 90, 4 Prohibition D 282

Thusfield and Jones (1681) 3 ER 90, 14 Prohibition D Thursfield against Jones (1681) ER 84, 1209 Fox and Lapthorne (1681) ER 84, 1194 Defamation D Bush against Smith (1681) ER 84, 1195 Defamation D Paul Moone’s Case (1681) ER 84, 1196 Habeas corpus D The King against Forbis (1681) 143 ER 89, 860 Nonconformity A Owen's Case (1682) 192 ER 89, 885-6 Prohibition A The King against Vaughan (1682) 194 ER 89, 886 Praemunire A The King against Vaughan

(1681) 11 ER 90, 6 The King against Stenhowe (1682) 198 ER 89, 888-9 Mandamus D Smallwood against Berthouse (1682) 209 ER 89, 892 Prohibition D The King against Spiller and His Wife (1682) 211 ER 89, 893-4 Nonconformity A The King against Spiller (1682) 212 ER 89, 894-5 Defamation A The King against The Dean of Exeter (1682) 219 ER 89, 900 Mandamus A The Duke of York against Pilkington Scandalum (1682) 238 ER 89, 918 magnatum A The Duke of York and Pilkington (1682) 16 ER 90, 34 Collet and Collet (1682) 4 ER 90, 18 Prohibition D Collet's Case (1682) ER 84, 1223 Watkinson and Murgatroy (1682) 5 ER 90, 19 Prohibition D Murgatroyd against Watkinson Chancellor to the Archbishop of York (1682) ER 84, 1211 Dr Owen and Dr Stainoe (1682) 17 ER 90, 22 Mandamus D Stawel against Caune (1682) ER 83, 571-2 Defamation A Sir Jo Knightly against Marrow (1682) ER 83, 581 Defamation A Bonsey against Lee (1682) ER 83, 583 Prohibition A 283

Earl of Shaftesbury against Cradocke Scandalum (1682) ER 84, 1212 magnatum C The Earl of Shaftsbury versus Cradock (1682) ER 86, 234 The Earl of Shaftsbury versus Graham, & Al (1682) ER 86, 234-5 Lord Shaftesbury and Craddock (1682) 9 ER 90, 20 Boulsworth against Pilkington (1682) ER 84, 1216 Defamation A - against the Chancellor of Litchfield (1682) ER 84, 1221 Prohibition D Nailer against Clarke (1682) ER 84, 1222 Defamation A Jackson against Hall (1683) 273 ER 89, 943 Defamation D Grey against Munford (1683) 284 ER 89, 948 Prohibition D Garret against Shelson (1683) 286 ER 89, 948 Defamation A The King against Hurst (1683) 291 ER 89, 950 Nonconformity A The King and Hurst (1683) 14 ER 90, 47 Coplestone against Coplestone (1683) 306 ER 89, 956 Mandamus A Neal and his Wife against Mallard (1683) 321 ER 89, 960 Defamation A Anonymus (1683) 4 ER 90, 41 Prohibition D Marriot and Knightly (1683) 13 ER 90, 46-7 Defamation N Knightley against Marrow (1683) 304 ER 89, 954-5 Anonymus (1683) 18 ER 90, 48 Prohibition A Dr Sand's Case (1683) 18 ER 90, 57 Prohibition D The East India Company and Sandys (1683) 7 ER 90, 62-4 Trade N Anonymus (1683) 3 ER 90, 80 Prohibition D Thursfield versus Jones (1683) ER 86, 236 Prohibition N The King and Barnes (1684) 6 ER 90, 81-2 Nonconformity A The King against Barnes, and Others (1684) 15 ER 87, 26-7 284

Powle against Trumball (1684) 381 ER 89, 1018 Prohibition D The Earl of Macklefield's Case (1684) Scandalum 13 ER 87, 25-6 magnatum C Gardner against Helvis (1685) ER 83, 673 Defamation D Newton against Stubbs (1685) 391 ER 89, 1026-7 Defamation D Sir John Newton and Others against Stubbs (1685) 34 ER 87, 45-6 James against Trollop (1685) 395 ER 89, 1028-9 Prohibition A Dawling against Wenman (1685) 401 ER 89, 1033 Defamation D Mason against Smith (1685) 404 ER 89, 1033 Prohibition N Venners against Allen (1685) 409 ER 89, 1037 Prohibition A Roberts against Pain (1685) 27 ER 87, 42 Prohibition D The King against Dangerfield (1685) 29 ER 87, 43-4 Defamation A Mr Baxter's Case (1685) 30 ER 87, 44 Defamation A Anonymous (1685) 38 ER 87, 48 Prohibition A The King against Sparks (1685) 41 ER 87, 50-1 Nonconformity D The King against Sparks (1685) 407 ER 89, 1034-6 Rex versus Freake (1685) ER 90, 314 Defamation D Palmer and Allicot (1686) ER 90, 314- 6 Prohibition C Tuckey and Flower (1686) ER 90, 323 Defamation D Tuckey versus Flower (1686) ER 90, 321 Tuckey against Flowers (1686) 436 ER 89, 1054-5 Godden against Hales (1686) 432 ER Dispensing 89, 1050-1 power D Godwin versus Hales (1686) ER 90, 318-21 Warwick against Skinner and Another (1686) 445 ER 89, 1057-8 Prohibition D Lord Peterborough against Williams Scandalum (1686) 459 ER 89, 1068 magnatum N The Earl of Peterborough versus Williams (1686) ER 90, 332-3 285

Peak against Meker (1686) 63 ER 87, 65 Defamation A Dawling against Venman (1686) 69 ER 87, 69 Defamation N Dobson against Thornistone (1686) 72 ER 87, 71 Defamation A Baldwin against Flower (1686) 80 ER 87, 77 Defamation A The King against Darby (1687) 94 ER 87, 89-90 Defamation A Rex versus Darby (1687) ER 90, 346-7 The King versus Darby (1687) ER 90, 614 Ecclesiastical Court (1687) ER 90, 334 Prohibition D unnamed (1687) ER 90, 335 Defamation A Peat & Ux versus Parry (1687) ER 90, 338 Defamation A Rouse and Wilcocks (1687) ER 90, 350 Defamation A Prowse against Wilcox (1687) 107 ER 87, 105-6 Boyle and Boyle (1687) ER 90, 350-1 Prohibition A Boyle against Boyle (1687) 108 ER 87, 106-7 Chapman and Lamphere (1687) ER 90, 352 Defamation A Chapman against Lamphire (1687) 102 ER 87, 100-1 The Rector of Westbury's Case (1687) ER 90, 353 Prohibition D Woodward's Case (1688) 127 ER 87, 136 Prohibition A The Case of the Seven Bishops (1688) 128 ER 87, 136-8 Seditious libel D Born versus Jackson (1688) ER 90 363-4 Prohibition A ‘Proceedings against Thomas Williams for Publishing Paine’s “Age of Reason”; Tried by a Special Jury in the Court of King’s Bench at Westminster, before the Right Honourable Lloyd Lord Kenyon on the 24th Day of June: 37 George III A. D. 1797.’. In T. B. Howell, ed. A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Blasphemy A 286

Misdemeanors from the Earliest Period to the Year 1783, with Notes and Other Illustrations: Volume 26 (London: 1819), 653-722 The King against Richard Carlile (1819) ER 106, 621 Blasphemy A R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury Blasphemous (1991) 1 All ER 306 libel D

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