Common Law Judicial Office, Sovereignty, and the Church Of

1 Common Law Judicial Office, Sovereignty, and the Church of England in Restoration 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 2 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 3 Authorship Attribution Statement This thesis contains material published in David Kearns, ‘Sovereignty and Common Law 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 4 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. 5 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 6 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 Church of England the most common. In response, members of the Restoration judiciary not only rhetorically defended their office as independent, 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. 7 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’. Thomas Hobbes, 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 Assizes in St. Maries Church in Leicester2 ‘The Laws 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’. Matthew Hale, 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 execution of Charles I. 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 House of Lords, 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 (Oxford: Oxford University Press, 2012 [1651]), 422. 2 Robert Harrison, Two Sermons Lately Preached at the Assizes in St. Maries Church in Leicester (London: 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

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