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Sovereignty and Common Law Judicial Office in Taylor's Case (1675)

  • David Kearns

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He thanks Conal Condren, Andrew Fitzmaurice, Ian Hunter, Ryan Walter, Alisa Draskovic, Charlotte Johann, Graham Kearns, and Victoria Bliss, as well as Editor Gautham Rao and the anonymous referees of Law and History Review for their insightful comments on earlier drafts of this work.

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1. Although some accounts list the date for Taylor's Case as 1676 (Visconsi, Elliot, “The Invention of Criminal Blasphemy: Rex v Taylor (1676),” Representations 103:1 (2008): 3052), I date it at 1675 as this is the date used in the most substantive and specifically dated report of Taylor's Case (The King against Taylor,” in Pleas of the Crown in Matters Criminal and Civil: containing a Large Collection of Modern Precedents, ed. Rice, John [Dublin: H. Watts, 1793], 226–28, at 227).

2. Taylor's Case (1675) ER 86, 189. The anonymously authored 1678 pamphlet A Full and True Account of the Notorious Wicked Life of that Grand Impostor John Taylor suggested that Taylor's outburst was an attempt to revive his career as a preacher in the wake of Charles II's “merciful Indulgence” (Anonymous, A Full and True Account of the Notorious Wicked Life of that Grand Impostor John Taylor [London: Benjamin Harris, 1678], 3), the Royal Declaration of Indulgence that suspended “all penal laws against Nonconformists and recusants” (Charles II: March 1672,” in Calendar of State Papers Domestic: Charles II, 1671–2, ed. Daniell, Francis H. Blackburne [London: 1897], 173263). Such a connection seems unlikely, though, because the Declaration was issued on March 15, 1672, and withdrawn on March 8, 1673 (House of Lords Journal Volume 12: 8 March 1673,” in Journal of the House of Lords: Volume 12, 1666–1675 [London: 1767–1830], 548–50). It had not been in force for more than 2 years when Taylor committed his offense.

3. “House of Lords Journal Volume 12: 11 May 1675,” in Journal of the House of Lords: Volume 12, 687–88.

4. For the House of Lords debates over which jurisdiction Taylor ought to be tried in, see: “House of Lords Journal Volume 12: 11 May 1675,” in Journal of the House of Lords: Volume 12, 687–88; “House of Lords Journal Volume 12: 14 May 1675,” in Journal of the House of Lords: Volume 12, 690–92; “House of Lords Journal Volume 12: 20 May 1675,” in Journal of the House of Lords: Volume 12, 669–701; House of Lords Journal Volume 13: 11 November 1675,” in Journal of the House of Lords: Volume 13, 1675–1681 (London: 1767–1830), 18–9; and “House of Lords Journal Volume 13: 17 November 1675,” in Journal of the House of Lords: Volume 13, 25–7. Although Taylor's offense allegedly occurred on April 26, 1675, he was tried at the earliest in November of that year, as the Lords did not make a determination regarding where he would face trial until November 11, 1675. The delay was the result of Charles II's prorogation of Parliament from June 9 to October 13, 1675 (“House of Lords Journal Volume 12: 9 June 1675,” in Journal of the House of Lords: Volume 12, 728–9; and “House of Lords Journal Volume 13: 13 October 1675,” in Journal of the House of Lords: Volume 13, 3–6).

5. Taylor's Case (1675).

6. “The King against Taylor.” Taylor's Case (1675) recorded that he was to stand in the pillory in three unnamed locations, whereas “The King against Taylor,” recorded that Taylor was ordered to stand in the courtyard of Westminster Palace and the market place of Guildford during market time, and Dominus Rex and Taylor (1675) ER 84, 914 recorded that Taylor was to stand in the pillory at Guildford, Westminster, Cheapside, and Exchange. All accounts agree that he was to stand in the pillory for an hour at each location.

7. “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 A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, with Notes and Other Illustrations: Volume 26, ed. Howell, Thomas B. (London: Longman, 1819), 653722.

8. The King against Richard Carlile (1819) ER 106, 621.

9. R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury (1991) 1 All ER 306.

10. Baroness Detta O’Cathain, HL Deb 8 Nov 2005, col 532. The offense was eventually abolished in 2008 (Criminal Justice and Immigration Act 2008 s 79).

11. Mill, John Stuart, “ART. I.Westminster Review 2 (1824): 127, at 9.

12. Although not discussed here, scholars outside the field of history have tended to approach Taylor's Case with anachronistic terms such as “discrimination” (McNamara, Lawrence, “Blasphemy,” in Law and Religion: God, the State and the Common Law, ed. Radan, Peter, Meyerson, Denise, and Croucher, Rosalind F. [London: Routledge, 2005], 201), “secularization” (Visconsi, “The Invention of Criminal Blasphemy,” 47), and “freedom of expression” (Levy, Leonard W., Treason against God: A History of the Offense of Blasphemy [New York: Schocken Books, 1981], xii). On the history of the term “secular” and the anachronism entailed in applying it to the seventeenth century, see Hunter, Ian, “Secularization: The Birth of a Modern Combat Concept,” Modern Intellectual History 12:1 (2015): 132.

13. Clark, Jonathan C. D., English Society 1660–1832: Religion, Ideology and Politics during the Ancien Regime (Cambridge: Cambridge University Press, 2000), 26.

14. Ibid., 492. For Clark's treatment of Taylor's Case (1675) in the first edition of English Society, see Clark, Jonathan C. D., English Society 1688–1832: Ideology, Social Structure and Political Practice during the Ancien Regime (Cambridge: Cambridge University Press, 1985), 380.

15. Hunter, Ian, “English Blasphemy,” Humanity: An International Journal of Human Rights, Humanitarianism, and Development 4:3 (2013): 403–28, at 412.

16. Rose, Jacqueline, “John Locke, ‘Matters Indifferent,’ and the Restoration of the Church of England,” The Historical Journal 48:3 (2005): 601–21, at 601.

17. Rose, Jacqueline, “Royal Ecclesiastical Supremacy and the Restoration Church,” Historical Research 80:209 (2007): 324–45, at 325–27.

18. Skinner, Quentin, Foundations of Modern Political Thought, Volume 2: The Age of Reformation (Cambridge: Cambridge University Press, 1978), 349, 351.

19. Weston, Corinne and Greenberg, Janelle, Subjects and Sovereigns: The Grand Controversy over Legal Sovereignty in Stuart England (Cambridge: Cambridge University Press, 1981), Preface, 3, 4, 7.

20. Pocock, John G. A., The Ancient Constitution and the Feudal Law: English Historical Thought in the Seventeenth Century (Cambridge: Cambridge University Press, 1957), 180. Quentin Skinner similarly reified Hale's position into that of historiographic polemicist, claiming that Hale's denial of a conquest in 1066 showed him to be an acolyte of “whig historiography” (Skinner, Quentin, “History and Ideology in the English Revolution,” in Visions of Politics, Volume 3: Hobbes and Civil Science [Cambridge: Cambridge University Press, 2001], 239, 254). Other historians have produced exceptional reflections on common lawyers, but like Pocock, have not treated the common law as their principal focus: David Saunders arrogated discussion of the common law to an investigation of secularization throughout early modern European legal systems (Saunders, David, Anti-Lawyers: Religion and the Critics of Law and State [London: Routledge, 1997]); Alan Cromartie sidelined Hale's legal work for a study of his religious and scientific writings, using his work as a judge and his legal writings principally to illustrate Hale's “politics” (Cromartie, Alan, Sir Matthew Hale, 1609–1676: Law, Religion, and Natural Philosophy [Cambridge: Cambridge University Press, 1995], 7). Saunders attempted to address what he later saw to be an undue emphasis on secularization in Anti-Lawyers, but did so by subduing the common law to the life histories of individual lawyers and statute law (Saunders, David, “The Biographical Turn: Lord Nottingham, His Case,” Law in Context 33:1 [2015]: 86106).

21. Pocock, The Ancient Constitution and the Feudal Law, 26.

22. Pocock's claim has been echoed by Glenn Burgess, who has noted the early modern contest over the meaning of “sovereignty”: Burgess, Glenn, Absolute Monarchy and the Stuart Constitution (New Haven, CT: Yale University Press, 1996), ch. 3. Andrew Fitzmaurice has gone further to suggest that not only was the meaning of sovereignty in dispute, but that this also meant that early modern states were “fragmented” rather than stable, constitutionally fixed entities: Fitzmaurice, Andrew, “Context in the History of International Law,” Journal of the History of International Law 20:1 (2018): 530, at 18–9. Fitzmaurice has further revealed that an assumption of sovereignty as stable is not only a flaw of much historical scholarship, but also characterizes anthropological accounts of early modernity, too: Fitzmaurice, Andrew, “Powhatan Legal Claims,” in Native Claims: Indigenous Law against Empire, 1500–1920, ed. Belmessous, Saliha (Oxford: Oxford University Press, 2011), 85102, at 92 (Fitzmaurice is here critiquing, in particular, Rice, John, “Escape from Tsenacommacah: Chesapeake Algonkians and the Chesapeake Menace,” in The Atlantic World and Virginia, 1550–1624, ed. Mancall, Peter C. [Chapel Hill: University of North Carolina Press, 2007], 97140). Conal Condren takes us closest to the subject of the present essay, because he notes that the common lawyers were not so much enemies of a “doctrine” of sovereignty, but rather posed a challenge to the “office of the sovereign”: Condren, Conal, “Natura naturans: Natural Law and the Sovereign in the Writings of Thomas Hobbes,” in Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought, ed. Hunter, Ian and Saunders, David (Basingstoke: Palgrave Macmillan, 2002), 6175, at 63. In making these claims, Pocock, Burgess, Fitzmaurice, and Condren break with a trend common among early modern intellectual historians to simply invoke sovereignty with the assumption that its meaning was stable and uncontested: Sommerville, Johann P., “English and European Political Ideas in the Early Seventeenth Century: Revisionism and the Case of Absolutism,” Revisionisms 35:2 (1996): 168–94; Braddick, Michael J., 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; Benton, Lauren, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2009), ch. 6; Benton, Lauren and Straumann, Benjamin, “Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice,” Law and History Review 28:1 (2010): 138; Brett, Annabel, Changes of State: Nature and the Limits of the City in Early Modern Natural Law (Princeton, NJ: Princeton University Press, 2011), 5, 212; Goldie, Mark, “Absolutism,” in The Oxford Handbook of the History of Political Philosophy, ed. Klosko, George (Oxford: Oxford University Press, 2011), 282–93; Armitage, David, Foundations of Modern International Thought (Cambridge: Cambridge University Press, 2012), 27, 59; Tuck, Richard, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge: Cambridge University Press, 2016); Cavanaugh, Edward, “Prescription and Empire from Justinian to Grotius,” The Historical Journal 60:2 (2017): 273–99. My article sustains Fitzmaurice's claim in arguing that the dispute over sovereignty's meaning was carried into the law courts, where Hale's judgment in Taylor's Case rejected a model of hierarchical lawmaking, and supports Condren's contention that this rejection played out through official relationships.

23. Matthew Hale, “Reflections by the Lrd. Chiefe Justice Hale on Mr. Hobbes His Dialogue of the Lawe,” in Holdsworth, William S., “Sir Matthew Hale on Hobbes: An Unpublished MS.Law Quarterly Review 37 (1921): 274303, at 294.

24. Condren, Conal, Argument and Authority in Early Modern England: The Presupposition of Oaths and Offices (Cambridge: Cambridge University Press, 2006), 2.

25. Initial entries in the study of early modern English office concentrated on formal office-holding, and the republican implications of this (Withington, Phil, The Politics of Commonwealth: Citizens and Freemen in Early Modern England [Cambridge: Cambridge University Press, 2005]; and Goldie, Mark, “The Unacknowledged Republic: Officeholding in Early Modern England,” in The Politics of the Excluded, c. 1500–1850, ed. Harris, Tim [Basingstoke: Palgrave, 2001], 154–94), although scholars have increasingly turned to the ubiquity of office talk beyond the formal: Condren, Argument and Authority in Early Modern England; and the essays, particularly those by Stephen Gaukroger and Condren, collected in The Philosopher in Early Modern Europe: the Nature of a Contested Identity, ed. Condren, Conal, Gaukroger, Stephen, and Hunter, Ian (Cambridge: Cambridge University Press, 2009). Ian Hunter has explored the language of office on the European continent (Hunter, Ian, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany [Cambridge: Cambridge University Press, 2001]; Hunter, Ian, The Secularisation of the Confessional State: the Political Thought of Christian Thomasius [Cambridge: Cambridge University Press, 2009]; and Ian Hunter, “The University Philosopher in Early Modern Germany,” in The Philosopher in Early Modern Europe, 35–65). Some attention has been given to judicial office, but these authors have only made passing reference to judicial practice: David Saunders, “The Judicial Persona in Historical Context: the Case of Matthew Hale,” in The Philosopher in Early Modern Europe, 140–59; and Jansson, Maija, “Matthew Hale on Judges and Judging,” Journal of Legal History 9:2 (1988): 201–13.

26. See Condren, Conal, “Reason of State and Sovereignty in Early Modern England: A Question of Ideology?Parergon 28:2 (2011): 527, at 26.

27. See, for example: King James VI of Scotland's claim, made prior to his becoming James I of England, that laws “are made by [the king], or his predecessors. And so the power flowes alwaies from himselfe” (VI, James, The True Law of Free Monarchies [Edinburgh: Walter Waldegrave, 1598], 17); and Francis Bacon's claims that “[i]udges ought to remember, that their Office is… To Interpret Law, and not to Make Law,” and that “they doe not checke, or oppose any Points of Soveraigntie” (Bacon, Francis, “Of Iudicature,” in The Essayes or Counsels, Civill or Morall [London: Hanna Barret, 1625], 316, 324); his description of Elizabeth I as the “anima legis” (the soul of the law), without whom the laws are “silent,” nothing more than “litera mortua” (dead letters); and his description of Edward the Confessor as the “principall Law-giver of our nation” (Bacon, Francis, The Elements of the Common Lawes of England [London: J. More, 1636], Dedication).

28. Alan Cromartie has termed “constitutionalism” these declarations that the arts of common law reasoning were impenetrable to those untrained in them, but provided those with such specialist training a capacity to adjudicate on any subject, including the monarch's power. According to Cromartie, these claims grew out of arguments stretching back to the fifteenth century, which were popularized in the seventeenth century, and are crucial in explaining the causes of the Civil Wars (Cromartie, Alan, The Constitutionalist Revolution: An Essay on the History of England, 1450–1642 [Cambridge: Cambridge University Press, 2006], ch. 1).

29. Among other things, Hobbes asserted that “him that hath the Soveraign Power” was “our King,” who “is to us the Legislator both of Statute-Law, and of Common-Law” (Thomas Hobbes, “A Dialogue between a Philosopher and a Student, of the Common Laws of England” [hereafter Dialogue], in The Clarendon Edition of the Works of Thomas Hobbes, Volume 11: A Dialogue Between a Philosopher and a Student, of the Common Laws of England; Questions Relative to Hereditary Right, ed. Cromartie, Alan and Skinner, Quentin [Oxford: Oxford University Press, 2005], 1146, at 26). In short, the common law was entirely a domain of sovereign will.

30. Hale, Matthew, The Prerogatives of the King (London: Selden Society, 1976).

31. David E. C. Yale, “Introduction,” in Hale, The Prerogatives of the King, ix–lxxviii, at xxiv–xxv.

32. Coke, Edward, A Booke of Entries (London: Societie of Stationers, 1614), Preface.

33. Hale, “Reflections by the Lrd. Chiefe Justice Hale on Mr. Hobbes His Dialogue of the Lawe,” 292.

34. Ibid., 289.

35. Matthew Hale, MS 3479, Lambeth Palace Library, 3.

36. Ibid., 5.

37. Given that these texts by Hale were not published in his lifetime, when they remained only in manuscript form, precise dating is difficult. Hale's “Reflections” was certainly a piece of Restoration work, though, because it responded to Hobbes's Dialogue, itself written in the 1660s at the earliest. Hale's History of the Common Law in England was also certainly written at least in part in the Restoration, because Hale referred to the restoration of the monarchy when claiming that the common law had “wasted and wrought out” the “Errors, Distempers or Iniquities” of the Civil Wars (Hale, Matthew, History of the Common Law in England [Chicago: University of Chicago Press, 1971, originally published in 1739], 30).

38. Ibid., 3–4, 18, 44–45.

39. A claim that Hale refuted in the Harleian draft of the “Reflections” (Hale, “Reflections by the Lrd. Chiefe Justice Hale,” 289).

40. A claim that Hale refuted in the Lambeth Palace Library draft of the “Reflections” (Hale, MS 3479, 5).

41. A claim that Hale countered in “Considerations Touching The Amendment or Alteration of Lawes by Lord Chief-Justice Hale” (Hale, Matthew, “Considerations Touching The Amendment or Alteration of Lawes by Lord Chief-Justice Hale,” in A Collection of Tracts Relative to the Law of England, from Manuscripts, Volume 1, ed. Hargraves, Francis [Dublin: Lynch, 1787], 249–90, at 258–59). Hale would have had direct exposure to advocates of Biblical exegesis as the basis for the common law because he chaired the Hale Commission during the Interregnum, where he worked alongside Hugh Peters, an advocate for the idea that common lawyers should rely on the Ten Commandments, “Moses's judicials” and “Solomon's Rules,” rather than precedent (Peters, Hugh, Good Work for a Good Magistrate [London: William Du-Gard, 1651], 32). As Hale's “Considerations” lacks references to historical events in Hale's lifetime, it is harder to date than his “Reflections” or History of the Common Law in England, although it may have also been written during the Restoration, because it sustained claims central to these other works, like the claim in the “Considerations” that “time and long experience,” that is, the history of former judgments, supplied a better basis for judgments than exercising even the “wisest and acutest wits” (Hale, “Considerations Touching The Amendment or Alteration of Lawes,” 254). For accounts of the Hale Commission, see: Smith, Goldwin, “The Reform of the Laws of England, 1640–1660,” University of Toronto Quarterly 10 (1941): 469–81; and Cotterell, Mary, “Interregnum Law Reform: The Hale Commission of 1652,” The English Historical Review 83 (1968): 689704.

42. Hale, “Reflections by the Lrd. Chiefe Justice Hale,” 289.

43. Coke, A Booke of Entries, Preface.

44. German, Christopher St, The Dialogue in English, Betweene a Doctor of Divinitie, and a Student in the Lawes of England (London: Company of Stationers, 1607), 22.

45. Hale's list was similar, although crucially not identical, to Bodin's marks of sovereignty. On Bodin's marks of sovereignty, see Skinner, The Foundations of Modern Political Thought, Volume 2, 288

46. Hale, “Reflections by the Lrd. Chiefe Justice Hale,” 295.

47. Ibid., 296.

48. Ibid., 296–7.

49. Ibid., 296.

50. Ibid.

51. The first attempt to legislate on heresy by Richard II in 1382 makes no reference to any pre-1382 statute law against heresy, nor did any of the succeeding statutes against heresy. Records of English heresy cases date back to at least the twelfth century, and although there is disagreement over when it occurred, the first execution for heresy in England seems to have taken place in the thirteenth century. Frederic W. Maitland and Alan Cromartie have both claimed that the first execution was in 1222, when a deacon who had converted to Judaism to marry a Jewish woman was convicted of heresy and sentenced to be burned to death by an Oxford ecclesiastical court (Maitland, Frederic W., Roman Canon Law in the Church of England: Six Essays [London: Methuen & Co., 1898], ch. 6; and Alan Cromartie, “General Introduction,” in The Clarendon Edition of the Works of Thomas Hobbes, Volume 11, xiv–lxv, at xlvi). John Coffey, though, has claimed that multiple convicted heretics were executed in 1210 (Coffey, John, Persecution and Toleration in Protestant England, 1558–1689 [Edinburgh: Pearson Education Limited, 2000], 78).

52. Writing in the sixteenth century, John Foxe claimed that the House of Commons refused to pass the statute (Foxe, John, The Acts and Monuments of John Foxe: Volume 3 [London: R. B. Seeley and W. Burnside, 1838], 37–9). The Statutes at Large similarly recorded that it was “not a statute” for this reason (Richard II, 1382: Sheriffs commissioned to apprehend preachers of heresy, and their abettors. The enormities ensuing the preaching of heresies,” in The Statutes at Large: Volume 2, ed. Pickering, Danby [Cambridge: Cambridge University Press, 1762], 251).

53. Charles I, 1640: An Act for repeal of a branch of a Statute primo Elizabethe concerning Commissioners for causes Ecclesiastical,” in Statutes of the Realm: Volume 5, 1628–80, ed. Raithby, John (London: Great Britain Record Commission, 1819), 112–13.

54. October 1646: An Ordinance for the abolishing of Archbishops and Bishops within the Kingdom of England, and Dominion of Wales, and for settling of their Lands and Possessions upon Trustees, for the use of the Commonwealth,” in Acts and Ordinances of the Interregnum, 1642–60, ed. Firth, Charles H. and Rait, Robert S. (London: His Majesty's Stationary Office, 1911), 879–83.

55. Hale, Matthew, Pleas of the Crown (London: Brown, 1716), 35.

56. The attempt here is to provide a schematic look at Hale's available linguistic options, not to provide a detailed or rigorous history of medieval and early modern heresy law. For broad chronological overviews of this history, see: Forrest, Ian, The Detection of Heresy in Late Medieval England (Oxford: Oxford University Press, 2005); Haefali, Evan, “Words and Power in Stuart England,” Huntington Library Quarterly 69:3 (2006): 469–76; Flannery, Mary Catherine and Walter, Katie L., eds., The Culture of Inquisition in Medieval England (Cambridge: Boydell and Brewer, 2013); Cavill, Paul, “Heresy, Law and the State: Forfeiture in Late Medieval and Early Modern England,” English Historical Review 129 (2014): 270–95; and Coffey, Persecution and Toleration in Protestant England. For more specific historical accounts of particular cases or reigns, see: Marshal, Peter, “Papist as Heretic: The Burning of John Forest, 1538,” The Historical Journal 41:2 (1998): 351–74; d'Alton, Craig, “William Warham and English Heresy Policy after the Fall of Wolsey,” Historical Research 77:197 (2004): 337–57; Atherton, Ian and Como, David, “The Burning of Edward Wightman: Puritanism, Prelacy and the Politics of Heresy in Early Modern England,” English Historical Review 120:489 (2005): 1215–50; Durston, Christopher, “James I and Protestant Heresy,” in James VI and I: Ideas, Authority and Government, ed. Houlbrooke, Ralph (Aldershot: Ashgate, 2006), 123–34; Dillon, Anne, “John Forest and Derfel Gadarn: A Double Execution,” Recusant History 28:1 (2006–7): 121; Hickerson, Megan, “Negotiating Heresy in Tudor England: Anne Askew and the Bishop of London,” Journal of British Studies 46:4 (2007): 774–95; and Cavill, Paul, “Heresy and Forfeiture in Marian England,” The Historical Journal 56:4 (2013): 879907.

57. “Richard II, 1382: Sheriffs commissioned to apprehend preachers of heresy, and their abettors. The enormities ensuing the preaching of heresies,” in The Statutes at Large: Volume 2, 251–52.

58. “Henry IV, 1400: The orthodoxy of the faith of the Church of England asserted, and provision made against the oppugners of the same; with the punishment of Hereticks,” in The Statutes at Large: Volume 2, 415.

59. Henry V's statute declared that heretics threatened to “subvert the christian faith, and the law of God… and also to destroy the same our sovereign lord the King” (Henry V, 1414: The intent of the hereticks called Lollards. Magistrates shall assist the ordinaries in extirpating heresies and punishing hereticks. Penalty on hereticks convict,” in The Statutes at Large: Volume 3, ed. Pickering, Danby [Cambridge: Cambridge University Press, 1762], 22–5).

60. Henry VIII confirmed Richard II's attempted statute and Henry V's statute, repealing Henry IV's, which resulted in a minor change to the manner by which executions were carried out (Henry VIII, 1533: A repeal of the statute of 2 H. 4. c. 15. and a confirmation of the statutes of 5 R. 2. St. 2. c. 5. & 2 H. 5. St. 1. c. 7. touching the punishment of hereticks,” in The Statutes at Large: Volume 4, ed. Pickering, Danby [Cambridge: Cambridge University Press, 1763], 278–79).

61. Mary I confirmed the earlier statutes of Henry IV and Henry V (Philip and Mary, 1554: Cap. VI,” in The Statutes at Large: Volume 6, ed. Pickering, Danby [Cambridge: Cambridge University Press, 1763], 32).

62. “Elizabeth I, 1558: An act to restore to the crown the ancient jurisdiction over the estate ecclesiastical and spiritual, and abolishing all foreign powers repugnant to the same,” in The Statutes at Large: Volume 6, 115.

63. “May 1648: An Ordinance for the punishing of Blasphemies and Heresies, with the several penalties therein expressed,” in Acts and Ordinances of the Interregnum, 1133–36.

64. “August 1650: An Act against several Atheistical, Blasphemous and Execrable Opinions, derogatory to the honor of God, and destructive to humane Society,” in Acts and Ordinances of the Interregnum, 409–12.

65. Proceedings in the House of Commons against James Nayler, for Blasphemy, and other Misdemeanors: 8 Charles II. A. D. 1656,” in 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, ed. Cobbett, William (London: Longman, 1810), 801–28, at 801.

66. “Proceedings in the House of Commons against James Nayler, for Blasphemy, and other Misdemeanors: 8 Charles II. A. D. 1656,” 821–22.

67. “Charles II, 1660: An Act for the Confirming and Restoreing of Ministers,” Statutes of the Realm: Volume 5, 242–46; 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, intituled, An act for repeal of a branch of a statute primo Elizabethae, concerning commissioners for causes ecclesiastical,” in The Statutes at Large: Volume 8, ed. Pickering, Danby (Cambridge: Cambridge University Press, 1763), 21.

68. “Charles II, 1661: An Act for the well Governing and Regulating of Corporations,” in Statutes of the Realm: Volume 5, 321–3; “Charles II, 1662: An Act for preventing the Mischeifs and Dangers that may arise by certaine Persons called Quakers and others refusing the take lawfull Oaths,” in Statutes of the Realm: Volume 5, 350–1; “Charles II, 1664: An Act to prevent and suppresse seditious Conventicles,” in Statutes of the Realm: Volume 5, 516–20; “Charles II, 1665: An Act for restraining Non-Conformists from inhabiting in Corporations,” in Statutes of the Realm: Volume 5, 575; “Charles II, 1670: An Act to prevent and suppresse Seditious Conventicles,” in Statutes of the Realm: Volume 5, 648–51; and “Charles II, 1672: An Act for preventing Dangers which may happen from Popish Recusants,” in Statutes of the Realm: Volume 5, 782–85.

69. “Charles II, 1662: An Act for the Uniformity of Publique Prayers and Administracion of Sacraments & other Rites & Ceremonies and for establishing the Form of making ordaining and consecrating Bishops Preists and Deacons in the Church of England,” in Statutes of the Realm: Volume 5, 364–70

70. Nayler's trial was held during the Interregnum; therefore, during a period in which ecclesiastical courts were not operating (Historical Collections: Abstract of Acts in the Long Parliament,” in Historical Collections of Private Passages of State: Volume 3, 1639–40 [London: John Rushworth, 1721], 1381–88).

71. The Cases of Bartholomew Legatt and Edward Wightman, for Heresy: 10 Jac. I. A.D. 1612.,” in A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, with Notes and Other Illustrations: Volume 2, ed. Howell, Thomas B. (London: Longman, 1783), 727–38, at 734.

72. Ibid., 736.

73. Ibid., 734.

74. William Slater, Doctor of Divinity,” in Reports of Cases in the Courts of Star Chamber and High Commission, ed. Gardiner, Samuel Rawson (London: Camden Society, 1886), 186–88, at 186.

75. “The Cases of Bartholomew Legatt and Edward Wightman, for Heresy,” 734.

76. Ibid., 736.

77. “The Case against Samuel Pretty, clark,” in Reports of Cases in the Courts of Star Chamber and High Commission, 181–86, at 182–83.

78. Incompleteness is an unfortunate feature of much of Hale's notes: both his “Reflections” and History of the Common Law in England were left unfinished upon his death.

79. Matthew Hale, MS 3478, Lambeth Palace Library, 36.

80. Taylor's Case (1675).

81. “The King against Taylor,” 226–28.

82. Dominus Rex and Tayler (1675) ER 84, 906. No reference appears in Keble's other report, Dominus Rex and Taylor (1675).

83. Taylor's Case (1675).

84. Dominus Rex and Tayler (1675).

85. “The King against Taylor,” 226.

86. See, for example: Sommerville, C. John, The Secularization of Early Modern England: From Religious Culture to Religious Faith (New York: Oxford University Press, 1992), 127; Visconsi, “The Invention of Criminal Blasphemy”; Hunter, “English Blasphemy”; and Stephen, James Fitzjames, A History of the Criminal Law of England: Volume 2 (London: Macmillan and Co., 1883), 470. William Holdsworth described Taylor's Case as a trial for “blasphemous libel,” a phrase that appears in no reports of the case: Holdsworth, William S., A History of English Law: Volume 8 (London: Methuen & Co. Ltd, 1925), 407–8.

87. Dominus Rex and Taylor (1675); and “The King against Taylor,” 227.

88. On the ecclesiastical offence of defamation, see Helmholz, Richard H., “Canonical Defamation in Medieval England,” The American Journal of Legal History 15:4 (1971): 255–68.

89. Todd versus Hastings (1671) ER 85, 1103–7; Lake against King (1671) ER 84, 506; Phillips versus Kingston (1671) ER 86, 79; Reeve against Holgate (1672) ER 83, 450; Wood versus Coat (1672) ER 86, 132; Watts versus Rymes (1672) ER 86, 143; Earl Thanet and Graham (1672) ER 84, 582; Ravenhill and Mole (1673) ER 84, 638; Goulding and Herring (1673) ER 84, 641; Collins against Matthews (1673) ER 84, 699; Southam versus Allen, for Words (1673) ER 83, 121; Anonymus (1674a) ER 86, 173; Crawfoot versus Dale (1674) ER 86, 176; Royston and Ivory (1674) ER 84, 733–34; Bishop of Chester and Jones (1674) ER 84, 740; Jennings and Hunkin (1674) ER 84, 760; Musgrave and Woodhouse (1674) ER 84, 781; Snell versus Webling (1675) ER 86, 184–85; King v Philpott (1675) ER 89, 391; Sims and Collier (1675) ER 84, 827–28; Bowls and Langton (1675) ER 84, 871; Dominus Rex and Roberts (1675) ER 84, 889; Bell and Thatcher (1675) ER 89, 198; and Taylor's Case (1675).

90. King v Edward Lake (1671) 14 ER 89, 12–13.

91. Ibid. The conflict between Lake and King went beyond this one case. In 1666, King brought a suit against Lake claiming extortion and illegal conduct, resulting in a pamphlet exchange between the two men. For the other cases involving the two, see: Lake against King (1668a) 6 ER 84, 226; Lake against King (1668b) 44 ER 84, 290–91, (1669) 53 ER 84, 312, (1670a) 15 ER 84, 415, (1670b) 23 ER 84, 417–18; and Lake against King (1671). For the pamphlet exchange, see: King, Edward, To the Honourable the Committee of Parliament for Grievances (London: 1666); and Lake, Edward, The Answer of Sir Edward Lake Baronet (London: 1665).

92. Phillips versus Kingston (1671).

93. Crawfoot versus Dale (1674).

94. On the history of scandalum magnatum offenses, see Lassiter, John C., “Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum, 1497–1773,” The American Journal of Legal History 22:3 (1978):1636.

95. Earl Thanet and Graham (1672); and Bishop of Chester and Jones (1674).

96. Edward I, 1275: None shall report slanderous News, whereby Discord may arise,” in The Statutes at Large: Volume 1, ed. Pickering, Danby (Cambridge: Cambridge University Press, 1762), 97.

97. “Richard II, 1378: The penalty for telling slanderous lyes of the great men of the realm,” in The Statutes at Large: Volume 2, 222.

98. Bedniff & Ux versus Pople & Ux (1672) ER 86, 148.

99. Hale, History of the Common Law in England, 21.

100. Case 347B (1678) 347B ER 89, 214.

101. Rainsford had been dismissed by Charles II for undisclosed reasons in May 1678. Edward Foss and John Campbell have both speculated that Rainsford's dismissal may have been the result of political differences with Charles, although they noted that his dismissal could also have been simply the result of Rainsford's poor health (Foss, Edward, Biographia Juridica: a Biographical Dictionary of the Judges of England, 1066–1870 [London: John Murray, 1870], 545; and Campbell, John, The Lives of the Chief Justices of England [New York: J. Cockroft and Company, 1858], 253).

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

103. Taylor's Case (1675).

104. Dominus Rex and Tayler (1675).

105. Taylor's Case (1675).

106. Dominus Rex and Tayler (1675).

107. “The King against Taylor,” 226–27.

108. Ibid., 227.

109. Taylor's Case (1675); Dominus Rex and Taylor (1675); and “The King against Taylor,” 228.

110. For examples of fines in defamation cases, see King v Philpott (1675); and Dominus Rex v Roberts (1675).

111. Taylor's Case (1675).

112. Ibid.

113. Dominus Rex and Tayler (1675).

114. Taylor's Case (1675).

115. Ibid.

116. Dominus Rex and Tayler (1675).

117. Visconsi, “The Invention of Criminal Blasphemy,” 35.

118. Hunter, “English Blasphemy,” 412; and Clark, English Society 1660–1832, 492.

119. This particular conclusion, that the Restoration regime was less stable than Clark and Hunter have claimed, is consistent with the arguments of Jacqueline Rose, Dmitri Levitin, and Jeffrey Collins demonstrating conflict between Church and king, although their arguments have not extended to cover the common lawyers: Rose, “Royal Ecclesiastical Supremacy and the Restoration Church”; Rose, Jacqueline, Godly Kingship in Restoration England: The Politics of the Royal Supremacy, 1660–1688 (Cambridge: Cambridge University Press, 2011); Levitin, Dmitri, “Matthew Tindal's Rights of the Christian Church (1706) and the Church–State Relationship,” The Historical Journal 54:3 (2011): 717–40; and Collins, Jeffrey R., “The Restoration Bishops and the Royal Supremacy,” Church History 68:3 (1999): 549–80.

120. Writs of prohibition were granted in: Anonymous (1671) ER 86, 747; Fellows against Kingsford (1671) ER 84, 478; 63 (1671) ER 84, 528; Cliffe against Dudny (1671) ER 84, 535; Anonymus (1671a) ER 86, 78; Anonymus (1671b) ER 86, 112; Newman against Kingerby (1672) ER 83, 444; The Dean and Chapter of Durham versus The Lord Archbishop of York (1672) ER 86, 151; Dr Sudbury & c. and Archbishop of York (1672) ER 84, 611–12; Luckham and - (1672) ER 84, 618; Thornton and Pickering (1673) ER 84, 675; Prall against Sir Robert Wiseman (1673) ER 84, 692; Priestman and Langly (1673) ER 84, 708; Anonymus (1673) ER 86, 166; Anonymus (1674b) ER 86, 178; Brown and Palfry (1674) ER 84, 746; Hoddard against the Bishop of Excester (1674) ER 84, 780–81; Walker against the Dean and Chapter of York (1674) ER 84, 784; Subchantor against the Archbishop of York (1674) ER 84, 788; Loddington against Draper (1674) ER 84, 810; Anonymus (1675) ER 89, 183; Richardson versus Disborow (1675) ER 86, 188; Barton's Case (1675) ER 89, 206; Bastard and Stukely (1675) ER 84, 822; Lady Fitzwilliams and Westby (1675) ER 84, 822; Andrews and Simons (1675) ER 84, 846; Wheely and Lambert (1675) ER 84, 868; Mansell and the Dean and Chapter of York (1675) ER 84, 880–81; Syms and Selwood (1675) ER 84, 882; Vanacre and Spleen (1675) ER 84, 887; Pawly and Wiseman (1675) ER 84, 910; Carter and Pecke (1675) ER 84, 913; and Worthy and Buxton (1675) ER 84, 914. Hale's bench also issued writs of mandamus to command particular performances of ecclesiastical personnel, another mode of intervention. Hale's bench heard eleven applications, granting eight of them: Polhill and Blany (1671) ER 84, 475; Officer (1671) ER 83, 111; Anonymus (1671c) ER 86, 79; Ile's Case (1671) ER 86, 104–5; The King against Churchwardens of Kingscleere (1671) ER 83, 432–33; Anonymus (1674c) ER 86, 179; Hughs against Needham (1674) ER 84, 798; and Case 469 (1674) ER 89, 272.

121. Writs of prohibition were granted in: 94. Monday, May 5 (1662) 94 ER 83, 949; 39. Friday, October 31 (1662) 39 ER 83, 990; Tull against Osbaston (1662) 60 ER 83, 998; Parker against Williams (1662) 14 ER 83, 1037; Buxton against Bateman (1662) 15 ER 83, 1037; Fermer against Bennit (1663) 34 ER 83, 1070; Everard against Pory (1663) 8 ER 83, 1089–90; Towerson against Winget (1663) 77 ER 83, 1136; Richardson against Fauconbridge, Fallowfield, &c (1663) 89 ER 83, 1185; and Greenlye against Harper (1664) 69 ER 83, 1285–86. Foster's and Hyde's Benches also heard five applications for writs of mandamus requesting that the bench intervene in the Church's work, granting only two: Dr Kings Case of Colemanstreet (1663) 104 ER 83, 1087; and Dr. Dolben's Case (1665) 37 ER 83, 1298.

122. See, for example, Anonymus (1674c) in which the King's Bench warned an archdeacon protesting the bench's decision to intervene in the ecclesiastical courts to “take heed” of the judgment, and Anonymus (1675), in which Hale himself criticized the mishandling of custom in ecclesiastical courts.

123. Hale, History of the Common Law in England, 30.

124. Consider, for example, Skinner, Quentin, Liberty Before Liberalism (Cambridge: Cambridge University Press, 2012); Skinner, Quentin, “A Genealogy of the Modern State,” Proceedings of the British Academy 162 (2009): 325–70; Skinner, Quentin, “States and the Freedom of Citizens,” in States and Citizens: History, Theory, Prospects, ed. Skinner, Quentin and Stråth, Bo (Cambridge: Cambridge University Press, 2003), 1127; and Skinner, Foundations of Modern Political Thought. Pocock's The Ancient Constitution and the Feudal Law took a related approach, although rather than mapping the deployment of a term, Pocock mapped the deployment of concepts of history, an endeavor that took him beyond the observation of language to treating various pieces of rhetoric that may or may not use the term “history” as all referring to an extralinguistic concept of history (Pocock, The Ancient Constitution and the Feudal Law, 6–8).

125. Skinner, Quentin, “Meaning and Understanding in the History of Ideas,” The Historical Journal 8:1 (1969): 353, at 49.

126. On the need to stop considering theory and practice as distinct categories in early modernity, see Fitzmaurice, “Context in the History of International Law,” 20.

He thanks Conal Condren, Andrew Fitzmaurice, Ian Hunter, Ryan Walter, Alisa Draskovic, Charlotte Johann, Graham Kearns, and Victoria Bliss, as well as Editor Gautham Rao and the anonymous referees of Law and History Review for their insightful comments on earlier drafts of this work.

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Law and History Review
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