In Michaelmas term 1675, John Taylor appeared before the Court of King's Bench, the highest common law court in England.Footnote 1 Taylor was a farmer, and during the Interregnum had been a preacher. He was accused of having declared before three other men in Guildford, in the county of Surrey, that religion was a “cheat,” and that Christ was a “whoremaster” and “bastard.”Footnote 2 Dating back to at least the start of the fifteenth century, those uttering such words had been tried by ecclesiastical courts for the offense of heresy. Taylor had spoken these words at the same time as the House of Lords was considering legislating against “Atheism, Prophaneness and Blasphemy.”Footnote 3 Likely because of this, Taylor did not go directly to an ecclesiastical court to face trial, but came before the Lords to determine in which jurisdiction he should be tried. On the advice of the judiciary—the judges of the three highest common law courts, King's Bench, the Court of Common Pleas, and the Exchequer—Taylor was sent for trial in King's Bench.Footnote 4
There, Taylor was tried and convicted for the common law offense of defamation by a bench consisting of Justices Thomas Twisden, Richard Rainsford, and William Wilde, and Chief Justice Sir Matthew Hale. In the only recorded judgment in the case, Hale—the most senior common law judge at the time—asserted that Taylor had offended God, that Christianity was “parcel of the laws of England,”Footnote 5 and that to speak against it was to threaten to destroy the state. For his offense, Taylor was fined ₤1,000, and pilloried, 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 behavior.Footnote 6
Taylor's Case has enjoyed notoriety for over three centuries. It was cited as precedent, for example, in a range of high profile cases, including Thomas Williams's 1797 blasphemy trial for publishing Thomas Paine's The Age of Reason,Footnote 7 and Richard Carlile's 1819 trial for his publication of the same text.Footnote 8 Most recently, it was cited in Salman Rushdie's 1991 acquittal for blasphemous libel, to ground the claim that the English offense of blasphemy applied only where the Church of England was the party scorned.Footnote 9 In 2005, Baroness Detta O'Cathain cited the case in the House of Lords, in an argument against the abolition of common law blasphemy.Footnote 10
Indeed, even John Stuart Mill railed against Hale's judgment. Mill's attack on the judgment rested on a classically utilitarian formulation: “freedom of discussion has generally, the happiest effects on the mind and manners” and “all religions… ought to be subjected to such discussion.”Footnote 11 For Mill, the law was an instrument of philosophy developed outside legal institutions; where the law, as in Hale's judgment, failed to promote the “happiest effects,” amendment was required. Although modern historians have not followed Mill's argument precisely, a similar approach has been common to much of the scholarship on Taylor's Case and on religion and law in the Restoration more generally.
The connected issue is that numerous modern historians, and in particular intellectual historians, have followed Mill in approaching the common law as a subordinate discipline. Principally, Restoration common law has been treated as an instrument of the king's or Parliament's will, and this argument has been made from a source base of parliamentary debates, pamphlets, and longer polemical tracts, such as Hobbes's Leviathan, rather than from the works of common lawyers and proceedings of the common law courts.Footnote 12 For Jonathan C. D. Clark, Restoration England was a “confessional state,” in particular because of statute law enshrining the Church of England's centrality to the Restoration English state.Footnote 13 Using this context to interpret Taylor's Case, Clark treated the case as expressive of this legislative confessionalization; Hale's judgment demonstrated the “essential unity of the two spheres” of “Church and State.”Footnote 14
Following Clark, Ian Hunter also interpreted Hale's judgment as evidence of legislative confessionalization; as the “bedding-down” of the “Anglican constitutional order.”Footnote 15 Without mentioning Taylor's Case, Jacqueline Rose similarly spoke of a Restoration “Anglican establishment,” which “prosecuted dissenters,” flattening distinctions among the king, Parliament, and the lawyers actually responsible for prosecutions.Footnote 16 Elsewhere, Rose approached the conflict over ecclesiastical supremacy—over who made laws governing the Church—as one between crown and Church, eliding the lawyers entrusted with administering the law.Footnote 17
This tendency to assume that the common lawyers carried out the will of their superiors is even more acute among historians of early modern sovereignty. Quentin Skinner, for example, sees the emergence of a stable concept of the state in the seventeenth century as contingent, in particular, on the emergence of an idea of sovereignty as an exclusive lawmaking power held by a centralized authority, a move that he sees most clearly in the work of Thomas Hobbes.Footnote 18 For Corinne Weston and Janelle Greenberg, working in particular from pamphlet literature, sovereignty referred to the unique power to make law, and the defining seventeenth-century dispute was between those who saw sovereignty as held by the king alone, and those who saw sovereignty as held conjointly between the king and the two Houses of Parliament.Footnote 19 If the sovereign's legislative power was the only form of lawmaking, then the common lawyers and their courts were ciphers in this process, enforcers of the sovereign's laws.
Where intellectual historians have begun to enquire into the Restoration common law, a more complicated account of sovereignty begins to emerge. The most significant attempt by an intellectual historian to give extensive consideration to the common lawyers is the work of John G. A. Pocock. Pocock's engagement with the common lawyers did not treat their legal work as central, but rather enquired into the species of historiography that they produced. Concluding a discussion of Matthew Hale and Restoration royalist history writing, Pocock focused on Hale's “sense of history,” which he considered only a “theory, not a vision of history in the concrete.”Footnote 20 Pocock noted, though, that the idea of custom, central to the common lawyers, was opposed to a “doctrine of sovereignty.”Footnote 21
As will be discussed, it is not so much a “doctrine” that was at issue, but Pocock correctly recognized that an understanding of sovereignty as hierarchical was not ubiquitous and that common lawyers were its opponents, a point that few intellectual historians have recognized.Footnote 22 When we turn to the writings of the common lawyers, we can see that hierarchical sovereignty was not a universally accepted account of law, but rather a particular polemical framing of it that was antagonistic to the common lawyers and resisted by them. In other words, Skinner, Rose, and others have successfully captured a range of perspectives on Restoration sovereignty, but because they neglected the common lawyers, our understanding of it remains incomplete.
The Restoration's most prominent common lawyer, Sir Matthew Hale, the King's Bench Chief Justice who presided over Taylor's Case, explicitly rejected the argument that the common lawyers were subordinate to any higher lawmaking power. Responding to Thomas Hobbes's A Dialogue Between a Philosopher and a Student of the Common Laws of England, which asserted that the king was sovereign and had total control over the common lawyers, Hale claimed that although the king held “soveraigne Power,” sovereignty entailed only a limited set of powers.Footnote 23 These powers did not extend to the control of the common lawyers, alongside whom the king and Parliament worked in the creation and enforcement of laws.
It is through the context of this dispute over the relationship between sovereign and judicial power that I will approach Hale's judgment in Taylor's Case. Taylor's trial was one of the last cases that Hale oversaw prior to his retirement, and was held roughly simultaneously to when Hale was writing his response to Hobbes. The case is important to understanding how Hale's account of judicial office related to his exercise of this office not only because of the simultaneity of text and trial, but also because Taylor's Case addressed the exact question to which the Hale–Hobbes dispute referred: because offenses such as Taylor's had long been the subject of legislation, and prohibitions against dissenting behavior were expanded during the Restoration.
In other words, Taylor came before the King's Bench at a time when there was extensive statute law against behavior like his passed by the sovereign; an excellent testing ground for whether Hale conducted his office according to Hobbes or Hale's response to Hobbes's Dialogue. In testing the relationship between Hale's rhetoric and his exercise of office, this article seeks first to challenge the widespread presumption of the common law's subservience to sovereign power. Rather than simply taking for granted that sovereignty functioned hierarchically through an exclusive legislative power, it begins an investigation of sovereignty from the neglected perspective of the operation of the common law. It does so through an explicit engagement with the texts of the common law: the manuscript records of Matthew Hale's notes on the common law, and manuscript and printed records of cases heard in the Court of King's Bench.
It will become apparent that consistent with this rhetoric of judicial office, Hale's judgment in Taylor's Case implemented a model of lawmaking as a conjoint function of the common law judiciary, the king, and Parliament, with the pre-eminent role being held by the common lawyers, and no role for ecclesiastical lawyers. In doing so, Hale placed little weight on any notion of sovereignty; the sovereign—the king—was only one power, and not the most significant in the lawmaking process. Hale effected such a model by locating Taylor's offense not within legislative or ecclesiastical approaches to heresy, but within the common law offense of defamation; an offense developed largely independent of king and Parliament and focused on the utterance of insulting words, including words that threatened the state. In this process, he relied only in part on broader legislative prohibitions against religious dissent, which he used as grounds for adapting common law defamation to cover God as a defamable party.
In grounding his judgment in common law defamation, Hale relied only minimally on law created by king and Parliament, an approach that shows no subservience by the common lawyers to a higher office. As he did in his response to Hobbes, Hale's judgment rejected the image of sovereignty as the apex of a centralized lawmaking establishment. Such an image therefore cannot have been, as scholars assume, a settled feature of Restoration England or the battleground on which Restoration debate operated. A sovereignty that held sole lawmaking power and subordinated all lawyers to it was a piece of partisan rhetoric, a particular polemical strategy in the broader war over the configuration of offices, and moreover, a rhetoric that did not hold sway over Hale's King's Bench. Historians have mistaken a strategy for the entire battle, reifying as general a particular deployment of the term “sovereignty,” and occluding the operation of the common law courts of England in this process at the cost of our understanding of the struggle between judiciary and king in seventeenth-century England.
In recovering the importance of the rhetoric and exercise of judicial office, this article contributes to the growing literature on early modern office. Increasingly, historians have shown that early modern England was characterized by a “presupposition of office”Footnote 24; a shared acceptance that, in all aspects of life, from parenthood, to monarchy, to the sun, the world was divisible into an array of offices, each constituted by norms of appropriate conduct, and vulnerable to abuse.Footnote 25 One consequence of this recovery of office's ubiquity has been a sidelining of “ideology” as a subject of analysis, because “office” was the defining category of early modern life and therefore the central component of dispute. Indeed, as intellectual historians such as Weston and Greenberg have alleged that the locus of sovereignty was the defining ideological dispute of the Restoration, the recovery of office against ideology already has consequences for sovereignty; less an ideological battleground than a claim of official organization.Footnote 26
This article will consist of three sections. The first section will set out the dispute over the range of judicial office, with particular attention to Hobbes's attempted subordination of the office to that of the sovereign, and Hale's defense of common law independence. The second section will construct the backdrop to Hale's judgment; the legislation and ecclesiastical case law that set out how offenses such as Taylor's were governed. The third section will demonstrate the way in which Hale deviated from both legislative and ecclesiastical approaches to situate Taylor's crime within the exclusively temporal terms of the common law's defamation jurisdiction.
In concluding, I will reflect on the implications of this focus on office for intellectual history more broadly. The fruits of this approach, I argue, are that it enables historians of early modernity to move beyond the linguistic as the only relevant context by which to understand terms. For if office rhetoric was centered on the exercise of office—on the practice of officeholding—then the actions of officeholders are a necessary context, because it is this that disputants responded to, engaged with, and attempted to configure. This article makes the case for such a methodology, interpreting Hale's approach to sovereignty not only through his rhetoric of office, but also through his exercise of it in the courtroom.
I
Taylor appeared before Hale's King's Bench at a time when Hale was directly involved in a debate over judicial office, in which “sovereignty” was a key term. For most of the seventeenth century, the relationship between judiciary and monarch had been contested, with kings and their defenders arguing that judicial office was entirely subordinate to monarchical office,Footnote 27 with notable judges, particularly Edward Coke, denying monarchical oversight on the grounds that the common law required a particular form of reasoning exclusive to those trained in the Inns of Court.Footnote 28 In the 1670s, Hale encountered a manuscript version of Thomas Hobbes's then-unpublished A Dialogue Between a Philosopher and a Student of the Common Laws of England, which contended that judicial office had no scope of independence from him who held, in Hobbes's words, “sovereignty”; the king. In Hobbes's account, judicial office was entirely subservient to sovereign office, and judicial reasoning consisted in merely applying sovereign dictates.Footnote 29
Hale wrote multiple works on the powers of the sovereign, with Prerogativa Regis his most extensive reflection on the subject.Footnote 30 This text was most likely written between the 1640s and the early 1660s, with the bulk written during the 1650s,Footnote 31 significantly preceding Taylor's Case and the events that made it possible: the restoration of the monarchy and Church of England, and Hale's rise to chief justice of King's Bench. It is for this reason that this section focuses on two other works, Hale's response to Hobbes's Dialogue and his History of the Common Law in England. These texts were written simultaneously to Taylor's trial, and Hale's unfinished response to Hobbes's Dialogue reveals him doing battle not only with a notion of sovereignty that has animated scholarship, but also with a notion of sovereignty put forward by Charles II's former tutor. In short, these later texts provide examples of Hale's rhetoric of judicial office that are significantly more proximate to the exercise of office under study than his earlier, more comprehensive discussion.
Hale's unfinished response to Hobbes was first published in 1921 by William S. Holdsworth, who produced a copy of Harleian MS 711 from Hale's private papers. Hale, though, wrote at least one other copy of his response to Hobbes, MS 3479. This manuscript remains in the care of Lambeth Palace Library, where most of Hale's papers are now kept, and like MS 711, is unfinished. Although Hale's arguments across the two manuscripts are similar, MS 711 contains extended detail and a more aggressive polemic. I will draw on both versions of Hale's response to Hobbes to demonstrate his rejection of an image of common law judicial office dominated by a sovereign monarch. Both versions of Hale's response consist of two parts, the first corresponding to the first chapter of Hobbes's Dialogue, the second corresponding to the second chapter.
In the first chapter of the published manuscript, “In Caput Primum of Laws in Generall and the Law of Reason,” Hale defended the techniques of reasoning wielded by judicial office holders as unique and inscrutable to all others, including the king. In a clear rebuttal of Hobbes's sovereign model of law, Hale never deployed the term “sovereign,” or even mentioned the king. For Hale, the intensive legal training of the Inns of Court was necessary to understand the law and to operate within it. Following Coke, who had similarly advocated intensive study as the basis of judicial office,Footnote 32 Hale claimed that judges had to undergo a process of “habituateing and accustomeing and Exerciseing that [reasoning] Faculty by readeing, Study and observation.”Footnote 33 Those who sought to hold common law judicial office without such training would make, for Hale, “the worst Judges that can be.”Footnote 34
Hale similarly warned, in MS 3479, of the danger of letting those untrained in law hold judicial office, writing of the “harminge” that would arise if men “inacquianted with the institution” of the common law held judicial office.Footnote 35 Explicating this claim in similar prose to that of the Harleian manuscript, Hale asserted that only those trained in the common law could work in it, because it was not “indeterminate reason or reason at large” that grounded the common law, opening the institution to all, but “reason modifyed” to its “spetiall object.” As a “watchmaker proceedes by a reason accomodate to his art,” as does “the shoemaker,” so must a lawyer proceed using a form of reason appropriate “to his art,” a reason possessed only by those sufficiently acquainted with the law through legal training.Footnote 36
In his History of the Common Law in England, Hale provided further explanation of the deep knowledge possessed by common lawyers, buttressing his defense of the uniqueness of their reason and the inability of those untrained in the common law to intervene in its operation.Footnote 37 Common law reason involved deep study in and ability to cite and deploy in judgment the lex scripta—statute law created by king and Parliament—and the lex non scripta—the unwritten common laws of England, the origins of which stretched back “before Time of Memory,” and the contours of which could be determined through studying previous judgments.Footnote 38 One consequence of this official comportment was, for Hale, that judges could not look beyond the law. They could not, for example, turn to moral philosophy,Footnote 39 the “reason of the polititian or philosopher,”Footnote 40 or undertake Biblical exegesis.Footnote 41 Indeed, as Hale wrote in the Harleian “Reflections,” to do so would be to invite “greate Instabilitie” to the state.Footnote 42 Hale's argument echoed Coke's justification of grounding judicial office in those precedents “formerly approued and allowed” as “safe.”Footnote 43
Given Hale's defense of the judiciary as possessed of unique arts of reasoning inscrutable to those lacking legal training, it is unsurprising that where he did use the term “sovereignty,” he offered a usage utterly unlike Hobbes's. Where Hobbes's sovereign appears like that which scholars such as Skinner, Weston, and Greenberg have assumed characterized the Restoration—a supreme authority commanding a hierarchical juridical institution—Hale offered a significantly diminished role for sovereign office. Such minimization was not uncommon in common law tracts: Christopher St German, for example, had reduced the sovereign to only one of six legal sources, grounding judicial office in so dispersed a set of sources that monarchical control was impossible.Footnote 44
Although Hale agreed with Hobbes that in England “soveraigne Power” lay with the king, he contended that English sovereignty referred only to a limited range of attributes.Footnote 45 What Hobbes spoke of was “absolute Dominion or Sovereignty,” which although possible, was “rare.”Footnote 46 In England, the sovereign's range of powers extended to declaring war and peace, pardoning, giving value to coin, raising a militia, founding legal jurisdictions, and making laws.Footnote 47 These powers were subject to two restrictions. First, to raise money to fund a militia or send it abroad required Parliament's consent. Second, and most importantly, parliamentary consent was also required for the king to legislate at all; he could not make law alone.Footnote 48
Moreover, these limitations on sovereign power arose from the lex non scripta, the repository of ancient law that arose principally through custom, not sovereign act, and that was the exclusive preserve of the common lawyers. In other words, not only was the king's lawmaking power non-exclusive, but he was also restrained by the law, a direct counter to the arguments of Hobbes and his predecessors for a legally unlimited king. As Hale claimed, the “Laws… in many cases bindes the Kinges Acts, and make them void if they are ag[ains]t the Lawe.”Footnote 49 Judicial office was grounded in part upon laws made by the king, but more significantly, it was grounded upon ancient laws developed beyond sovereign purview, which in some cases limited the monarch. Although the king was “Supreame Governour of this Realme,” this supremacy was subject to “Qualifications,” which were in the hands of the common lawyers.Footnote 50
II
At the same time as Hale penned this defense of judicial office against Hobbes, Taylor was brought before Hale's King's Bench. Religious slurs like Taylor's had long been treated as the ecclesiastical offense of heresy, which had existed from at least the twelfth century, although the basis upon which these early ecclesiastical courts claimed jurisdiction over heresy is unclear.Footnote 51 As was discussed in the previous section, both Hale and Hobbes saw legislating as an attribute of sovereignty, although the former denied that legislation was the only way law that was made. They would have recognized, then, that the first sovereign prohibition against offenses like Taylor's was Henry IV's 1400 heresy statute, passed after a failed attempt to legislate against heresy in 1382 by Richard II.Footnote 52
Successive monarchs legislated on heresy throughout the fifteenth and sixteenth centuries, before the ecclesiastical offense was abolished in 1641 in the Long Parliament's amendment of the Act of Supremacy,Footnote 53 prior to the broader disestablishment of the ecclesiastical courts themselves.Footnote 54 The related offense of blasphemy was legislated against during the Interregnum, and the Quaker James Nayler was convicted for blasphemy by the Interregnum Parliament. Ecclesiastical heresy, though, was resuscitated in 1661 when Charles II revived the ecclesiastical courts to exercise ecclesiastical law as it had been practiced before 1641. This resuscitation constituted part of a wider set of statutes implemented during the Restoration prohibiting religious dissent.
Hale would have known this legislative history well. He had written on it in his Pleas of the Crown, Footnote 55 and as chief justice of King's Bench, was responsible for determining disputes over jurisdiction between common law and ecclesiastical courts. He therefore would have had an intimate understanding of the ways in which an offense like Taylor's had been defined prior to Taylor's appearance before King's Bench. In particular, Hales's knowledge of the history of legislation against heresy and blasphemy meant that he was well aware of the ways in which offenses like Taylor's had been defined through sovereign act. In this section, I will provide a summary of the array of linguistic options—that is to say, of the rhetorical approaches preceding legislators and courts deployed regarding offenses like Taylor's—available to Hale from this repository of parliamentary and ecclesiastical action against heresy and religious dissent, which he could have deployed in trying Taylor.Footnote 56
Richard II's late fourteenth-century attempt to legislate heresy as an ecclesiastical offense developed a language that persisted throughout subsequent statutes into the mid-sixteenth century. Richard's statute defined heresy as, respectively, a threat to the “spiritual” estate of the realm, because it was a threat to the “christian faith” and the “souls of the people,” and to the “temporal” estate of the realm, because it threatened the “destruction of the laws” and was therefore “to the great peril of all the realm.”Footnote 57 “[S]piritual estate,” importantly, referred not only to the Church itself, but to its work in encouraging faith and protecting the souls of the people. In 1400, Henry IV successfully passed the first statute against heresy. Henry's statute retained Richard II's focus on the spiritual and temporal, defining heresy as a threat to the “faith and doctrine of the holy church,” and encouraging of “sedition and insurrection,” respectively.Footnote 58
Ensuing attempts to legislate on heresy by Henry V,Footnote 59 Henry VIII,Footnote 60 and Mary I all used similar definitions.Footnote 61 The final attempt by a sovereign to legislate on heresy as an ecclesiastical offense came in 1559, in Elizabeth I's Act of Supremacy. Repealing the earlier statutes, Elizabeth established a new test for heresy that required ecclesiastical courts to rely directly on the Bible, the proceedings of the first four ecumenical councils, or any other general council of the Church when establishing which acts were heretical.Footnote 62 With this amendment the language of spiritual and temporal threat disappeared; heresy was to be found through reference to these sources, not through the ascertaining of whether the words in question threatened the spiritual and temporal estates of the realm.
This focus on religious slurs as a threat to the spiritual and temporal estate returned in parliamentary legislation during the Interregnum, although these statutes focused on “blasphemy” rather than “heresy.” The first blasphemy statute, passed in 1648, made no reference to whether blasphemy was a threat temporal, spiritual, or both,Footnote 63 but such a definition was central to the 1650 statute. The Rump Parliament's 1650 statute against blasphemy addressed the preservation of faith—historically treated as a spiritual concern—by seeking to ensure God was “truly glorified,” and sought to prevent “the dissolution of all Humane Society,” a temporal concern.Footnote 64 Although the statute was not cited when Parliament tried the Quaker leader James Nayler in 1656, Bulstrode Whitelocke, who led the trial, relied on similar language. Nayler had performed an impression of Christ's entry to Jerusalem when entering Bristol with his followers.Footnote 65 Defending the decision not to execute Nayler, Whitelocke invoked the “law of god,” and the need for punishment to address the “preservation of the people and Commonwealth of England.”Footnote 66
Charles II's ascension to the throne in 1660 brought the re-establishment of the Church of England and the ecclesiastical courts,Footnote 67 as well as a brace of fresh statutes against religious dissent known as the Clarendon Code, which sustained the rhetoric of spiritual and temporal threat. From 1661, a series of statutes were passed that required civil officers take the sacrament in accordance with Church of England dictates and deny transubstantiation, banned dissenting meetings and placed restraints on dissenting preachers, and enforced adherence to the Book of Common Prayer.Footnote 68 Notably, this last law, found in the 1662 Act of Uniformity was described as necessary on both spiritual and temporal grounds. Confessional uniformity was necessary for “settling the Peace of the Nation,” and its absence was “to the hazard of many souls.”Footnote 69
Focusing on the work of monarchs and Parliaments only tells part of the story, however, because with scant exceptions, such as Nayler's trial, trials for blasphemy and heresy were conducted in ecclesiastical courts.Footnote 70 Although legislation regarding heresy was passed through sovereign act, the exercise of this legislation rested with ecclesiastical lawyers, and an investigation of two prominent early seventeenth-century cases reveals an understanding of heresy divergent from the legislative; a first challenge to the model of hierarchical lawmaking. For all the consistency with which king and Parliament created statutes that cast offenses like Taylor's as a threat to both the spiritual and temporal, the ecclesiastical courts offered a divergent rhetoric.
In the 1612 heresy trials of Bartholomew Legate and Edward Wightman, the presiding bishops articulated identical accounts of heresy as an exclusively spiritual threat. Legate appeared in the ecclesiastical court at St. Paul's in March 1612, accused of having denied Christ's divinity. Refusing to abjure his heresies, Legate was sentenced to execution, a process that required the granting of a writ by Chancery and his transmission to the local sheriff. In sentencing him, Bishop John King described his heresies as “contrary and repugnant to the Catholick faith and religion, and the holy word of God,” as well as threatening to the “holy church.”Footnote 71
Edward Wightman's conviction in the same year by an ecclesiastical court in the Diocese of Coventry and Lichfield, presided over by Bishop Richard Neile, demonstrated an identical definition of heresy. Wightman's claims had included a denial of the existence of the Holy Trinity. In applying for a writ from the Court of Chancery for Wightman's execution, Neile justified the need to execute Wightman on spiritual grounds. In Neile's words, Wightman was a “corrupt member… of the flock of Christ” who needed to be “cut off … lest he should infect others professing the true Christian faith.”Footnote 72 For these judges, to be a heretic was therefore not to cause any direct harm to the state, but exclusively to threaten the spiritual estate through the endangering of lay faith.
Importantly, the available punishments for heretics emphasized spiritual concerns, too. Although Legate and Wightman were executed, such a punishment was the last resort of the courts. Legate was sentenced to execution only after refusing to abjure his heresies.Footnote 73 Had he reformed his faith, his life would have been spared, and we can see an example of this in the 1631 heresy trial of William Slater in the Court of High Commission, at the time the most senior ecclesiastical court. Slater was imprisoned for his heresies and released only once he claimed to be “heartily sorrie” and had asked forgiveness from God and the Church of England.Footnote 74
Indeed, the fact that punishments focused on spiritual reform rather than temporal redress is consistent with these courts treating heresy less as a matter of words spoken, but of beliefs held. Legate was described as holding “false opinions… impious doctrines” and was of a “plainly incorrigible mind.”Footnote 75 Wightman was accused of holding “damnable and heretical opinions.”Footnote 76 Samuel Pretty, another heretic convicted by High Commission in 1631, was proved a heretic not only because he had preached “schismaticall” views, but also because he had affirmed his views “in private conference with another minister.”Footnote 77 These offenses existed in a plane distinct from the temporal: heretical belief occasioned a spiritual threat, amendable through renunciation. Only the failure to renounce led to death.
III
Confronted with Taylor's words in 1675, Hale was aware of this rich background of monarchical, parliamentary, and ecclesiastical approaches to heresy and religious dissent. Aware, that is, of the history of how heresy was defined both through sovereign act and in the realm's ecclesiastical courts. We can see Hale's awareness of this history in his own notes on the case, which directly address the relationship between the sovereign and common law courts. While serving as King's Bench chief justice, Hale kept a manuscript record of all cases he had heard in the court, kept in Lambeth Palace Library as MS 3478. Unfortunately, many are incomplete or indecipherable, a result of Hale's cramped writing style, propensity to spill ink across his pages, and general damage suffered by the notebooks over time.Footnote 78 Although some of his notes on Taylor's Case remain, they suffer from being both incomplete and indecipherable. For a more complete account of Hale's actual judgment, we must rely on printed court reports.
What remains of Hale's personal notes on the case is a reflection on the legislative history covered in the previous section of this article, clear evidence that Hale was not only aware of this history but also considered his judgment an engagement with the history of the sovereign–judge relationship. Most notably, Hale's discussion of Charles II's Royal Declaration of Indulgence rejected any Hobbesian notion that the sovereign alone made law. The Declaration was made in 1672 to provide indulgence for Protestant dissenters and Catholics, and withdrawn the following year because of widespread opposition. Hale dismissed the legality of such an attempt by the sovereign to make law without Parliament, repeating a claim advanced in his “Reflections”: the Declaration was invalid for “religion had the…authority of an act of Parlement” and so “was not alterable by the kings… without an act of Parlement.”Footnote 79
Hale's notes might have affirmed Parliament's legislative capacity, but his judgment was not an unqualified endorsement of the statute law on religious dissent, because although this legislation played a role in Hale's judgment, it was overshadowed by his reliance on precedent found within the common law itself. Historians have tended to see Hale's conviction of Taylor as evidence of the common law following Restoration legislation that supposedly unified Church and state, and this story must undergo significant modification, because detailed contextualization reveals no such exclusive adherence to statute. Rather, Hale's judgment blended lex scripta and lex non scripta with an emphasis on the latter.
In blending these sources, Hale rejected the language of spiritual harm from the governance of such offenses, a language that had formed part of statutory heresy and was the principal component of ecclesiastical heresy. In doing so, he excluded any ecclesiastical purchase on Taylor's offense. In his judgment of Taylor, Hale eschewed not only the approach taken to such offenses by the Church of England, but also that proffered by Hobbes and others, which insisted that judges simply followed sovereign dictate. Hale's judgment aligned with his rhetoric on judicial office as expressed in his response to Hobbes: judges interpreted past judgments, and applied these in judgments through blending with relevant statutes created by king and Parliament.
As well as overlooking Hale's notes on the case, historians have tended to privilege only one of the four reports of the case. In particular, they have focused their attention on Hale's claim, recorded by the common lawyer and later Judge of the Court of Common Pleas, Sir Peyton Ventris, that “Christianity is parcel of the laws of England.”Footnote 80 But this quote appears only in Ventris's report of the case; one of four printed reports of Taylor's Case. It does not appear in the report of King's Bench Barrister John Tremayne,Footnote 81 and a variation of it appears in one of common lawyer and court reporter Joseph Keble's reports. Keble quoted Hale as having claimed that “Christian religion is a part of the law it self.”Footnote 82 These other reports have not received the attention of scholars, nor have Hale's manuscript records on the case.
Even if we take Ventris's report alone, as has been the tendency among scholars, it is clear that they have conducted their analysis through the isolation of a particular passage, rather than through a holistic reading of the report, because when read in full, Hale's judgment reveals not that he fell in line with the dictates of a confessionalized sovereignty, but that he broke with core aspects of ecclesiastical and statutory approaches to heresy. Where Church courts emphasised the spiritual nature of offenses like Taylor's, and statute law emphasized the dual spiritual–temporal threat that such offenses posed, Hale argued that the only reason Taylor was tried at common law was for the temporal implications of his words.
Hale began his judgment with an explicit claim of the temporal threat of Taylor's crime. Taylor appeared before a common law court because his words were a “crime against the laws, State and Government, and therefore punishable in this Court.” “For,” continued Hale, “to say religion is a cheat, … is to dissolve all those obligations whereby… civil societies are preserved.”Footnote 83 The longer of Keble's reports attributed similar statements to Hale, although Keble's Hale offered a more precise jurisdictional demarcation. In Keble's report, Hale claimed that although Taylor's words were of “ecclesiastical cognisance,” it was because they “tend[ed] to the dissolution of all government” that he was “punishable here.”Footnote 84
We can better understand this division that Hale sought to draw from Keble's reports of the case, which listed Taylor's offense as defamation. Although many cases reported in King's Bench record the type of offense, neither Ventris nor Tremayne listed the offense that Taylor was convicted for. Keble, however, recorded Taylor as having been convicted for “slander,” also known as the common law offense of defamation. Although it did not specify offense, Tremayne's report noted Taylor's intention to “defame.”Footnote 85 This basic detail has so far eluded the scholarship on Taylor's Case, which has uniformly claimed that the case represented the first trial for blasphemy.Footnote 86 Although one of Keble's reports and Tremayne's report of Taylor's Case use the word “blasphemy,” neither of them lists it as the offense for which he was convicted.Footnote 87
The offense of defamation had evolved almost entirely within the common law, with little statutory influence, and it explicitly centered on the redress of temporal harm arising from insulting words. In treating Taylor's offense as defamation, Hale located it outside the lawmaking powers of king and Parliament. Reading Taylor's Case in light of the history of English defamation law further reveals that Hale was consciously avoiding the language of spiritual harm used in statute law and central to ecclesiastical law, avoiding the terminology of sovereign and Church to instead render Taylor's offense in exclusively temporal terms. Not only was Taylor's Case heard in a common law court, rather than in an ecclesiastical court, but also Hale's judgment eschewed the language of ecclesiastical law.
Defamation was an offense in both common and ecclesiastical law.Footnote 88 The King's Bench acted as a court of appeal for lower common law courts and heard applications for writs of prohibition to halt defamation suits in ecclesiastical courts. Hale's King's Bench heard twenty-four defamation cases between 1671 and 1675.Footnote 89 Across these cases, Hale and his fellow judges articulated a consistent understanding of the common law's defamation jurisdiction. For them, defamation at common law meant using words against another that threatened or caused temporal harm. Importantly, the justices distinguished their practice from the concerns of the ecclesiastical courts, which they claimed focused on the spiritual reform of slanderers.
The clearest articulation of this focus on the temporal effects of word use during Hale's tenure as King's Bench chief justice was in fact in a case not heard in the Court of King's Bench. In 1671 the Court of Common Pleas heard the defamation trial of Sir Edward Lake, a former royalist army officer.Footnote 90 Among the justices on the bench was William Wilde, who would be appointed to King's Bench 2 years later, where he would preside over Taylor's trial alongside Hale. King v Edward Lake centered on a letter written by Lake which had asserted that King, a lawyer, had encouraged a client to pursue a vexatious suit for his own financial gain. King claimed that the letter had resulted in a loss of clients. In declaring the words actionable, Wilde explained that the common law “takes care of a man's livelihood and fame, as well as of his life,” claiming that this was a “general rule” underpinning the common law's defamation jurisdiction.Footnote 91
Although not as explicit, judgments handed down by Hale in King's Bench reflect Wilde's articulation of the common law's defamation jurisdiction. In Phillips versus Kingston (1671), for example, Hale held actionable an allegation that the plaintiff had broken his father's ribs, from which his father died. Although the defendant contended that he had not meant that the plaintiff had intentionally broken his father's ribs, Hale's bench found that it was the defendant's additional statement that the plaintiff would be hanged that confirmed that the words constituted defamation. As the words in question suggested that the plaintiff had committed a “murdrous killing,” for which he could be executed, they were actionable.Footnote 92 In short, the temporal threat of execution rendered the words actionable at common law.
Elsewhere, a concern with threats to employment was evident in Crawfoot versus Dale (1674), which involved a tradesman accused of being a “cheating knave” who kept “a false debt-book, with which he cheated the country.” Again, the defendant pleaded innocence, arguing that to describe a tradesman as a cheating knave was not actionable as it could simply refer to a tradesman selling his goods at too high a price, and that a false book could be kept by accident. Hale's bench rejected these arguments, declaring that tradesmen's debt books were “of [so] much regard” that they could be used as evidence. Further, as the defendant's accusations were spoken during a discussion of the plaintiff's work, the words constituted a threat to the plaintiff's employment, and were therefore actionable.Footnote 93
Importantly, the common law was not merely concerned with harm to the slandered party, but also with whether slander threatened damage to the state, because King's Bench also had jurisdiction over scandalum magnatum offenses, a particular form of defamation wherein scandalous words were spoken of members of the nobility or other prominent officials.Footnote 94 This jurisdiction had initially belonged to Star Chamber, but was taken over by the common law courts following its abolition. Hale's bench heard two cases of scandalum magnatum, the first involving an earl, and the second involving a bishop.Footnote 95 This action relied on statute law that emphasized that slandering the nobility was actionable for threatening 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.”Footnote 96 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.”Footnote 97
That defamation in the common law courts centered on temporal harm to the slandered party or state was not only affirmed through King's Bench decisions in defamation cases, but also when the justices distinguished between common law and ecclesiastical law. When confronted with writs of prohibition for ecclesiastical defamation cases, Hale and his colleagues asserted that, unlike common law courts, ecclesiastical courts sought to spiritually reform slanderers. In Bedniff & Ux v Pople & Ux (1672) an application for a writ of prohibition was brought before Hale's bench to halt an ecclesiastical defamation suit involving a woman being called a whore. The application contended that the words were “common words of brabbling,” and therefore imported no slander. Hale rejected this claim, declaring an ecclesiastical defamation trial appropriate because the ecclesiastical courts held the power to order “penance.”Footnote 98
In his writings on law, Hale offered a sharper description of the function of the ecclesiastical jurisdiction: it existed pro reformatione morum (for the reformation of morals) and pro salute animae (for the salvation of souls).Footnote 99 Although Hale did not use these terms in King's Bench, justices who presided over Taylor's Case with him did. In two 1678 cases, the common law and ecclesiastical jurisdictions were distinguished on the grounds that the ecclesiastical courts existed pro reformatione morum. In the first of these cases, Case 347B (1678), Chief Justice Rainsford, alongside Justices Wilde, Twisden, and Thomas Jones granted a writ of prohibition for an ecclesiastical defamation suit in which an unnamed woman had been called a “whore.” In deliberating on the case, Justice Wilde declared that the common law and ecclesiastical courts had divergent purposes, as the ecclesiastical courts existed “pro reformatione morum.”Footnote 100
This phrase was further explained in Browne against Averie (1678), presided over by Justices Wilde, Twisden, Jones, and Chief Justice William Scroggs.Footnote 101 Browne had called Ms. Averie a “whore” and an “old whore,” and had applied to King's Bench for a writ of prohibition to halt her ecclesiastical defamation suit, claiming that the Court of Common Pleas typically granted prohibitions in such cases. In refusing to grant the writ, the justices claimed that Browne's slander belonged in an ecclesiastical court, distinguishing this jurisdiction from the common law on the grounds that whereas common law courts existed to redress damages, ecclesiastical courts were “pro reformatione morum.”Footnote 102
Regardless of which report we look at, Hale clearly located his judgment in Taylor's Case within this broader tradition of defamation judgments. Ventris recorded Hale as describing Taylor's words as a “reproach,”Footnote 103 and Keble recorded Hale describing them as “contumelious reproaches.”Footnote 104 Ventris and Keble also recorded Hale as describing Taylor's insulting words as occasioning temporal harm: for Ventris, they dissolved “civil societies”Footnote 105; for Keble, “all government.”Footnote 106 The third reporter, Tremayne, did not quote Hale but instead recorded the charge brought against Taylor, and the verdict of his trial. Read in conjunction with Ventris's and Keble's reports, we can see the degree to which Hale was consciously deploying the language of temporal damage central to common law defamation and eschewing the language of spiritual harm featured in statutes and ecclesiastical court practice.
The information brought against Taylor reveals a prosecution deploying an idiom entirely culled from the language of sovereign-made statutes in which offenses like Taylor's threatened both temporal and spiritual harm. For the prosecution, Taylor's offense was blasphemy. The information against him claimed that Taylor was guilty of “blasphemy,” of having “blaspheme[d],” and of having spoken “wickedly, and in a blasphemous manner,” and even went so far as to claim that Taylor did so through satanic intervention, having been “moved and seduced by the instigation of the devil.”Footnote 107 Such blasphemies threatened the “profession of the true christian religion,” but also “government and society.”Footnote 108 That Hale ignored the language of spiritual harm for that of temporal harm, even when Attorney General William Jones's information invoked the language of spiritual harm, shows the degree to which Hale was attempting to bring the resources of the common law to bear on Taylor's crime.
Hale's sentencing of Taylor, moreover, bore no similarity to cases heard in the ecclesiastical courts, and emphasized the temporal dimension of his offense. Taylor was fined ₤1,000, sentenced to imprisonment until he could provide lifetime sureties for good behavior, and sentenced to the pillory, where he was to stand with a paper explaining his crime.Footnote 109 Financial penalties were standard in defamation cases, and the requirement of sureties for good behavior reflects a clear concern with maintaining order.Footnote 110 Unlike in ecclesiastical heresy cases, the status of Taylor's soul was never at issue. In contrast to Legate, Taylor was not offered the chance to abjure his statements, or to beg for forgiveness like Slater. It was irrelevant, too, whether Taylor believed his claims: it was sufficient that he had spoken them in front of witnesses.Footnote 111 This was not a spiritual offense in need of spiritual remedy but, for Hale, an offense occasioning a temporal harm in need of prevention.
Hale adapted the common law's defamation jurisdiction, though, because he expanded who could be defamed. In his judgment, Taylor had defamed God and religion. According to Ventris, Taylor's words were an “offence to God and religion.”Footnote 112 In Keble's telling, Taylor's “contumelious reproaches” were against “God, or the religion establisht.”Footnote 113 Crucially, Hale is not recorded as having considered Taylor's offense a threat to the spiritual estate: he did not focus on harm to the Church or to the Church's mission of saving souls. Rather, Taylor's offense had been to insult God, and in so doing, to threaten the state. The structure of the offense resembles scandalum magnatum cases: it was not the damage to the slandered party that defined the crime, but the danger to peace resulting from the slanderous words.
Hale's justification for considering God a party who could be subject to defamation, it would seem, was a result of the legislative entrenchment of the Church of England. Read in the context of his full judgment, Hale's claim, as recorded by Ventris, that “Christianity is parcel of the laws of England,” seems simply a reference to the fact that legislation had enshrined the centrality of the Church.Footnote 114 This was no claim, certainly, that ecclesiastical or statutory treatments of heresy should prevail in the common law. In Ventris's report, Hale followed this claim by declaring that to speak against Christianity was a subversion of English law.Footnote 115 Keble recorded Hale as having said that as Christianity was part of English law, “injuries to God are as punishable as to the King, or any common person.”Footnote 116
If we consider these statements against the backdrop of the heresy trials covered in Section II, it seems even more plausible that Hale treated the Clarendon Code as granting God legal personality. Previous convictions for offenses like Taylor's—Nayler's, Legate's, and Wightman's—all preceded Charles II's reign, and therefore the Clarendon Code legislation. In the wake of this legislation, Hale had justified hearing Taylor in a common law court claiming, according to Ventris and Keble, that Christianity was part of English law, and that in insulting God, Taylor had subverted English law. In short, Hale's claim appears to be that Restoration legislation had rendered God a character within English law who could now be subject to defamatory offenses. It was through recent legislation that Hale adapted common law defamation—a blending of lex scripta and lex non scripta—to cover this new character.
Conclusion
Reading Taylor's Case against this background of case law, we can see that Hale's judgment was a conscious attempt to align Taylor's offense with common law defamation precedent, the scope of which he expanded through reference to legislation. In doing so, he relied only in part on statute law, offering a vague allusion to legislation, but no reliance on the language of statute. Importantly, he entirely forsook the language of spiritual harm used in heresy statutes and the Act of Uniformity, and central to the ecclesiastical offense of heresy. Although Hale admitted that Taylor could have been tried in an ecclesiastical court, he emphasized that Taylor appeared before a common law court because his words threatened the state.
This reading of Taylor's Case significantly complicates our understanding of Restoration sovereignty. We can now see that an understanding of sovereignty as hierarchical was factional, a particular argument against the common law's independence rejected by Hale in his rhetoric and exercise of judicial office. Hierarchical sovereignty was not, as historians have often assumed, a neutral account of English law, but a polemical position, and this article's recovery of Hale's opposition to it builds on this earlier research, expanding our sense of the ways in which sovereignty could be contested in the Restoration. Hale referred to legislation in his judgment, and it appears to have provided the grounds for his adapting common law defamation; however, he avoided legislative approaches to religious dissent and heresy. For the most part, Hale's judgment reveals a dedication to the insular process of lawmaking within the common law. Defamation law had evolved almost entirely outside of king and Parliament, and Hale entrenched his judgment within this tradition that treated defamation as insults threatening or causing temporal harm.
That Hale's judgment in Taylor's Case reveals a blending of statute and common law, a blending of lex scripta and lex non scripta, shows that his defense of his office against Hobbes bears a significant similarity to his exercise of office. As Hale suggested that common lawyers root their judgments in the collation and adaptation of past judgments and statutes, so he blended an understanding of common law defamation with Restoration legislation. Crucially, as was discussed, his rhetoric of office eschewed the language of hierarchical sovereignty. His official practice, too, recognized no superior sovereign, but rather a reciprocal relationship among the judiciary, king, and Parliament, as all holding different roles in the implementation of law.
Indeed, Hale's resistance in his judgment in Taylor's Case to a hierarchical account of sovereignty not only enlarges our sense of the contest over sovereignty, but also enriches our understanding of a confessionalized Restoration. Certainly, claims that Hale had a “chiefly secular purpose in mind” are unfounded, given that one implication of his judgment is that the Clarendon Code granted God legal personality.Footnote 117 But the judgment does not show either a “bedding-down” of the “Anglican constitutional order,” or the “essential unity” of the Restoration Church and state.Footnote 118 Rather, it reveals a contested Restoration constitutional order featuring common lawyers such as Hale—those responsible for the implementation of the kingdom's laws—antagonistic toward any subordination to king and Parliament or the Church.Footnote 119 Although it was evidence of confessionalization, Hale's judgment proffered a form of confessionalization that prioritized the temporal over the spiritual and that paid only slight heed to king and Parliament, and none to the Church of England.
Hale's image of a network of reciprocal offices gave pre-eminence to the common lawyers in two ways. First, although statute was referenced in his judgment, Taylor was convicted of defamation, an offense developed almost entirely beyond king and Parliament. Second, in denying any place of significance to ecclesiastical law, Hale positioned the common law as the highest legal jurisdiction, with ecclesiastical law subordinated to its authority. In trying Taylor at common law, Hale rendered an offense once the property of ecclesiastical lawyers firmly within the jurisdiction of the common law. Taylor's Case was not unique in this respect, because it formed part of a wider project by Hale's King's Bench to impose the common law on a range of matters previously considered the domain of the ecclesiastical courts.
Hale's King's Bench heard sixty-four applications for writs of prohibition, and granted thirty-three of them, demonstrating a significant willingness to remove cases from the ecclesiastical jurisdiction into common law.Footnote 120 In comparison, under Chief Justices Robert Foster and Robert Hyde, the first two King's Bench chief justices of the Restoration, whose terms as chief justice collectively spanned the same length as Hale's, the bench heard only thirty-three applications for writs of prohibition, and granted only ten.Footnote 121 Moreover, Hale's bench's encounters with the ecclesiastical authorities were at times characterized by particular severity from the bench toward the Church and its personnel.Footnote 122 A possible explanation for Hale's aggression in this area is that he saw the common law as a positive force. He had, after all, claimed that the common law was responsible for resolving the “Errors, Distempers or Iniquities” of the Civil Wars.Footnote 123 Taylor's Case enforced a model of official reciprocity among king, Parliament, and common lawyers, with the last holding the dominant role in the implementation of law, a model that excluded the ecclesiastical lawyers, subordinated to the rival common lawyers.
To conclude, I will tease out a particular methodological implication of the approach pursued here. Intellectual historians have tended to approach the study of a term by mapping its deployment, comparing usage among various actors, and grouping these actors according to alliances and oppositions.Footnote 124 This practice constitutes, of course, an attempt at contextualization; the location of a term within its “linguistic context.”Footnote 125 This article, too, has sought to contextualize a term: “sovereignty.” It has done so, however, with the recognition that the most pressing context for studying such a term in seventeenth-century England is not the general category of the linguistic, but the official.
The official was the dominant means of conceiving of social position, and its configuration was the locus of rhetorical contest. Once we regard it as an attribute of official organization, sovereignty talk must be understood as eminently practical, with “sovereignty” being a word deployed in service of particular social arrangements: for Hobbes, to subordinate lawyers to the sovereign; for Hale, as part of a wider official network that shared reciprocal roles. The point here is that to talk of sovereignty in early modern England was often to make a claim about the exercise of judicial office; for Hale of its independence, for Hobbes of its lack thereof.
To understand adequately the debate about sovereignty, then, we must give sufficient attention to the work of the common lawyers of the English realm central to such dispute. Given, that is, that Hale contested Hobbes's model of a sovereign directing judicial practice with one of judicial office's independence, the field of battle is not merely linguistic, but also practical. Hale's judgment in Taylor's Case must be considered as significant a piece of the dispute over sovereignty as the claims of any polemicist; perhaps even more significant. Historians must, in short, give greater consideration to the official context of word use, and thus give greater attention to the proximity of rhetorical contest that sought to shape office and the exercise of the offices in question, rather than reifying a category such as the linguistic and conducting their investigations at a degree of theoretical abstraction. To do so is to impose a dichotomized model of theory and practice onto a world alien to such categories.Footnote 126
