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Hobbies and Hale on law, legislation and the Soverign

Published online by Cambridge University Press:  16 January 2009

D. E. C. Yale
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Extract

Many years after launching Leviathan and towards the end of his life Thomas Hobbes composed A Dialogue between a Philosopher and a Student of the Common Laws of England in which he set out his final thoughts on fundamental matters of law, legislation and sovereignty. This work was published for the first time in 1681, two years after the author's death, and though it represents Hobbes's final thoughts on these questions it has received but slight study compared with his other works. Leviathan and other earlier works must, no doubt, take first place in interest for the political scientist. The Dialogue, on the other hand, is a work of a jurisprudential slant and is as deserving of the attention of lawyers as it has been largely neglected by them. To this neglect there is one important exception. Sir Matthew Hale rejoined in argument to Hobbes's thesis. His argument remained unpublished till modern times, and even the enormous modern literature on Hobbes's writings has generally preserved a silence upon Hale's Reflections. One modern author indeed remarks briefly that “Hale's short treatise is the most brilliant contemporary reply to Hobbes's theory of positive law,” but the remark is not developed. The prevalent opinion may be represented by Holdsworth's view, and this supposes that Hale failed to grasp Hobbes's idea of sovereignty and that Hale's criticism therefore missed its mark. It seems timely to re-examine the received opinion (if Holdsworth's may be so called) for more than one reason.

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Research Article
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The Cambridge Law Journal , Volume 31 , Issue 1: Jubilee Issue , April 1972 , pp. 121 - 156
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Copyright © Cambridge Law Journal and Contributors 1972

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References

1 Reflections by the Lord Cheife Justice Hale on Mr. Hobbes his Dialogue of the Lawe. Printed from Harl, B.M.. 711, ff. 418–439,Google Scholar by Sir Frederick Pollock in (1921) 37 L.Q.R. 274, and reprinted as Appendix III in Holdsworth's History of English Law, V. 499–513. Any future edition of this tract should take account of the drafts in B.M. MS.Harg. 96. Hale died in 1676 and therefore read Hobbes's Dialogue in unpublished manuscript form.

2 Mintz, Samuel, The Hunting of Leviathan (1962), p. 49.Google Scholar

3 Holdsworth's discussion is in H.E.L., v, 482–485, and vi, 204–207, 258–262, 294–301, and (biographical of Hale) 574–595. The current assessment of Hale is marked by a note of uncertainty, e.g., Elton, G. R. in Modern Historians on British History (1970) at pp. 174–175,Google Scholar commenting that Sir Gerald Hurst's article in (1954) 70 L.Q.R. 342 “somewhat depreciates the long over-valued Matthew Hale.”

4 This reversal of the old view of Hobbes as an isolated thinker was accomplished at one blow by Quentin Skinner's paper “The Ideological Context of Hobbes's Political Thought” (1966) IXGoogle ScholarHistorical Journal, 286–317.

5 Macpherson's, C. B. edition of Leviathan (Pelican Classics, 1968), introduction, p. 24.Google Scholar All subsequent references to the text of Leviathan are to this edition.

6 The text is edited with an introduction by Prof. Joseph Cropsey (University of Chicago, 1971). All subsequent references to the text of the Dialogue are to this edition. The editor concludes that Hobbes wrote the work between 1662 and 1675. The earlier terminus is firmly established by internal references to post-Restoration legislation (e.g., the Act of Oblivion and Indemnity). The editor's terminus ad quem is based on some elaborate detective work in Hobbesian bibliography. Hale's rejoinder provides additional confirmation, for Hale died on Christmas Day 1676.

7 The principal treatise is mentioned briefly in H.E.L., vi, 589: “Preparatory Notes touching the Rights of the Crown.” The autograph is Lincoln's Inn MS.Misc. 48. An expanded version of the earlier chapters is a work entitled Prerogativa Regis of which the autograph is Lincoln's Inn MS. Harg. 1. There is a complex manuscript background to these works which need not be discussed here except to say that Prerogativa Regis represents a third but unfinished rescension of his treatise. These MSS. were written before the Restoration but after 1641. Hereafter I refer to them as Rights of the Crown andPrerogativa Regis respectively.

8 John Aubrey wrote a Life of Hobbes immediately after Hobbes's death. Aubrey had encouraged Hobbes to turn his talents to jurisprudence, lending him a copy of Bacon's Elements of the Law. “I desponded that he should make any attempt (tentamen) towards his designe. But afterwards, it seems, in the country, he writt his treatise ‘De Legibus’ (unprinted) of which Sir J. Vaughan, Ld. Cheife Justice of the Common Pleas, had a transcript, and I doe affirm that he much admired it.” This treatise is practically certainly to be identified with the Dialogue; Vaughan died in 1674, which brings forward the terminus ad quem, above n. 6.

9 Plucknett's epithets, Concise History, p. 62.

10 English Works of Thomas Hobbes, ed. by Molesworth, VI, p. 161 et seq., hereafter cited as E.W. There has been no edition of this work since 1840.

11 Dialogue, intro. p. 14.

12 Dialogue, intro. p. 14.

13 Dialogue, intro. p. 12.

14 This is not to say that Hobbes was uninfluenced when writing Leviathan and other works by the opinions of Bacon. E.g., the second Aphorism in book 8 of De Augmentis Scientiarum (Ellis & Spedding, I, 803, V, 88) on the basis of civil society is very much Hobbes's doctrine.

15 Dialogue, p. 71.

16 Dialogue, p. 69.

17 The antithesis is of course as old as discussion about the nature of law. In 1345 it was argued that judges should do as other judges, otherwise the law could not be known. Hilary J.: “Law is the Will of the Justices.” Stonor J.: “No, Law is that which is right.” Y.B. 18 and 19 Edw. III, R.S. 376. Maitland commented in a letter to Leslie Stephen, “I rather fancy that Hobbes's political feat consisted in giving a new twist to some well-worn theories of the juristic order and then inventing a psychology which would justify that twist” Letters (ed. Fifoot), no. 303, p. 304.

18 Co.Litt. 319b, where it appears characteristically dressed up as a Latin maxim and in annotation to a highly technical passage about the difference in applying the rule in Shelley's Case to freehold and leasehold limitations of gift.

19 Dialogue, p. 55.

20 Co.Litt. 97b. See also Co.Litt. 232b.

21 J. U. Lewis, “Sir Edward Coke: his Theory of ‘Artificial Reason’ as a Context for Modern Basic Legal Theory” (1968) 84 L.Q.R. 330 at p. 339.

22 “Every custom supposes a law, and if it be not irrational, and entertains no contradictions, it is good,” per Vaughan C.J., Collsherd v. Jackson (1672) Freem.K.B. 63 at p. 64. And Littleton (s. 80), writing of manorial customs, applies the same test: “et tout ce que n'est pas encounter reason poit bien estre admitte et allow.”

23 Hill, C., Intellectual Origins of the English Revolution, pp. 250–254Google Scholar, gathers together many of Coke's pronouncements in convenient summary.

24 Reflections, p. 505.

25 Hill, op. cit., p. 254.

26 Hill, op. cit., p. 254.

27 Reflections, p. 502. For an extended discussion of Hale's method of analysis and particularly his theory of knowledge in the context of contemporary scientific thought, see Shapiro, Barbara J., “Law and Science in Seventeen-Century England” (1969) 21 Standford L.R. 727.Google Scholar

28 Reflections, p. 503.

29 With the caveat that Bentham did not subscribe to Hobbesian doctrines of sovereignty but accepted the possibility of limited or divided sovereignty on grounds of a limited disposition to obey. See Hart, H. L. A., “Bentham on Sovereignty” (1967)Google ScholarIrish Jurist, Vol. 2 (N.S.) p. 327, and his comments at pp. 334–335 on the faulty correlation.

30 Pocock, J. G. A., The Ancient Constitution and the Feudal Law, p. 173.Google Scholar

31 What was the required proof of immemorial usage was worked out in medieval public law principally through franchises (see D. W. Sutherland, Quo Warranto Proceedings in the Reign of Edward I, Chap. IV) and in medieval private law through copyhold (see Gray, C. M., Copyhold, Equity and Common Law, pp. 199–201).Google Scholar There was a conflict between the idea of immemoriality as depending on living memory, i.e., the local jury, or on a rule of law, a “legal” memory back to 1189.

32 The inability to point to temporal acts of creation led some lawyers to ascribe even earlier origins to the common law. “Comen ley ad estre puis le creacion del monde,” says a yearbook lawyer in 1470. Y.B. Pasch. 10 Edw. 4, SS. vol. 47, p. 38. And this was no verbal flourish in argument, for Fortescue in the same age could write (De Laudibus, Chap. XVII) that English law was the best in the world because it was the most ancient, older than the laws of Rome and Venice.

33 Thus in his introduction to 2 Rep. pp. vii-viii he echoes Fortescue and writes,“If the ancient laws of this noble island had not excelled all others it could not be but some of the several conquerors and governors thereof, that is to say, the Romans, Saxons, Danes or Normans, and specially the Romans … would have altered or changed the same.” In the introduction to 6 Rep. he reiterates and elaborates on this.

34 8 Rep., intro., p. iv.

35 3 Rep., intro., p. xxxiii.

36 Hill, op. cit., p. 257.

37 Hale, The History of the Common Law of England (4th ed.), p. 60. A reprint of the third edition has recently appeared (Univ. of Chicago, 1971) with an Introduction by C. M. Gray, which discusses Hale's legal and historical thought, especially p. xxxii et seq. in relation to Hobbes's views. This discussion has come to my attention too late to permit more than this reference.

38 Hale, op. cit., p. 64.

39 Hale, History of the Common Law, p. 59. The figure is taken from Da vies' report of The Case of Tanistry (1608) at p. 32, where it is said that “le commencement del custome (car chescun custome ad un commencement coment que le memorie del home ne extend a ceo; come le river Nilus ad un fountaine, coment que les geographers ne poent trover ceo) doet estre reasonable ground & cause.”

40 Hale, History of the Common Law, p. 68, links together “the common law and custom of the realm” as “the great substratum.” He also thought that some parts of the common law might have originated in legislation now lost and forgotten, but he would not have agreed with the extravagant thesis of Wilmot C.J. (Collin v. Blantern (1767) 2 Wilson K.B. at p. 348) that “th e common law is nothing else but statutes worn out by time; all our law began by consent of the legislature, and whether it is now law by usage or writing, it is the same thing.…”

41 Hale, History of the Common Law, p. 25.

42 Considerations touching the Amendment or Alteration of Lowes, cap. iv. Hargrave's Law Tracts 249 at p. 272.

43 For Hale's activities as law reformer, see Mary Cotterell, “Interregnum Law Reform: the Hale Commission of 1652” (1968) Eng.Hist.Rev., Vol. lxxxiii, 689. For Hale's reasons for the failure of the reform movement, Considerations, supra, n. 42, at pp. 274–275, and more generally Donald Veall, The Popular Movement for Law Reform 1640–1660, pp. 228–235.

44 Rolle's Abridgment (1668), introduction pp. iii-iv.

45 A dark saying but relatable to this passage in his tract on law reform (supra, n. 42) at p. 258, writing of “such alterations, as do not so much constitute a new law, as amend the old; so that it still morally continues the same law, notwithstanding these appendications, as the Argonauts' ship was the same ship at the end of their voyage as it was at the beginning, though there remained little of the old materials but the chine and ribs of it.”

46 Pocock, op. cit., p. 178.

47 Published in 1615. A selection of Irish cases litigated while the reporter was Attorney-General there.

48 It is for this reason that Davies thought customary law better than legislative acts “which are imposed upon the subject before any Trial or Probation made, whether the same be fit and agreeable to the nature and disposition of the people, or whether they will breed any inconvenience or no.”

49 (1608) Davies 28. A clear summary of the case is given by F. H. Newark in (1952) 9 Northern Ireland Legal Quarterly 215.

50 Davies 34: “Car le antient Breton ley fuit que tiel terre irroit al plus eigne del sept que fuit le veray tanist & appel en Latine secundus, esteant successor apparant mes pur ceo que le pluis eigne ne fuit touts foits le plus active, ou ne avoit le greinder number des followers, un auter plus powerfull person per faction & fort main intrudoit sur le pluis eigne, & procuroit luy mesme destre elect, come esteant pluis digne.” The testing of custom by reference to oppression by the stronger of the weaker was of course familiar to English lawyers in the context of manorial custom. The cases from the Y.BB. onwards are set out in Alien, C. K., Law in the Making, 7th ed. (1964), Appendix at pp. 614–632.Google Scholar

51 Davies, 40.

52 This treatment of gavelkind was not a novelty in the common law tradition, e.g., in Y.B. (Mich.) 14 Hen. 4 f. 2, pi. 6, at f. 7a, per Hankford J. with regard to unity of possession where the lord acquires the tenant's gavelkind land by purchase or escheat. This and other customs, he said, belonged to places where William the Conqueror had confirmed their ancient customs and laws, and therefore they must be allowed as valid. 53 Davies 40.

54 But the two events had this similarity, from the view point of 1608, they neither of them effected per se confiscation of land by the conqueror. Queen Elizabeth was not in possession of these Irish lands by virtue of the first conquest, nor was William of English lands. “Car revera le Norman Conquerour, coment que il fesoit plus absolute a entire Conquest Dengleterre que Henr. 2 fesoit de Ireland, uncore il ne seisist tout, ne avoit le actual possession de touts des terres deins le realme Dengleterre vest en luy per le Conquest…” True, Bodin and Choppinus had asserted otherwise, “mes nostre record de domesday est, en cest point, de melieur credit que touts les forrein discourses ou chronicles de mounde.” Davies 41. The matter had not gone undiscussed in the fifteenth century-E.g., on a Reading on Merton, c. 4 (Sel.Soc. vol. 71, p. civ): “Sur cest estatut fuit move que quant William Conquerrour ust conquerre cell terre per le conquest tout la terre fuit en son mayn donquez apres il done a sez homez queux fueront ove luy en son viage divers maners ove certein seigniores…”

55 Coke's explanation in the introduction to 9 Rep. is an excellent example of his method. He argues that as the Saxon monarchs held deliberative assemblies, so they must have included representatives of the commons. Why? Because Domesday shows there were tenants in ancient demesne of the Crown before the Conquest. The earliest information we have shows that they were exempt from the parliamentary duties imposed on other freeholders, “therefore there were Parliaments unto which the Knights and Burgesses were summoned both before and in the reign of the Conqueror.”

56 Pocock, op. cit., p. 53.

57 The principal printed source is the earlier part of his History of the Common Law. The argument is also fully set out in Chap. II of the Prerogativa Regis.

58 Coll. Papers, vol. 2, p. 5: “Unfortunately he was induced to spend his strength upon problems which in his day could not permanently be solved, such as the relation of English to Norman law, and the vexed question of the Scottish homage…”

59 H.E.L., vi, 586 “a purely academic discussion—the question in what sense, if at all, William I could be said to be a conqueror.”

60 Pocock, op. cit., p. 180.

61 Supra, n. 16. Dialogue, p. 160, also draws the conclusion of complete confiscation of land by the Conqueror, in contrast with the inference of the theory of the common lawyers, supra, n. 54.

62 The one qualification Hobbes allowed was that the need for self-preservation could justify resistance to the sovereign.

63 p. 72.

64 As Clarendon pointed out Hobbes's doctrine allowed the sovereign's subjects to abandon him at the very time he needed their assistance.A Brief View and Survey of … Leviathan (1676) p. 90.

65 E.W. VI, 418. In Leviathan (p. 375) the limits of obligation are clearly expressed. The subject while protected by his sovereign “is obliged, without fraudulent pretence of having submitted himself out of fear, to protect his protector so long as he is able,” but when “there is no further protection of subjects in their loyalty, then is the commonwealth DISSOLVED, and every man at liberty to protect himself by such courses as his own discretion shall suggest unto him.”

66 As Hart (Concept of Law, p. 65) points out with regard to the theory of illimitability “the legally unlimited power of the sovereign is his by definition: the theory simply asserts that there could only be legal limits on legislative power if the legislator were under the orders of another legislator whom he habitually obeyed; and in that case he would no longer be sovereign.” The theory therefore is not that there are no limits, only that there are no legal limits on sovereign power. The author concludes his chapter on Sovereignty with the opinion “there is no absurdity in the notion of a hereditary monarch … enjoying limited legislative powers which are both limited and supreme within the system.” This is a very exact way of summarising the common law theory as held by Hale and discussed below.

67 It may be argued, as does Wade, H. W. R. in “The Basis of Legal Sovereignty” [1955] C.L.J. 172Google Scholar, that obedience to a sovereign is ultimately a political fact and that the political reality imposes the constitutional relationship between Parliament and the courts, but against that it has urged that “it is indeed difficult to maintain the position that the existence of a sovereign authority does not involve the statement of a rule but only a statement about the behaviour of courts,” Geoffrey Marshall, Parliamentary Sovereignty and the Commonwealth, pp. 43–46, discussing Professor Wade's argument. See further, for more recent comment by Mr. Marshall, Constitutional Theory (1971), Chap. 3, “Legislative Power and Sovereignty,” pp. 35 et seq.

68 Part II, Chap, xxvi, pp. 315–316.

69 Oakeshott in his introduction of the Blackwell edition of Leviathan (1946), p. xxxix, n. 3:Google Scholar “Hobbes dismisses all mixed forms of sovereign authority, but he considered the sovereign in England was Rex in parlamento.”

70 p. 316.

71 This last sentence poses very great difficulties because Hobbes seems to be saying that a kingless Parliament cannot acquire a legislative power even if sovereign. The sense can be made to square with Hobbes's definition of sovereignty by amending the opening words “And where a Parlament is [not] Soveraign…”

72 The sense is achieved in this line by deleting a negative in the penultimate sentence.” And if there be such right, then the Controuler … is not Parlamentum but Rex …” The textual amendments in this and the previous note are not warranted by any edition of the text. Hobbes may have written the words as printed; if so, they must be accounted slips of the pen.

73 Maitland was very conscious of this difficulty and in his Constitutional History, p. 298, writing of the seventeenth century, enjoins us to “consider how very much that assembly depends for its constitution, for its very existence on the king's will,” and asks “after all, is not this body but an emanation of the kingly power?” It was this question that mainly worried Austin in the nineteenth century and he attempted to solve the difficulty by vesting sovereignty in the king, the Lords and the Electors of the House of Commons. This solution has been repeated with the refinement that Austin has described a “political” sovereign, though the “legal ” sovereign must be the king in Parliament (Dicey, Law of the Constitution, 9th ed., pp. 72–76). But the sovereignty of Hobbe s and Austin is not divisible between an electorate and a representative assembly, and the refinement is a desperate device to avoid deciding the basic natur e of sovereignty. This problem of “continuity ” is most profoundly handled in Hart's Concept of Law, Chap. 4.

74 Dialogue, pp. 67–68.

75 Maitland, writing to Leslie Stephen (Letters, ed. Fifoot, no. 368, p. 369), raised this question without answering it. “I have been speculating as to what T.H. would have said had he lived until 1688. If it becomes clear that your ‘sove-reign’ is going to acknowledge the pope's claims, this of course is n o breach of any contract between ruler and ruled (for there is n o such contract), but is there not an abdication? Putting theory out of the question, which would the old gentleman have disliked most, Revolution against Leviathan or a Leviathan with the Roman fisherman's hook in his nose?”

76 Dialogue, p. 71.

77 Leviathan, pp. 318–319.

78 p. 162.

79 Leviathan, p. 230. “The Author, or Legislator, is supposed in every Common-wealth to be evident, because he is the sovereign, who having been constituted by the consent of everyone, is supposed by everyone to be sufficiently known.”

80 Leviathan, p. 320.

81 Leviathan, p. 320.

82 Dialogue, p. 71.

83 It follows that for Hobbes the antecedent way in which the sovereign will was formed had nothing to do with the validity of command. English judges have generally taken the same view of this matter. In 1653 John Streater was imprisoned by the Long Parliament for publishing seditious pamphlets and objected that he was imprisoned by virtue of an order of Parliament which lacked the authority of a regularly enacted statute. The judges of the Upper Bench, including Rolle C.J., dismissed his objection, Nichols J. saying: “Now what the parliament does, we cannot dispute or judge of: their laws are to bind all people; and we are to believe they had cause for what they did. And for that you say an Order should be read three times: when I was a Parliament Man, divers acts passed with one reading. In the next place you did distinguish between an order and an Act of Parliament. Why, their power is a law, and we cannot dispute any such thing.” (5 State Trials 365 at p. 387). This was the command of an unicameral legislature, but the command of one chamber of a bicameral legislature raises a different question, and later lawyers had no difficulty in asserting that a resolution or order of one chamber could not be allowed the force of law, any more than the commands of both chambers could acquire legislative force without the king's assent.

84 pp. 76–77.

85 Rights of the Crown, Chap. 11.

86 Cf. Hobbes's explanation of the continued existence of customary law as being a tacit command by the sovereign.

87 Cf. in his History of the Common Law, at pp. 67–68.

88 As Chief Justice he had occasion to refute judicially the third proposition. Colledge of Phisitians v. Cooper (1675) 3 Keble 587, a judgment wretchedly reported but containing very valuable information on the courts' requirement for proof of a statute. Coke's opinion was that an omission to record the assent of one of the houses prevented the court from accepting a faultily expressed enactment as an Act of Parliament: the Prince's Case, 8 Co.Rep. at 20b. But this opinion has not been unchallenged. Hale thought that the record of the King's assent was essential to the body of an Act, but that the assent of the Lords and Commons was sufficiently implied in the royal assent.

89 The chapter continues with detailed discussion of proclamations, medieval petitions and other legislative material.

90 Prerogativa Regis, Chap. 14.

91 The Anarchy of a Limited or Mixed Monarchy (1648) Laslett's ed. of Patriacha, and other Works, p. 277.

92 The modern work is Gough's, J. W.Fundamental Law in English History (1955).Google Scholar

93 Chap. 26, p. 334.

94 In Behemoth (E.W., vi, pp. 248–249) he writes: “I understand not how one law can be more fundamental than another, except only that law of nature that binds us all to obey him, whosoever he be, whom lawfully and for our own safety, we have promised to obey; nor any other fundamental law to a King but salus populi, the safety and well-being of his people.”

95 Sir Edward Nicholas to the Earl of Rochester, 7 April 1654, Nicholas Papers (Camden Soc., 1892), ii.64. It may be acknowledged that Hale himself took the Engagement of loyalty to the republican Commonwealth in 1649 and accepted judicial appointment in January 1654 (this latter fact did not escape the notice of the Rhodesian judges in 1968, vide infra, p. 153, n. 25). It is enough to say that Hale never conceded that his acceptance of a Cromwellian appointment carried an implication that he considered Cromwell entitled de jure. In so acting on the advice of royalist friends he justified himself on the ground that the ordinary civil and criminal law must continue to be administered “for the public necessity of the kingdom”. But it is less easy to reconcile his subscription to the Engagement with his opinions on the inherently monarchical nature of the English constitution.

96 On this question Bacon was in the common law tradition and Hobbes's definition of fundamental law did not owe anything to Bacon. See Aphorism 3 in book 8 of De Augmentis (Ellis & Spedding I, 804): “Magistratum autem auctoritas pendet ex majestate imperil et fabrica politiae et legibus fundamentalibus.”

97 H.E.L., vi, pp. 206–207.

98 Sir Thomas Smith, De Republica Anglorum (1583) asserts the “absolute” power of Parliaments, but Smith's work is more valuable as a description than as an analysis of sovereign powers. Alston in his edition of 1906 (pp. xli-xliii) discusses the relationship between Smith and Jean Bodin. Bodin's De Republica, perhaps the most influential theoretical work of the late sixteenth century, contains a strong attack on Smith's vague views on the doctrine of sovereignty. Bodin refused to recognise mixed forms of polities and attributed sovereignty in the English polity to the monarch alone. For the English reception of Bodin's theory, see Mosse, G. L., “The Influence of Jean Bodin's Republique on English Political Thought,” Medievalia et Humanistica (1948) v, pp. 73–83.Google Scholar

99 The conclusion that Holdsworth was mistaken is fortified by the opinion of Mcllwain, C. H. in his paper on “Whig Sovereignty and Real Sovereignty,” in Constitutionalism and the Changing World (1939), pp. 61–85.Google Scholar

1 Most fully discussed in H. D. Hazeltine's General Preface pp. xxx–x1, to Chrimes', S. B. ed. of De Laudibus Legum Anglie (1949).Google Scholar

2 Fortescue had allowed the Pope a part in the making of English law. See Mosse, G. L. “Sir John Fortescue and the problem of papal power,” Medievalia et Humanistica (1952) vii, pp. 89–94.Google Scholar

3 Christopher St. German wrote a number of pamphlets in defence of Royal Supremacy, 1533–35 (S.T.C. 21559–21588), advocating parliamentary control over the extended authority of the King, but significantly the exact relation between the Crown and Parliament is not fully explored. Modern discussions are J. J. Scarisbrick, Henry VIII, Chap. 12, on Royal Supremacy, esp. at pp. 508–515, and his comments on G. R. Elton's article “The Political Creed of Thomas Cromwell” T.R.H.S., 5th ser., vi (1956), p. 69, reprinted in Historical Studies of the English Parliament (1970) vol. 2, p. 193,Google Scholar where Thomas Cromwell is discussed as a constitutionalist of the Marsilian School and a protagonist of the true political and legislative sovereignty of “the modern mixed sovereign, the King in Parliament, created by the deliberate infusion of the modern principle of sovereignty into those two great achievements of the middle ages—the assembly of king, lords and commons, and the common law of the realm.”

4 One of the best (though little quoted) discussions is William Dunham's “Regal Power and the Rule of Law: a Tudor Paradox,” Journal of British Studies iii (May 1964) pp. 24–56.Google Scholar

5 H.E.L., vi., pp. 84–85. State Trials attributes the speech to Yelverton, but see Prothero, Statutes and Constitutional Documents, 1558–1625, pp. 351–353.

6 Whitelocke did not enlarge on this remark. He does not seem to contemplate the enactment of irrepealable legislation; on the contrary the more plausible interpretation is that the sovereign's laws are inherently repealable or alterable by the sovereign.

7 In the printed versions “grounds” for which the substitution is offered.

8 The Jurisdiction of the Lords' House of Parliament (ed. Hargrave, 1796) at pp. 206–207.Google Scholar

9 Op. cit., p. 205.

10 The present Lord Chancellor (extra-judicially, on adhering to the Treaty of Rome, The Times, 14 July 1971):Google Scholar “Like domicile or sex, sovereignty is a question of fact.” Or if an extra-judicial utterance is not sufficient evidence of current judicial philosophy, vide per Lord Denning M.R. affirming as true the view of Professor Wade, H. W. R. in [1954–55]Google Scholar C.L.J. at p. 196, that “sovereignty is a political fact for which no purely legal authority can be constituted” ( Blackburn v. Att.-Gen. [1971] 1 W.L.R. 1037 at p. 1040Google Scholar ).

11 See especially from the extensive literature, Dias, R. W. M., “Legal Politics: Norms behind the Grundnorm” (1968) 26Google Scholar C.L.J. 233, and the most recent discussion, Harris, J. W., “When and Why does the Grundnorm change?” (1971) 29Google Scholar C.L.J. 103. The general attempt has been to reconcile Kelsen's positivist theory with a denial of validity to the new legal order in Rhodesia. The latter article argues that such attempts have failed. There can be no doubt where Hobbes would have placed Rhodesian sovereignty today.

12 How Hobbes and other political writers of the Interregnum debated the question has now been discussed by Quentin Skinner, Conquest and Obligation: Thomas Hobbes and the Engagement Controversy, in The Interregnum, ed. Aylmer, G. E. (1972).Google Scholar

13 Reflections, pp. 507–508. And more fully in Prerogativa Regis, Chap. 11.

14 The reference is not to parliamentary acts of the sovereign, but to the numerous rules of law which voided the King's acts if not carried out in due form, e.g., alienation of royal lands without the use of the Great Seal and so forth.

15 In placing this power first, Hale probably did not intend to imply its primacy, but other lawyers did ascribe that status to this prerogative. E.g., Lord Nottingham in a parliamentary speech in 1678 (Sel.Soc. 79, p. 993) asserts “the right of making war and peace is so much the king's that in all kingdoms and states in the world this and this only is the true and essential mark where the sovereignty rests.”

16 Hobbes himself saw the shift of sovereignty in the rebellion against Charles I in the seizure of military power, for in his view “the legislative power, and indeed all power possible, is contained in the power of the militia.” (Behemoth, E.W., vi, p. 290).

17 This particular conclusion, that some element of regality survived deposition, caused Hale a severe and extended rebuke from Sir Michael Foster in his Fourth Discourse upon Crown Law, because Hale's opinion as published in the Historia Placitorum Coronae in 1736 naturally could be referred to the effect of the deposition of James ll. Mr. Peter Glazebrook has recovered further unpublished passages on de facto kings in the Hist. Plac. Coronae from Hale's autograph and the transcript from which the printed work was published. These form an appendix to his edition of a new reprint of the Historia.

18 Examples of voided acts were grants of land and offices. Acts of resumption when enacted were therefore “to prevent the danger by provisoes and exceptions for those of the King's friends rather than otherwise.”

19 Pardons to criminals and presentations of clergymen were examples.

20 The problem of two competing de facto exercisers of regality is further explored by Hale in the recovered passages from the manuscript of Historia Placitorum Coronae, supra, n. 17. Accordingly Jane was not even a de facto queen in 1553 because she never gained undisputed control over the kingdom.

21 Since there is no question of inheritance, for the rightful prince is not heir to the usurper, Hale takes the principle of succession from the usurper as a corporation sole. This rule of acquiring benefits but not burdens by succession to the wrongful occupant of a corporation sole had been worked out originally in connection with ecclesiastical corporations sole, e.g., abbacies.

22 In 1660 the whole legislation of the Interregnum was considered as no longer in force, but this was on the theory that no Act which had not received the assent of Charles I or Charles II could be considered an Act of Parliament, and there was no attempt to treat as illegal ordinary acts of government executed under the authority of that legislation.

23 Acts of ratification, such as 4 Edw. 4, c. 1, were therefore not acts of necessity but merely in abundantiorem cautelam. If the usurpation was not complete or the usurper was not in effective control, Hale was of the opinion that “there an Act of Parliament might be of necessity to confirm the transactions judicial in the time and place of such usurpation, and cites 1 Mar. c. 4, which “though as to bonds and indentures dated in the year of Queen Jane was needless, yet possibly, it might be of some use as to statutes and recognizances.”

24 Hale's analogies at this point are instructive. “A disseisor of lands may assign dower to one that is lawfully entitled thereunto and it shall bind the disseisee after his re-entry. A disseisor of a copyhold manor may make admittances. A disseisor of a manor to which there is a leet appendant may hold his court baron or leet, and determine plaints and take presentments as to matters determinable by those jurisdictions, and such judgments are effectual.”

25 Honoré, A. M., “Allegiance and the Usurper” [1967] C.L.J. 214Google Scholar. The judgment of the Appellate Division of the Rhodesia High Court in Madzimbamuto v. Lardner-Burke, 1968Google Scholar (2) S.A. 284 is largely an exegesis on the Act of 1495.

26 Honoré at p. 220 argues that “the promise of immunity might actually help Henry recover the throne from a future Richard IV because moderate men who had not rebelled in the first place would know that their support for Richard in the interim period would cost them nothing provided they returned to their first allegiance.” But Henry's promise as construed by Honore does not stop at “moderate men. ” It includes all those who for the first time join the usurper after he has gained possession and then fight to the last stroke to repel Henry's regress; it excludes only those who helped to turn Henry out.

27 Henry may well have recalled that on his own accession in 1485 he had found it necessary on the advice of the judges to secure the reversal of the attainders on his own supporters before it was possible for them to assist in the measures of his first Parliament, which included the parliamentary confirmation of his own title to the Crown. See Bacon, infra, n. 29, pp. 37–38.

28 See also the proximate Act of 11 Hen. 7, c. 18; cf. 19 Hen. 7, c. 1.

29 As does Reeves, History of English Law, vi, p. 132, and Bacon in his History of the Reign of Henry VII, Ellis & Spedding, vi, pp. 159–160, writing, it may be noticed, from the standpoint of historians. The de facto interpretation, on the other hand, occurs in works which are expositions of law. The most cogent argument based on the phrase “king for the time being” is Thomas Carte's in his General History (1750), Vol. 2, pp. 847–848, contrasting the implied legitimacy of title with the use of de facto descriptions. But he admits that Henry in encouraging his supporters followed “his own way, ever dark, double and mysterious.”

30 Hale, Historia Placitorum Coronae, i, p. 273, observes “this act extendeth to a king de facto, though not de jure, for such in truth was Henry VII.” This amounts to saying that Henry did not regard himself as a king de jure and that he passed the Act to protect his supporters as adherents to a de facto king. Historically considered, this is of course absurd.

31 This was no new way of considering the question; see the case of Bagot's Assize, Y.B. Pasch. 9 Edw. IV, f. 1b, pl. 2. The case is discussed at length in an editorial note to the Historia Placitorum Coronae, p. 101, n. (f). But Hale in the Prerogativa Regis was the first to apply the idea generally to constitutional theory and to deduce in detail its implications.