27 Edw. I. de finibus levatis. Sir Edward Coke, Ch. Just. C.P. 4 Jac. I. and Ch. Just. K.B. 11 Jac. I. 17 Edw. II. Prerogativa Regis.1 Sir Thomas Frowike, Ch. Just. C.B. 19 Hen. VII. 25 Edw. III. c. 2. 27 Edw. III. c. 17. On Treasons. Robert Holbourne. Merchant Strangers.2 By Sir Edward Littleton, Lord Ch. Just. C.P. 15 Car. I., Lord Keeper 16 Car. I. I Ric. II. c. 9. Parnor de Profits. Justice Martin.3 Just. C.P. 2 Hen. VI. 13 Ric. II. Jurisdiction of the Admiralty. Sir Leoline Jenkins, Judge of the Court of Admiralty, temp. Car. II. 8 Hen. VI. c. 9. Forcible Entries. Thomas Risden, Reader of the Inner Temple, 12 Eliz. Another of the same name, 10 Jac. I. 4 Hen. VII. On Fines, 15 Readings,* John Denshall, Serjeant at Law, 23 Hen. VIII. 4 Hen. VII. c. 17. On Aids, 11 Readings. By Thomas Audley,5 who succeeded Sir Thomas More as Lord Chancellor, 24 Hen. VIII. 21 H. VIII. c. 13. De facultatibus beneficior. Reading at Middle Temple, 2 Aug. 1619. Sir James Whitlock, Justice of King's Bench, 22 Jac. I. and Chief Justice of Chester. 21 H. [VIII.] c. 19. Of Avowries. By Thomas Risden, Reader of the Inner Temple, 12 Eliz. 23 H. VIII. c. 5. Of Sewers. John Herne. 27 H. VIII. c. 10. Of Uses. By Sir Francis Bacon, Sol. Gen. 5 Jac., 27 H. VIII. c. 10. 28 H. VIII. c. 2 32 H. VIII. c. 5. 32 H. VIII. c. I. 34, 35 H. VIII. Temple. 34, 35 H. VIII. 35 H. VIII. c. 6. 5 Eliz. I3 Eliz. C. 7. 43 Eliz. c. 4. By Robert Brooke." Sir James Dyer, Middle On Trial by Jury. Sir Thomas Williams, Speaker H.C. On Bankrupts. John Stone, Serjeant at Law, 16 Car. I. Charitable Uses. Sir Francis Moore, 4 Jac. I. Mid. Temp. 3 Car. I. Petition of Right. William Prynne." Besides those above enumerated on particular statutes, the following are written on general subjects : 1 Br. Abr. Apporcionment 28; Garde 120; Idiot 6; Notice 27; Office devant eschetor 60; Petition 41; Testmoignes 30; Travers d'Office 54; Villenage 71; also extant Harl. MSS. n. 1691. 2 Not printed, quoted by Lord Chief Baron Parker in the case of Omychund v. Barker, 1 Atk. 42. See also I Salk. 46. 3 Not printed, V. Br. Abr. Feoffment de terre 19; Parnor 4. 4 V. Cat. MSS. Ang. v. II. n. 1947. The printed copies contain only six readings. 5 Mentioned in the author's life in Biogr. Britan. and in Fuller's Worthies. A copy of them is among Mr. Hargrave's MSS. "Not printed, quoted in Jacob's Dict. tit. Monkery; mentioned in Append. to Hearne's Curious Discourses and Woods Athen. 490, extant in Ashmol. Mus. Oxf. Catal. MSS. Ang. v. I. n. 7858. A copy of this reading is also among Mr. Hargrave's MSS. and another in the possession of the compiler hereof. 7 There are also extant Harl. MSS. n. 1692, Brooke's Readings, A.D. 1614, on 43 Eliz. c. 8. Q. if by Sir Rob. Brooke. 8 Not printed, quoted in Dyer 218b. 9 Not printed, extant among Mr. Petyt's MSS. in Inner Temple Library, and among Mr. Hargrave's MSS. Reading on Copyholds, Charles Calthrope. Case and Arguments against Sir Ignoramus at Cambridge, in a reading at Staple Inn, by Robert Callis, Serjeant at Law. Neither of the following appear to be extant in print, but are found frequently quoted in the law-books, without mention of the particular statute of which they respectively treat. I Aldsworth's reading. Lincoln's Inn Lect. 38 Eliz.2 2 Archer's reading on the laws of the forest. 3 Chiborne's reading, anno. I Hen. VIII. * 4 Cock's reading." 5 Fitzjames's (Sir John) reading." 4 6 Gwin's reading. Richard Gwyn, Reader, Inner Temple, 4 Jac.7 7 Harrison's reading, at Lincoln's Inn, Lent 1632.8 8 Herbert's reading. The author was reader at the Inner Temple 12 Car. I.o 9 Philips's reading.10 Q. Francis Philips, reader of the Inner Temple, 13 Car. II. 10 Reading, temp. Hen. VII. concerning the Office of Coroner.1 II Reading, temp. Hen. VII. by W. N.12 12 Reading on Quo Warranto.13 13 Reading (S).14 14 Thatcher's reading, 15 Hen. VII.15 11 15 Whorhod's reading, 35 Hen. VI. Q. William Whorwood, Solicitor Gen. 27 Hen. VIII., Attorney Gen. 32 Hen. VIII.16 III SIR MATTHEW HALE'S CRITICISMS ON HOBBES'S There are three versions of this tract-the Harleian MS. 711, ff. 418-439, which is here printed, and two copies of it in the British Museum. Francis Hargrave had a copy of it; and J. B. Williams in his "Memories of the life, character and writings of Sir Matthew Hale," published in 1835, tells us at p. 398 that the original "is stated to be" at Cottles, formerly the seat of the Hale family.17 The original seems now to be lost; but, as Sir F. Pollock says, "Whatever may have now become of the original, it seems quite likely that it was a rough draft, and exhibited a very little better text, if better at 1 Lecturæ Juridicæ Magist. Dodderidge, 1594, extant in Harl. MSS. n. 5053. 2 Dyer 355a. 4 Dalton's Sheriff 386, etc. 3 Quoted in Manwood's Forest Law 4 to 59b. There is also extant, Harl. MSS. 1692, Chibborne's reading, A.D. 1613, on stat. 33 Hen. VIII. 5 Ib. tit. Felonie, Burglarie. 6 Br. Abr. Apporcionment 28; Prerogative le Roi 134. 7 Cowel's Dict. verb Common Pleas-Congé d'elire-Court of Requests-Justices in Eyre-and Cat. Harl. MSS. 813 art. 26, where it is observed of this Reading, "It touches much upon the subjection of the church and clergy to the law of the land in several instances." 8 Quoted in Dyer 200, in Margin and Viner, Baron and Feme, A. 16; Ib. C. 6 in notes. 9 V. 2 Rolls. Abr. 515. 11 Br. Abr. Appell. 62; Ib. Corone 82. 10 Hargr. Co. Lit. 33a. 12 Br. Abr. Corone 181 seq.; Ib. Sanctuarie II. 13 Br. Abr. Quo Warranto 12. 14 Br. Abr. Recognizance 14. 15 Br. Abr. Waste 96; Tr. 15 H. VII. 11, 21. all, than the British Museum copy." As Hale died in 1675, and Hobbes's Dialogue was first printed in 1682, Hale must have seen it in MS. This, however, raises no difficulty; for, as Sir F. Pollock points out, "down to the early part of the eighteenth century, if not even later, it was a common practice to circulate unpublished works among learned persons for their entertainment or criticism ;" and we know that "other works of Hobbes were circulated in this manner.' It may be that failing health was the reason why the tract is incomplete. If it had been completed it would probably have been published long ago.* " 2 3 The Harleian MS. which is here printed, contains three tracts 5 by Sir Matthew Hale "from the original in his own hand." This tract is entitled "Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes his Dialogue of the Lawe." It is, as we have seen, divided into two parts-"In Caput Primum of Laws in Generall and the Law of reason," and "Of Soveraigne Power." In the first part Hale's object is to demonstrate the weakness of a purely analytical and logical criticism of existing laws and political institutions; and in the second part to prove both the inapplicability of Hobbes's doctrine of sovereignty to English institutions, and its political inexpediency. The importance of this tract to historians of English public law, and of English legal and political theory is obvious. It was the question of the whereabouts of the sovereign power in the English state which underlay all the purely constitutional controversies of the seventeenth century. It was the application by Hobbes in his Dialogue of the Common Laws of the new doctrine of sovereignty to the laws of England which resulted in the first comprehensive and reasoned criticism of those laws. In this tract of Hale's we can see how this new theory of sovereignty, and how this criticism of the laws of England, struck the mind of a man of moderate political opinions, who was one of the greatest lawyers of his time, and the only historian of English law who can be put on a level with Maitland. Hobbes, as we all know, was the spiritual father of Austin. It is not surprising therefore that, just as Austin's speculations attracted the criticisms of Maine and the new school of historical lawyers which arose in the second half of the nineteenth century, so Hobbes's speculations attracted the criticisms of one of that band of lawyers and historians, of whose works I have given some account in this volume." REFLECTIONS BY THE LRD. CHEIFE JUSTICE HALE ON MR. HOBBES HIS DIALOGUE OF THE LAWE' In Caput Primum of Laws in Generall and the Law of reason When we speake of reason we are to consider itt under these severall motions." 1. It may be justly taken for that Subjective reason that is in thinges that are to be known or understood, wch consists in the Congruity, Connexion and fitt Dependence of one thing upon another. Such a reason as this may be 1L.Q.R. xxxvii 274. 2 Ibid; note also that it is referred to in the list of his works as a tract "Upon Mr. Hobbes his Manuscript," Burnet, Life of Hale 193. 3 Ibid. 4 It was first printed in 1921, ibid. "The History and Analysis of the Common Law of England; of the Alteration Amendment or Reformation of the Laws of England; and the tract here printed. The first two tracts are well known; they will be described in vol. vi c. 8. 6 Above 402-412. 7 The numbers of the pages of this tract are marked in the body of the text. A space has been left when a word or words are obviously missing. There are no spaces left in the MS. The notes marked F.P. contain suggestions made by Sir Frederick Pollock; the other notes are inserted by myself. 8 Quære "notions."-F.P. found in thinges that are destitute of the faculty of Reason and is or may be antecedent to any Exercise of any humane -2- Reasonble facultie: thus the Connexion of Effects to their Causes, the Consequences of Propertyes to their Formes or Essences, the Exertions of Acts by their Powers, the ordination and disposition of Naturall thinges in their severall places, and Orders: the Connaturall tendencyes and motions of thinges in Nature to their Preservation and Conveniences have a reasonableness that is a Decorum, Congruitie, and Conseqution though they were noe man in the world to take notice of itt. The proportion between Lines and Superficies, and figures, and of their various Coincidences and texture, and the Reasonableness thereof in the Mathematicks would be antecedent to any Operation of a humane understanding uppon them, wch rather findes its Conclusions in them, then makes them. And in Moralls though the objects thereof are more obscure, and not soe open to a distinct and Cleare Discoverie, yett there is a Certaine Reasonableness and Congruitie, and Intrinsick Connexion and Consequence of one thing from an other antecedent to any Artificiall Systeme of Moralls or Institution of Laws. -3- 2. Itt is taken for that Faculty of reasonable Nature whereby itt mooves it Selfe to ye attainment of thinges to be knowne, and then it is called Judgemt, or in thinges to be done, and then itt may be called wisedome, Prudence, or Skill. And although in Some thinges there is that meere vicinitie between this faculty and ye object, that it acts quasi per saltum, as the bodyly Eye sees, yett for ye most part the Exertions of this Faculty is Graduall, Discursive, and att least by an internall Deduceing of one thing from another, or an illation or Inferring of one thing upon another, wch is called Ratiocination. And thus reason as it is a Facultie cōmon to all reasonable Creatures is the Cōmon Engine or Instrumt whereby all kinds of Knowledges or Arts are acquired. It is ye Same Facultie of Reason that Serves the Naturalist, the Phisician, the Lawyer, the Mathematician, the Mechanique, ye Plowman in all their severall waies and prosecutions. But although this Cōmon Facultie be Cōmon to all mankind, yet it is easily observable, that in severall men there are various degrees of Quickness, Activitie and perfection -4- in this reasoning facultie, wch may partly proceed from the various temperamts of their spirritts and humours, or from the various Exercise Employmt and excitation of this reasoning facultie in them. And not only Soe, but it is most evident to any observing man, that very often times the Edge, the Direction, the Apex Rationis [is (sic)] as I may call it in severall men are directed Severall waies. That man's reason that is dextrous and ready in Phisick is not Suited for Politiques, and another mans reason that renders him apt and quick in the Mathematicks doth not Suite to ye Knowledge of Phisique, yea sometimes men that could not give a tollerable acct of ten wordes of Sence [sic] yett straingely dexterous in Mechaniques and Sometimes in Musick. Tully that was an excellent Orator, and a good Moralist, was but an ordinary Statesman and a worse Poett. And tho possibly Some men may be of Soe happy a Reason, that itt may bid faire for any kind of object, yett it is rare, & Cōmonly those that p'tend to an universall Knowledge are but Superficiall and Seldome pierce deepe into any thing. -5- 3rdly Itt is taken complexedly when the reasonable facultie is in Conjunction wth the reasonable Subject, and habituated to it by Use and Exercise, and it is this kind of reason or reason thus taken that Denominates a Man a Mathematician, a Philosopher, a Politician, a Phisician, a Lawyer; yea that renders men excellent in their prticular Acts1as a good Engineer, a good This should probably be "Arts.”—F.P. Watchmaker, a good Smith, a good Surgeon-all wch consists in the application of the Facultie of reason to the particular Subject, the direction of it in a particular Channell and by particular Methods, whence it comes to pass that as the same naturall Motion and tendencie of water, according to ye various applications and directions in one place waters a Meadow, in another place drives a Mill, in another place lifts up a hammer, or caryes a flote, or as the same qualitie of Discent in a weight according to ye variety of its application makes ye Clock to Strike, the Index of the watch to shew ye houre, or ye Jack to turn ye Spitt, Soe the Same Facultie of reason variously applyed and directed -6- renders this man a Mathematician, a Phisician, a Lawyer an Artificer, according as the reasoning Faculty is directed or applied & habituated by use and Exercise to ye severall objects thereof. And upon this Acct it comes to pass that tho' two, or more men of ye Same perfection of the reasoning Facultie that have yett variously Exercised and applyed that Cōmon Facultie to their Severall objects, they are not Equally to Expect an equall aptitude and perfection in each oth's Science or art. If one man habituated and applyed his reason to ye Science of Phisique and another man habituated and applyed his reason in Mathematicall Sciences, this shall not be so good a Phisician as ye other, nor the other, So good a Mathematician as this. And therefore tho' the Mathematican cursorily runns over the Titles of the bookes of Gallen and Hippocrates, or ye Phisician runns over ye titles of the Theorems and Conclusions of Euclid, and Archimides, or if a Man that pretends himselfe and really be well Exercised in Natural Philosophy Shall run over the titles or Indexes of ye digest, or Code, the first -7- shall be but a weake Phisician the second a weake Mathematician, and the third a weake Civilian, though possibly there might be a paritie in ye perfection or Degree of their reasoning Facultie abstracted from its habituátion to its object. Of all Kind of Subjects where about ye reasoning Facultie is conversant, there is none of So greate a difficulty for the Faculty of reason to guide it Selfe and come to any Steddiness as that of Laws, for the regulation and Ordering of Civil Societies and for the measureing of right and wrong, when it comes to particulars. And therefore it is not possible for men to come to the Same Certainty, evidence and Demonstration touching them as may be expected in Mathematicall Sciences, and they that please themselves wth a perswasion that they can wth as much evidence and Congruitie make out an unerring Systeme of Laws and Politiques equally applicable to all States and Occasions, as Euclide demonstrates his Conclusions, deceive themselves wth Notions wch prove ineffectual, when they come to particulr application. And the reasons of this difficulty are evident vizt.1 -8- 1. In Moralls and Especially with relation to Lawes for a Cōmunitie, tho the Cōmon Notion of Just and fitt are cōmon to all men of reason, yett when Persons come to particular application of those Cōmon Notions to 1 Hale has expressed the same ideas in somewhat similar words in his Preface to Rolle's Abridgment; cp. Burke, Reflections on the French Revolution 91-92. "The nature of man is intricate; the objects of society are of the greatest possible complexity; and therefore no simple disposition or direction of power can be suitable either to man's nature, or to the quality of his affairs. . . The pretended rights of these theorists are all in extremes; and in proportion as they are metaphysically true, they are morally and politically false. The rights of men are in a sort of middle, incapable of definition, but not impossible to be discerned. The rights of men in governments are their advantages; and there are often in balances between differences of good; in compromises sometimes between good and evil, and sometimes between evil and evil. Political reason is a computing principle: adding, subtracting, multiplying, and dividing, morally and not metaphysically or mathematically, true moral denominations." |