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

Abstract

This essay argues that the 1675 conviction of John Taylor by the Court of King's Bench for slandering God reveals Chief Justice Matthew Hale implementing a model of conjoint law-making between courts, Parliament, and crown that gave pre-eminent power to the common lawyers, and none to the Church of England. In doing so, it counters the prevailing literature on Restoration English law, which has treated the law as hierarchical, with the common lawyers subordinate to the sovereign. Rather than following statute or ecclesiastical law, which emphasised the spiritual nature of crimes like Taylor's, Hale located Taylor's offence in the exclusively temporal common law jurisdiction of defamation, which existed largely outside of monarchical purview. Hale's judgment reflected his rhetoric of judicial office outside the courtroom, where he argued the judiciary worked alongside King and Parliament in making law, but were not subservient to these institutions, for common lawyers relied on sources of law beyond sovereign-made statute. The language of sovereignty as hierarchical was thus a factional attack on an independent common law, an attempt to subordinate the common lawyers to the crown that was resisted by the lawyers like Hale in his rhetoric and exercise of office, and should not ground accounts of the Restoration regime.