was not of the return of presbytery but of the return of popery; and we have seen what took place. The established church took up its station in the van of what was as much a battle for the civil as for the religious liberties of the nation; and the whole country rallied around it. Equally without as within the walls of the House of Commons, all the great denominations of the Protestant dissenters, and more especially the Presbyterians, the most considerable of them all, forgot everything but that aversion to popery which was common to them with the establishment,-their differences with it alike as to discipline and as to doctrine, their old struggle with and triumph over it, their recent persecutions and sufferings under it,—and willingly gave their consent to any laws, to any measures, by which the common foe might be crushed or cramped, nay, clamoured in some instances for disabling and coercive enactments against the papists, although they themselves, the Protestant non-conformists, should in some degree be disqualified along with them. All this, as we have said, placed the established church upon a rock of strength such as it had never stood upon since the Reformation. It was by far the most popular of the national institutions; the crown, the House of Lords, the House of Commons, would, any one of them, in an encounter with it, have gone to the wall; in regard to each and all of these other powers in the state, the tide of the popular favour ebbed and flowed during the whole of the reigns of the two last Stuarts as the established church stood affected or

gave the signal. It is remarkable how much misgovernment in every other way, how long and various a course of despotism and oppression, the nation endured without being roused to any strenuous or general effort to right itself, till the church was attacked. The persecution of the Nonconformists, both in England and in Scotland, although in the latter country that was a war against the great body of the population, produced even there only some petty local revolts, the miserable efforts of utter bewilderment and despair, which the government crushed with a few squadrons of horse; the profligate and disgraceful misadministration of public affairs throughout the last twenty years of the reign of Charles, including the actual abrogation of the constitution by the extinction of parliamentary election, provoked nothing beyond some little temporary effervescence; the avowed Catholicism and arbitrary principles with which James began his reign called forth no general resistance, although two simultaneous foreign invasions gave the signal and led the way; even the atrocities of Judge Jeffreys, which made the land a shambles, and turned the law itself into the bloodiest of tyrannies, awoke only groans, and unuttered curses, and thoughts of revenge; but the imprisonment of the seven bishops at once brought about a revolution. Truly, the established church stood in a different position now from that which it occupied when the ten protesting bishops were sent to the Tower by the House of Lords in December, 1641, in the first scene of the long drama which was now arrived at its last.

HE restoration of the monarchy, in 1660, was held to be also the restoration of all the ancient laws down to the last act of parliament to which Charles I. had given his assent in the usual form immediately before his leaving London, in January, 1642.* All the legislation of the successive parliaments and governments that had subsisted since that date was considered to be annulled and swept away by the single fact of the return of the king. In truth, however, the republican legislation which was thus suddenly all repealed at once was much less considerable in amount and also in importance than would readily be suspected either from the number of years during which the ancient constitution of the supreme government had been in abeyance, or from the extent of the change that had been made in one or two leading particulars. One reason of this was, that many of the most important of the reforms or innovations urged by the Long Parliament had been carried by them before their final quarrel with the late king, and had been regularly established by statutes passed in the usual form. This was the case with the prevention of the intermission of parliaments for more than three years with the regulation of the privy council, and the abolition of the Court of Star Chamberwith the extinction of the ecclesiastical commissionwith the declaration of the illegality of ship-money -with the reform of the Stannary Courts-with the limitation of the forest laws-with the abrogation of the old law or custom compelling persons to receive knighthood-and with the ejection of the bishops from the House of Lords and the privy council, and of all churchmen whatever from offices of temporal authority or jurisdiction. After these changes, and the overthrow of the monarchy, the church, and the House of Lords, in which the Revolution mainly consisted, the few other changes

See ante, p. 266.-The last act passed by Charles I. was the 16 Car. I. cap. 37, entitled, "For the further advancement of an effectual and speedy reduction of the Rebels in Ireland to the oubedience of his Majesty and the Crown of Englaud:" to which his assent was given 24th December, 1641. We do not know upon what principle the Record Commissioners, in their edition of the Statutes of the Realm, have, contrary to their uniform practice elsewhere, printed at full length among the public acts of this parliament the act for the attainder of the Earl of Strafford, the title of which they also afterwards give in their list of private acts. Nor does it appear why they have headed it" Chapter xxxviii." It received the royal assent ca the 10th of May, 1641.

VOL. III.

that were made by the Long Parliament and its successors were extremely insignificant.

The successive "shiftings" of the supreme authority from the meeting of the Long Parliament till the termination of the protectorate have been stated by Hobbes, in a passage of his Behemoth, with his characteristic precision:-"First, from 1640 to 1648, when the king was murdered, the sovereignty was disputed between King Charles the First and the Presbyterian parliament.Secondly, from 1648 to 1653 the power was in that part of the parliament which voted the trial of the king, and declared themselves, without king or House of Lords, to have the supreme authority of England and Ireland. For there were in the Long Parliament two factions, the Presbyterian and the Independent: the former whereof sought only the subjection of the king, not his destruction directly; the latter sought directly his destruction; and this part is that which was called the Rump.

Thirdly, from April the 20th to July the 4th, the supreme power was in the hands of a council of state constituted by Cromwell.-Fourthly, from July the 4th to December the 12th of the same year, it was in the hands of men called unto it by Cromwell, whom he termed men of fidelity and integrity, and made them a parliament, which was called, in contempt of one of the members, Barebone's Parliament.-Fifthly, from December the 12th, 1653, to September the 3rd, 1658, it was in the hands of Oliver Cromwell, with the title of Protector.-Sixthly, from September the 3rd, 1658, to April the 25th, 1659, Richard Cromwell had it as successor to his father.-Seventhly, from April the 25th, 1659, to May the 7th of the same year, it was nowhere.-Eighthly, from May the 7th, 1659, the Rump, which was turned out of doors in 1653, recovered it again, and shall lose it again to a committee of safety, and again recover it, and again lose it to the right owner." The Rump was turned out the second time by Lambert and the council of officers on the 13th of October; from which time the government was in the committee of safety till the restoration of the Rump on the 26th of December. The members excluded in 1648 were restored to their seats by Monk on the 21st of February, 1660. The Long Parliament, thus re-established, sat till the 16th of March; and the next parliament, which restored the king, commonly called the Convention Parliament, met on the 25th of April.

The laws made by these various governments, being, as we have observed, on the re-establish

50

ment of the monarchy held to be no laws at all, do not appear among the collected statutes of the realm; and they have received very little attention from any of our legal historians. The royalists, indeed, have been accused of a design or a desire to suppress altogether the legal history of the commonwealth: Clarendon is said to have proposed at the council-table to destroy all the public documents connected with that period; but if the intention of concealing the proceedings of the republican parliaments from the knowledge of posterity was ever entertained, there was no danger of such an attempt being successfully made. If all the papers and parchments in the public offices had been given to the flames, the legislative as well as the other public transactions of the twenty

years from 1640 to 1660 would have remained on record in many other forms. Besides the numerous histories, memoirs, diurnals or newspapers, and other contemporary productions of the press, which had already spread the knowledge of them over the world, laborious transcribers, like Rushworth and Thurloe, and pains-taking diarists, such as Whitelock and Burton, had already stored up the amplest details of everything material that had been done, written, and spoken, in parliament and out of it, by those concerned in public affairs during that period. The acts and ordinances of the legislature had all been printed and dispersed over the kingdom, by authority, at the time when they were passed; and all those of importance had been besides preserved in the two collections of Husband

and Scobell, both published in the time of the Commonwealth.*

By far the larger portion even of Scobell's Collection, which professes to contain only such acts and ordinances as remained of importance at the time when it was published, all those of a merely temporary character being discarded,† consists either of legislation of the most objectionable or at least questionable kind, or of matter not involving anything that can properly be called a principle of legislation at all; acts for the raising of subsidies, contributions, loans, and other taxation and money acts; acts for the raising and provisioning of forces; acts for sequestrating the estates of delinquents, and for the sale of the property of the crown and of the church; acts for the regulation of printing, that is to say, for the establishment of a censorship of the press; acts for the pharisaical observance of the Sabbath, &c. &c. Mixed with these are a number of commercial regulations,―among the rest the first navigation act,—already noticed in our account of the national industry in the last Book. The new impost of the excise also produced several voluminous acts.§ Of all that is of any value or permanent interest in what remains an account may be given in a very few sentences. It is impossible, after an examination of the legis lative remains of the Long Parliament, to refuse assent to what has been affirmed by a distinguished modern historian of the constitution :-"It may be said, I think, with not greater severity than truth, that scarce two or three public acts of justice, humanity, or generosity, and very few of political wisdom or courage, are recorded of them from their quarrel with the king to their expulsion by Cromwell." || In truth, the circumstances in which the several republican parliaments and governments were all placed were such as almost to preclude any attempt at legislation except for the moment. Till the execution of the king, the war or the work of fruitless negotiation left them scarcely any time for remoter cares. No sooner was

Collection of all the Fublic Orders and Declarations of both Houses of Parliament, from March 19, 1642, to December, 1646: by Edward Husband (Printer to the Parliament). Folio. Lon. 1646. Collection of Acts and Ordinances of General Use made in the Parliament begun and held at Westminster, the third day of November, 1640, and, since, unto the adjournment of the Parliament begun and holden the 17th of September, 1656, and formerly published in print; by Henry Scobell, Esq., Clerk of the Parliament: printed by special order of Parliament. Folio. Lon. 1658.

+ Scobell tells us, in his Preface, that his first intention was to have collerted all the acts and ordinances which had been made and pubIshed in print from the beginning of the Long Parliament; but, he adds," upon the perusal of all those acts and ordinances, I found them very numerous, and the major part (especially from the year 1641 to 1648) occasioned by and having reference to the late troubles and the managing of the war; some of which had their determination as soon as they were put in execution; others of no long continuance, but for the present emergency; and, among the rest, many were temporary and long since expired, and not a few respecting only partiealar persons, places, or occasions, which, if printed, would have swelled this book, and have been of little or no use other than to preserve the memory of what was done in those times upon exigencies, the memorial whereof will be continued in a great measure by the books formerly printed, and yet extant in particular hands." He therefore "determined to lay aside all such acts and ordinances as had sole relation to the then present times, and particular occasions, and such as respected some one or a few counties, cities, towns, garrisuns, or persons only, together with such as were for a limited time, and so expired without being continued or revived." Of all these he gives only a catalogue of the titles.

I See ante, pp. 547-549.

See ante, p. 525.

Hailam, Const. Hist. ii. 2.

the war of arms over than the war of factions commenced; and that was put an end to or suspended only by the despotism-the necessary despotism, we believe-of the protectorate. After that, all the genius and vigour even of Cromwell was required to enable him merely to keep his seat; till, at his death, the vessel of the state, amid universal confusion and uproar, began to fall to pieces, like a ship that had struck upon a rock.

It will be found, we believe, that the only real reforms of the law that were made in the time of the commonwealth were the following:

By an act passed in November, 1650, it was directed that all Report Books of the Resolutions of Judges, and other books of the law of England, should be translated into the English tongue, and that all such books as should be printed after the 1st of January ensuing should be in the English tongue only. "And be it further enacted," continues the statute, "by the authority aforesaid, that from and after the first return of Easter Term, which shall be in the year 1651, all writs, process, and returns thereof, and all pleadings, rules, orders, indictments, inquisitions, certificates, and all patents, commissions, records, judgments, statutes, recognizances, rolls, entries, and proceedings of courts-leet, courts-baron, and customary courts, and all proceedings whatsoever in any courts of justice within this commonwealth, and which concern the law and administration of justice, shall be in the English tongue only, and not in Latin or French, or any other language than English, any law, custom, or usage heretofore to the contrary notwithstanding. And that the same and every of them shall be written in an ordinary, usual, and legible hand and character, and not in any hand commonly called court-hand."* The translation of the old report-books, though specially committed by a subsequent act to a board composed of the Speaker of the House of Commons, the lords commissioners of the great seal, &c.,† was never executed. The use of English, and of the common character, in law proceedings, after having been given up at the Restoration, was again enforced in 1730 by the statute 4 Geo. II. c. 26; but the innovation has not been universally approved of. Blackstone endeavours to make out that it has been attended with various inconveniences.‡

Another act of the year 1650 abolished the fee called damage cleer, or damna clericorum, which was originally a gratuity given to the prothonotaries of the Courts of King's Bench, Common Pleas, and Exchequer, and their clerks, for drawing special writs and pleadings, and which had become an assessment of a certain portion of all damages exceeding five marks recovered in any of those courts, which the plaintiff was obliged to pay to the chief officer of the court before he could have execution. This reform was also re-enacted in 1665 by the statute of 17 Car. II. c. 6.

In August, 1653, an important act was passed establishing in every parish a register of marriages, births, and burials, to be chosen by the inhabitant householders, and allowing marriages to be solemnized before justices of the peace, and by a mere declaration of the parties that they took each other for husband and wife. The act further declared that no marriage otherwise celebrated after the 29th of September ensuing should be held or accounted a marriage according to the laws of England; but this clause was repealed in 1656.* The Commonwealth law of marriage, therefore, in the state in which it was finally left, may be considered as the same in principle with that established by the act passed for the relief of dissenters in 1836. The machinery provided for the registration of births, deaths, and marriages, by the act of 1653, could have been of little or no use.

In March, 1654, an act was published by the lord protector and his council prohibiting cockmatches; and in June the same year, another, prohibiting challenges to fight duels, on pain of the offender being committed to prison for six months, and being bound in recognizances to be of good behaviour for a year thereafter. A clause of this latter act also prohibited the use of provoking words or gestures, directing that any person so offending might be indicted at the gaol delivery or general sessions of the peace; and, if found guilty, bound to good behaviour, fined, and, moreover, compelled to make reparation to the party wronged, as to the judge or justices should seem meet, "upon consideration had both of the quality of the person injured and the offence committed." The principle of this enactment has been partially adopted in the late new police bill.

Among the last acts of the Long Parliament had been a vote (carried on the 19th of August, 1652, by 46 to 38 against Cromwell and his party) abolishing the Court of Chancery. No act, however, No act, however, seems to have been founded upon this resolution. But in August, 1654, Cromwell and his council promulgated an act for limiting the jurisdiction of the Court of Chancery, and regulating the proceedings therein. It consists of sixty-seven clauses, together with a table of fees. This act, in the framing of which he had not been consulted, so much offended Whitelock, the chief commissioner of the great seal, that he resigned his office.

An ordinance abolishing the court of wards and liveries had been passed by the Lords and Commons on the 24th of February, 1645, but it seems to have taken no effect; the government had still continued to collect the dues of wardship, &c., as had been done before the abolition of the monarchy. In the end of 1656, however, the Barebones Parliament, "for the further establishing and confirming" the former ordinance, enacted

"that the court of wards and liveries, and all wardships, liveries, primer-seisins, and oustrelemains, and all other charges incident and arising for or by reason of any such tenure, wardship, livery, primer-seizin, or oustrelemains, be taken away" from the said 24th of February, 1645; "and that all homage, fines, licenses, seizures, pardons for alienation incident or arising for or by reason of wardship, livery, primer-seizin, or oustrelemain, and all other charges incident thereunto, be likewise taken away" from the same date; and that all tenures in capite and by knight's service, of the late king or any other person, and all tenures by soccage in chief, be taken away; and all tenures turned into free and common soccage," from the same date. The wonder is, that this abolition of the feudal dues formerly appertaining to the crown should have been so long deferred. It is also worthy of observation that, notwithstanding this apparently sweeping destruction of feudalism, all heriots and other feudal dues payable to mean (that is, intermediate) lords or other private persons were reserved, and ordered to be still paid as usual. By another act of this parliament purveyance and compositions for purveyance were taken away. Both these reforms were re-enacted after the Restoration, by the statute 12 Car. II. cap. 24.

We may here also mention, as it would seem to have escaped notice, a clause in an act for the regulation of officers of the navy and customs, passed in January, 1648, by which all taking of fees from merchants or others, by officers of the customs, is abolished, and compensation ordered to be made to them by an increase of their salaries. The principle of this enactment has been adopted in several recent statutes.

and

And

The introduction of new trials has been dated from the time of the commonwealth. "There are instances," says Blackstone, "in the Year Books of the reigns of Edward III., Henry IV., Henry VII., of judgments being stayed (even after a trial at bar) and new venires awarded, because the jury had ate and drank without consent of the judge, and because the plaintiff had privately given a paper to a juryman before he was sworn. upon these the Chief Justice Glynn, in 1655, grounded the first precedent that is reported in our books for granting a new trial upon account of excessive damages given by the jury; apprehending, with reason, that notorious partiality in the jurors was a principal species of misbehaviour. A few years before a practice took place in the Common Pleas of granting new trials upon the mere certificate of the judge (unfortified by any report of the evidence) that the verdict had passed against his opinion; though Chief Justice Rolle (who allowed of new trials in case of misbehaviour, surprise, or fraud, or if the verdict was notoriously contrary to evidence) refused to adopt that practice in the Court of King's Bench."§