The Progress of the Nation

Constitution and Laws

The final expulsion of the Stuarts constitutes a new era, at which it is necessary to pause and notice what has been the effect on the condition of the mass of the people, and what they themselves have been doing amid these extraordinary revolutions. We have, however, detailed the alterations in the constitution, the laws, and the church with so much minuteness, that little more is required of us on those heads in this review. From the commencement of the reign of Charles I. to 1640. the country was in a state of constant conflict betwixt the king and the parliament on the question of constitutional rights, which finally became actual warfare, and the country obeyed whichever power was in the ascendant by its armies, the nominal government, however, being chiefly in the parliament in the name of the king. On the death of Charles at the hands of his subjects, in 1649, the commons of England, then sitting as the Long Parliament, became the supreme power in the state, declaring themselves so without king or house of lords. But Cromwell's victories enabled him to dismiss this parliament summarily, and from that time forward England was under the dictatorship of Cromwell, who endeavoured to rule by the assistance of a parliament, but found it impossible, and held the reins of government himself, with the aid of a small council.

All the ancient forms of the constitution were thus completely broken down; yet, in no period of our history, as we have seen, were the laws more efficiently administered, or the liberties of the subject more respected; never was the power of the nation more acknowledged abroad. Cromwell was, it is true, too much occupied with maintaining his novel power against a swarm of public and private opponents to be able to carry out all the reforms in the abuses of the state which he contemplated ; but he made, or the Long Parliament made, some very sweeping ones. In 1650 the parliament ordered all the report books of the resolutions of judges and other law books to be translated into English, that every one might understand them; and though this was never carried out, yet the requirements of the same acts were that all writs, processes and their returns, all rules, pleadings, indictments, all patents, commissions, records, judgments, statutes, &c., and all proceedings in any courts of law, including courts-leet, courts-baron, and customary courts, should all be written in English, and not in Latin, French, or any other language, and in an ordinary hand and character, and not in what is called court-hand, which most people found difficult to read. This was a regulation received with great repugnance by the lawyers, and overthrown at the restoration.

In the same year certain oppressive fees, called damage- clear. or damna clericorum, which had been paid to the clerks of the different law courts before judgment could be executed, were abolished; and this salutary reform was confirmed by a special act of 1665, that is, after the restoration, so that it became a perpetual gain.

In 1653 an act was passed, allowing marriages to be effected before a magistrate, and introducing the simple Scotch custom of a declaration of the parties that they took each other as husband and wife being sufficient. This very reasonable reform, which exempted dissenters from the necessity of going to the churches of the establishment to solemnise their marriages, was also done away with at the restoration, and never recovered by the public till 1836, when dissenters were also authorised to have their marriages effected by their own ministers. At the same time, August, 1653, an act was passed establishing registers of marriages, deaths, and births in every parish - a most important regulation.

In 1654 Cromwell and his council exerted themselves to put down those cruel and debasing sports which had been the delight of the English court as well as of the people - cock-fighting, bull and bear-baiting, and similar practices. Colonels Pride and Hewson destroyed the bear gardens which had been so eagerly and constantly frequented by queen Elizabeth, and killed the bears - a circumstance which gave rise to the celebrated poem of "Hudibras," by Butler. And during the same year the protector and council also passed an act prohibiting duels, and making the delivering of a challenge to fight one punishable by six months' imprisonment, and the production of securities for good behaviour for a year. So far was Cromwell beyond the spirit of his own and even of our times till within a very recent period. This act went so far as to make it punishable by fine, and by reparation to the party injured, to provoke any one to violence by provoking words or gestures - a measure introduced now into our police laws.

At the same time an act was issued to reform the court of chancery, expediting its dispatch of business by relieving it of a multitude of causes, which were distributed through the other courts, and regulating its fees, and fixing them by a table. In 1652 the Long Parliament had voted the abolition of this court altogether; but Cromwell opposed its entire suppression, believing it might be reformed to the advantage of the public, and this reform he now accomplished.

In 1656 that radical parliament nick-named the Barebones Parliament by the indignant lawyers, abolished all the chief feudal tenures by which lands had been held of the crown, and abolished the court of wards and liveries, taking away "all homages, fines, licences, seizins, pardons for alienation, incident or arising from, or by reason of wardship, livery, primer seizin, or oustre le main" &c.; and that all tenures in capite and knights' service should be abolished, and such tenures be turned into common soccage. Purveyance and composition for purveyance were done away with. These were such boons to the aristocracy, that they did not forget, as we have seen, to bargain for their continuance on the return of kingship, though they took care to leave their feudal claims of manorial rights and copyhold fees in force.

The very important practices of granting new trials on account of defective evidence, excessive damages, or provable partiality of juries, and of the introduction of special juries themselves, appear to have been introduced during the period of the commonwealth; under which those oppressive engines of royalty, the courts of High Commission and Star-chamber, were also swept away.

One of the first acts of monarchy was to declare all the acts and proceedings of the parliaments and protectorate of the commonwealth null and void. The act, making it incumbent to call a fresh parliament within three years of the dissolution of another, was thrown into the common wreck; and all that Charles I. Had perilled his head by insisting on was replaced in its tyrannous activity, except the courts of the Star-chamber and High Commission, which were too odious even for those subservient times. Yet Mr. Hallam, in his constitutional history, has asserted that "the fundamental privileges of the subject were less invaded, the prerogative swerved into fewer excesses during the reign of Charles II. than perhaps in any former period of equal langth. Thanks," he says, "to the patient, energies of Seiden and Elliot, of Pym and Hampden, the constitutional boundaries of royal power had been so well established, that no minister was daring enough to attempt any general and flagrant violation of them." These extraordinary assertions have been also copied by other historians. Extraordinary they must appear after the perusal of our preceding chapters of this monarch's reign. True, he and his ministers did not dare formally to abolish Magna Charta or the Petition of Rights, nor even to revive the courts of the Star-chamber and High Commission $ but they discovered the means of leaving the securities of the constitution dead letters. It is true that Charles was compelled to call together parliaments more frequently to supply his necessities; but when they failed to do this, he had a resource in selling himself and all the best interests of his country to the French king for money. But admitting that he was more politic in his treatment of parliament than his father or grandfather, was he less tyrannic, or did he less invade the laws and liberties of the country? Have we forgotten that he enslaved every considerable corporation in the country, including that of London, by arbitrarily suppressing their ancient charters by writs of quo warranto, and thus compelled them to return such members to parliament as he chose? That he pursued a similar course in the counties, obtaining from venal and arbitrarily-appointed sheriffs similar returns? That with these packed parliaments he drained the country of money to spend on his, parasites and mistresses, and to the neglect and damage of all the vital interests of the nation? Was this no invasion pf the fundamental privileges of the subject? no exercise of excess in the prerogative? The fundamental privileges of the subject were swamped altogether in the substitution of mock parliaments for real representatives of the people.

Have we forgotten that judge after judge was set aside till Charles had found men subservient enough to pass such judgments as he pleased? Mr. Hallam says, "There were no means of chastising political delinquencies except through the regular tribunals of justice, and through the verdict of a jury." Were those regular tribunals, when even the juries who were to try the regicides were notoriously to be packed, and the trials were not allowed to take place till new and subservient sheriffs were appointed? Ludlow, one of them who had escaped to Switzerland, says: - "This important business was delayed during the time that Mr. Love was to continue sheriff of London, he being no way to be induced, either by fear or hopes, to permit juries to be packed in order to second the designs of the court." By such juries, and before commissioners including such men as Monk and Shaftesbury, who had sworn that none of their old political friends should suffer by the restoration - before the renegades Denzell Hollis? Montague earl of Sandwich, Clarendon, Saye and Sele, and numbers of such, besides their declared enemies, the duke of Ormond, the earl of Berkshire, &c., were tried and condemned Harrison, Scrope, Vane, and the rest of them. What regular trials and what juries had the unfortunate catholics who perished under the base evidence of such men as Titus Oates, Bedloe, Prance, Dug- dale, and that perjured crew? What constitutional protection under such judges as Jeffreys, and Treby, and Scroggs, with tory sheriffs and packed tory juries, had lord Russell and Algernon Sidney? "Convictions," says Macaulay, "were obtained without difficulty from tory juries, and rigorous punishments were inflicted by courtly judges. With these criminal proceedings were joined civil proceedings scarcely less formidable."

With such means for modelling judges and constituting juries, there was no need to obstruct the operations of writs of habeas corpus (Charles even allowed the habeas corpus act to be passed); his judges and juries could deal as they pleased with any unfortunate that the court took offence at.

But the chief directions which - the infringement of the liberties of the subject took in the reign of Charles H. was that of the suppression of all rights of conscience* and the punishment and spoliation of those who dared to resist. Charles was not long in forgetting his promise of freedom of conscience in his famous "Declaration of Breda." The church, with all its old assumptions of exclusive dominance, was restored, as we have seen, and the most stringent acts passed for crushing every expression of departure from the established creed. Besides all presbyterians and independents being driven out of the pulpits of the state, a series of the most tyrannical acts were passed to drive all dissenters out of every office of trust and honour, and to punish them for assembling to worship in the most private manner according to their own form of worship. There was the corporation act passed in 1661, compelling every one, before being admitted to any office in any municipal corporation, to take the sacrament according to the fashion of the established, church, and to subscribe the declarations abjuring the solemn league and covenant, and against the lawfulness of taking up arms against the king on any pretence whatever. This was followed by the act of uniformity, in 1662, compelling every one to declare his assent to everything in the book of common prayer before he could be admitted to any church preferment, and to be licensed by a bishop even before he could teach a school. The church and corporations having been thus effectually barred to every honest man who did not hold the faith of the predominant church party to the title, the dissenters were pursued to their own meetings and punished there. An act against seditious conventicles, commonly called the conventicle act, was passed in 1664, by which every person found at a dissenting meeting where above five persons were present, was punishable by fine, or three months imprisonment; and for a third offence was transported for seven years! Nor was this deemed enough. Thoroughly to crush all teaching of religion except in churches, a new act, called the five-mile act, was passed the following year, 1665, by which every dissenting minister found within five miles of the place where he had ever preached was fined forty pounds! Besides these most oppressive enactments, which let loose the base tribe of spies and informers on the whole dissenting world - this very world to which Charles, in his declaration of Breda, had promised liberty of conscience - a still more atrocious act was passed in 1670 against conventicles, by which even children above sixteen years of age were fined five shillings for attendance at such meetings, and ten shillings for a second and every subsequent appearance there; and the preacher was fined twenty pounds for the first offence, and forty pounds for every subsequent one; the master of the house where the meeting was held being fined twenty pounds each time. Authority was given to break open any man's door upon the receipt of information that such meeting was holding, and take all present into custody. Where, then, was Magna Charta? Where the boast that every man's house was his castle? Lastly, there was the test act passed in 1673, extending the disabilities of dissenters and catholics from corporations, to parliament, and every office under the crown. In fact, instead of Charles not stretching the prerogative, and not violating the privileges of the subject, as Mr. Hallam asserts, there never was a time when all the safeguards of the constitution were more completely prostrated; for, besides these acts aimed at the suppression of all freedom of opinion, there were two other acts passed in his reign, and at the very commencement of it, too, in 1661, which perfected the subjection of the people - - one, the act against tumults and disorders, which made it an offence punishable with a penalty of one hundred pounds and three months' imprisonment to even solicit a signature to a petition to king or parliament which had more than twenty such signatures, unless such petition was sanctioned by three justices of the peace, or the majority of the grand jury of the county; whoever presented such petition was liable to the same penalty, or whoever was present at the presentation of a sanctioned petition, if there were more than ten persons attending it; and that the military powers might be prepared to back up effectually these despotic regulations, another act declared the whole of the military and naval power of the kingdom, including the militia and all places of strength in the kingdom, to be in the sole and absolute power and possession of the crown.