The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Select Essays In Anglo-american Legal History Volume I General Surveys
• A Table of British Regnal Years
• Part I.: Before the Norman Conquest
• 1.: Frederick William Maitland, a Prologue to a History of English Law 1
• 2.: Edward Jenks, the Development of Teutonic Law 1
• 3.: Sir Frederick Pollock, English Law Before the Norman Conquest 1
• Part II.: From the Norman Conquest to the Eighteenth Century
• 4.: Alice Stoppard Green, the Centralization of Norman Justice Under Henry Ii 1
• 5.: Edward Jenks, Edward I, the English Justinian 1
• 6.: Frederick William Maitland, English Law and the Renaissance 1
• 7.: Thomas Edward Scrutton, Roman Law Influence In Chancery, Church Courts, Admiralty, and Law Merchant 1
• 8.: William Stubbs, the History of the Canon Law In England 1
• 9.: William Searle Holdsworth, the Development of the Law Merchant and Its Courts 1
• 10.: James Bryce, a Comparison of the History of Legal Development At Rome and In England 1
• Part III.: The American Colonial Period
• 11.: Paul Samuel Reinsch, the English Common Law In the Early American Colonies 1
• 12.: St. George Leakin Sioussat, the Theory of the Extension of English Statutes to the Plantations 1
• 13.: Charles Mclean Andrews, the Influence of Colonial Conditions As Illustrated In the Connecticut Intestacy Law 1
• Part IV.: Expansion and Reform of the Law In the Nineteenth Century
• 14.: R. Robinson, Anticipations Under the Commonwealth of Changes In the Law 1
• 15.: John Forrest Dillon, Bentham’s Influence In the Reforms of the Nineteenth Century 1
• 16.: Charles Synge Christopher, Baron Bowen, Progress In the Administration of Justice During the Victorian Period 1
• 17.: Joseph Henry Beale, Jr., the Development of Jurisprudence During the Nineteenth Century 1
• 18.: James Bryce, the Extension of Roman and English Law Throughout the World 1
• Part V.: Bench and Bar From Norman Times to the Nineteenth Century
• 19.: John Maxcy Zane, the Five Ages of the Bench and Bar of England 1
• 20.: Van Vechten Veeder, a Century of English Judicature, 1800-1900 1
• 21.: James Kent, an American Law Student of a Hundred Years Ago 1

14.

ANTICIPATIONS UNDER THE COMMONWEALTH OF CHANGES IN THE LAW1

By R. Robinson2

THIS essay touches on some of the alterations made or suggested by the statesmen and jurists of the Republic in our judicature and in our criminal and civil law. It avoids social, constitutional, and political questions—political, like the union of Great Britain, though that involved an union of laws;3 constitutional, like the abolition and reconstruction of the Upper House of Parliament;4 social, like the establishment of public works for the poor,5 and of a public post-office.6

The goodness of the laws of Charles II., contrasted with the badness of his government, has drawn a compliment from Blackstone, epigrams from Burke and Fox, and a paradox from Buckle. An enquiry into the source of these laws may show that the paradox is unreal, the epigrams unfounded, the compliment due to the Republicans; that they, in redressing grievances which from the time of James and Bacon1 had been fostering rebellion, forestalled the law-reformers, not of the Restoration only, but of our own age.

The legislators of 1641 had struck blindly at all courts which seemed to them arbitrary or peculiar; they had not asked how far these were due to the faults of the Common Law, to the wants of society, to the difficulty of travelling. That year had seen the Privy Council, the Stannary Court, the Forest Court, nominally regulated, but, in fact, paralyzed, the Court of Chivalry abolished by resolution, the Courts of Star Chamber, of Requests and of High Commission, and the right of temporal jurisdiction, which was among the “royal rights” of the Bishops of Durham and of Ely, taken away by statutes. With the Star Chamber the Palatine courts, as far as they were its antitypes, and the Courts of the Councils of Wales and of the North fell to the ground. Nay, it was forbidden to erect such tribunals.2 But the necessity for them was overwhelming: diversity of usage, caused by difference of circumstances, made it possible to pass a bill for the uniformity of law.

Take, for instance, the series of High Courts of Justice constituted to try the King, the democrat Lilburn, the Royalists Hamilton, Holland, Norwich, Capel and Owen, constituted again or continued in 1650, again in 1651, again in 1652, again in 1653, again for the trial of Gerard and Vowel in 1654, again in 1656. Besides these, the jurisdiction of which was national, there was one erected in 1650 for Norfolk and Norwich, Suffolk, Huntingdonshire, Cambridgeshire, Lincolnshire and the Isle of Ely. They were constituted sometimes by Parliament, sometimes, seemingly, by the Executive. They were not meant to be perpetual; but they were meant to reach by Equity crimes and criminals which Common and Statute Law and public opinion would not have reached. Clarendon calls them “a new form.” Rather they were suggested by the Star Chamber, in favour of which the Privy Council and the Chancery had parted with their criminal jurisdiction, which dexterously construed intentions into acts, which (like the High Courts of Justice, as Clarendon taunts them) did away with “distinction of quality” in capital cases, and made “the greatest lord and the meanest peasant undergo the same judicatory and form of trial,”1 equalizing them in the dock as, during the French Revolution, the guillotine equalized them on the scaffold. Clarendon’s sneer, repeated in earnest in St. 1656, c. 3, that these tribunals were “for the better establishment of Cromwell’s empire,”2 in other words, for the maintenance of order, is their apology.

Changes more or less sweeping in the Superior Courts of Common Law and in the Law Terms were proposed. The latter were regarded by the people as of Norman, indeed, of the Conqueror’s institution, and wasted time and money. Nor need we have wondered if, as the early Christians, abhorring Pagan festivals, administered justice daily, so the Puritans, abhorring Catholic festivals, had effaced the distinction between term-time and vacation. However, Michaelmas Term having been shortened so as to suit the farmers, no more was done.3 The alterations made in the Superior Courts embarrassed Chief Justice Foster after the Restoration, but, such was the strength of the Common-lawyers, did not satisfy the reformers.4 Stt. 1649, c. 10, and 165¾, c. 4, only accommodated their forms to those of the new constitution. Fines on declarations were taken away with those on bills and on original writs; but fines on writs of covenant and of entry were left.1 The conflicts of jurisdiction carried on not only between the Common Law Courts and the Chancery and the Admiralty and the Ecclesiastical Courts, but also among the Courts of Common Law themselves, carried on by means of fictions and prohibitions and injunctions, and causing great expense, were a scandalous evil.2 The Committee of Law Reform (1653) dealt with this grievance.3 It would have confined all tribunals within certain bounds, have kept all actions between subjects under that “lock and key of the Common Law”—the Court of Common Pleas, have allowed barristers as well as serjeants to plead before that bench, and every attorney to practise in any court, and have paid the judges by salary and not by fees. Now, it was covetousness rather than desire to amplify jurisdiction, rather even than ambition, which led to those costly conflicts; and therefore such measures, combined with others against judicial corruption, would have abated nuisance. But they could not be carried. A century later Willes, C. J. C. P., proposed that Parliament should open his court to barristers; he was met by the plea that there should be there (as there now is to some extent in the courts of first instance in Equity) a resident bar. In 1834 another attempt was made: in 1840, amid a furious tempest of wind (as Bingham, the reporter, notes), it was repelled. In 1847 the plan of 1653 was accomplished.4

Between the Equity and the Common Law Bar there was a quarrel of old standing; and now that the latter, the soul of the Rebellion, was in the ascendant, the Chancery seemed marked for destruction. Bishops had presided over it, kings had favoured it, its jurisdiction had been extended (substantially, as time shewed, in compliance with the wants and spirit of the age), but illicitly, irregularly, and tyrannically. An injured public declared that it swarmed with “a numberless armado of caterpillars” and “Egyptian grasshoppers;” and in 1653 an act, which never operated, passed for its abolition.1 Meanwhile, it had been reforming itself. In 1649 the Commissioners of the Seals, Whitelock, Keble, and l’Isle, assisted by Lenthal, M. R., in provisional orders, forbade prolix, scandalous, and ambiguous pleadings and set bounds to multiplicity of suits, to suits in formá pauperis and to the granting of injunctions: these were granted often for the sake of the fees, and dissolved by connivance with the Common Law judges, that they, when they went circuit, might not have nothing to do.2 Many other attempts were made by the Commissioners and by the Commons to improve the court. But the “cases” of the latter were “far more precious than their carcases,” and little was done till the Committee of 1653 suggested the best part of Cromwell’s famous ordinance.3 That passed on the 22nd of August, 1654. It was bitterly attacked by the bar,4 and not unjustly; for it aimed with more earnestness than skill at rapidity, simplicity, and cheapness. Its prevailing tendency and that of the orders of 1649 and of public opinion was to deprive Equity of what she had taken from Law, and to protect obligors and mortgagees. Plaintiffs were to give security for costs; as many admissions as possible were to be made by each party; each was to suffer for causing unnecessary expense; witnesses were to be properly examined, but not, it seems, in court. On the other hand, no case was to be heard for more than one day. The schedule again, besides attacking the length of legal documents (“the round-about, Robin-Hood circumstances, with ‘saids’ and ‘aforesaids,’ ” the “huge gaps, wide as meridians in maps,” the reckoning fifteen or eighteen lines to a folio) as an absolute evil, attacked it also as profitable to the lawyers; the answer, that lawyers must be properly paid, indirectly if not directly, was old as Bacon.1 On the whole, though some of the reforms were tacitly adopted by Clarendon, they were not enough; and the best thing which the Commonwealth did for Equity was, not to fuse it with—I find no notion of fusing, but to reduce it to, Common Law. That it did by placing on the Equity Bench Common-lawyers whose political career had made them acquainted with the defects of their own school, and whose antecedents had disposed them to find in Equity one of the grounds of Common Law, to study it as a science, and administer it regularly.2 That view, so rational, so true to history, reconciling Coke and Selden with Bacon, Ellesmere and Hobbes, inherited from Hale by Nottingham, has descended through Camden and Eldon, and, if now out of date, was suited to England in the seventeenth century. England needed Equity, and yet that Equity should cease to be “mysterious,” and “the measure of the Chancellor’s foot.”3

A series of statutes professed to take away all “ordinary jurisdiction,”4 and, no doubt, from spiritual persons, took it and every privilege away. The Courts Christian had long been doomed. They remind those whose hatred of the episcopate had led them to fix on spotted dogs the name of “bishop” that prelacy had been in the ascendant:5 they reminded the many of penance done with paper lantern and in white sheet for heresies and vices;1 of comfort given to tyranny and to popery: the law which they administered was not English, and though intrinsically less obscure, was less easily understood by the people than Common Law: their judges had been corrupt2 and the civilians who pleaded in them unpopular:3 lastly, the time favoured, and the constitution of those tribunals justified, and alteration. Yet ordinary jurisdiction was transferred only, and not entirely taken away: partly it was necessary, and partly it was suited to the age. The business of the Clerical Courts, administrative and litigious, had still to be done; acts regarded in law as crimes did not cease in public opinion to be criminal; tithe was exacted still; property left by testators and intestates had still to be disposed of; clerks had still to be instituted and inducted: these duties were transferred by degrees to lay hands.4

On the civil side of the Spiritual Courts analogous changes were made, such as Bacon might have recommended,5 such as have nearly all been since carried out. All questions about tithes—“Norman” though they were—were tried at Common Law.6 As to probate and administration: Bacon and Selden had argued that, by the Civil and the Canon and the English Law, the profane hand has a better right than the sacred to grant probate, to distribute legacies, to administer the property of intestates;7Brown v. Wentworth and Hensloe’s Case were recent authorities in their favour,1 and another was the practice of civilized Europe,—France, and especially Brittany, excepted.2 In 1653, accordingly, a temporal tribunal was erected and endued with the powers of the Consistory and Prerogative Courts: it consisted of twenty judges, five of whom were a quorum; among them were Cooper, afterwards Lord Shaftesbury, Hale, Desborough, Cock, Peters, and Rushworth. The measure was crowned by the establishment of district registries for all wills and for letters of administration.3 Legacies were to be sued for at Common Law.4 St. 165, C. 43, appointed delegates to try the validity of questionable marriages.5 The effect of all this was to replace Ecclesiastical by Common Law, not simply to bound the jurisdiction of the former by the latter.6 “I would not have law bookes to be dealt withall like the Common Prayer Booke, which as (sic) happily laine aside like an old caske for its ill savour,” says John Coke, solicitor-general at Charles’s trial, and afterwards Chief Justice of Munster, “but refined, purged, and conformed to Right Reason, speedy justice, and consconable (sic) Equity. Let his expurgation be, at the first dash, of all matters ecclesiastical and bishops’ appurtenances, for what feare is there to expel that brats (sic) having banisht the father?”7

A mercantile country found our marine courts necessary, but in need of reform. Their judges were deputies, often without experience8 and often inclined by covetousness or by ambition to stretch their powers. During twenty years the Republicans settled and restrained their civil jurisdiction by statutes:1 and, when these were set aside at the Restoration a bill embodying them was brought into Parliament and supported by Sir Leoline Jenkins.2 St. 1649, c. 61, vested in the Common Law Courts (and presumably took from others) jurisdiction over crimes committed on or beyond the seas: St. 1650, c. 7, however, explained that the Court of Admiralty had such jurisdiction still. Letters of marque were granted though under restrictions.3 Stress of war and ignorance of Political Economy made the Commonwealth pass Acts of Navigation and maintain the pressgang.4 But impressment was balanced by high wages, short periods of service, provision made for disabled seamen and for seamen’s families. Stt. 1650, c. 28, and 1651, c. 22, perpetuated with aggravations in 1661 and 1663, approved by Blackstone, approved by even Adam Smith and Brougham,5 were not repealed till 1854.

District courts to try small causes were in demand: not only such as have been erected since 1846, but more like those which Smith, J., and the Solicitor-General have lately recommended.6 The sheriff’s county court, the hundred court, the freeholder’s court baron, had become inadequate, and were too often obliged, by writs of pone accedas, recordari and false judgment, to send cases up to the Superior Courts, there to be slowly and expensively decided. In Bacon’s time the subjects of England did already fetch justice somewhat far off, more than in any other nation that he knew, the largeness of the kingdom considered; nor did the circuits nor the Courts of the Councils of Wales and of the North, which he compared to the French Parliaments, and to which he would have added a Border Court at Carlisle or Berwick, meet the want.1 The inconveniences flowing from that practical denial of justice to those rustics who had sustained slight injuries or had little debts outstanding conspired with fashion to centralize England in London. The determination of wealth and ability to the capital had been resisted by Tudors, Stuarts and Republicans with futile measures against building and absentees.2 But the Republicans were for resisting it also by improving the judicial and administrative system of the country. Carey in 1627 had turned to Spain, then in many respects another and a better England,3 and asked for district courts with a summary jurisdiction such as he saw there.4 The first steps taken by the Long Parliament were even in an opposite direction: it abolished all courts of the kind, and, no doubt, their scope, like that of the Stannary Court according to Clarendon, “had been extended with great passion and fury.” But in 1645 complaint was made of the tedious journeys to Westminster: in 1648 Carey’s request was renewed and a proposal made that all Superior Courts but that of Parliament should be swept away; and many a pamphleteer joined in the chorus:—“Let the people have right at their own doors.”5 In answer, the Palatine and the Duchy Court of Lancaster were revived by statute under Bradshaw and others, courts of conscience were established and county judicatures planned for England, courts baron were erected in Scotland and manorial courts6 in Ireland.

I pass from the courts to the attorneys, barristers, and judges. The first, not long distinguished from the second, had multiplied with the increase of business, and, on the abolition of arbitrary courts in 1641, those of them who had practised in these, and were called solicitors, flooded the Court of Chancery. There, though much of the work done by their modern representatives was then done by clerks of the court acting as the suitors’ agents, they were very useful and very unpopular. The Commissioners of the Seals and Cromwell regulated both them and the clerks.1 They tried also to regulate counsel’s fees,2 but (because these had risen naturally) without success. They did not perceive how much the Common-lawyers had strengthened their position by their action in the Rebellion. It was recommended in 1645 and 1649, and proposed in 1653, that no one practising at the bar should be a M. P.3 That attempt to revive the Ordinance of 1372 would have been justified if the Lower House had sat as a law court; but, even so, had it not failed, it would have deprived the bar of those political instincts which may impair its scientific perfection, but, at least, keep it in the stream of national life.

On one important point the Republicans were beyond their age. Parliament recommended Cromwell and his Council “to take some effectual advice with the judges for . . . reviving the readings in the several inns of court, and the keeping up of exercises by the students there.”4 Among the Equity judges and those of the Court of Probate and Administration there were some laymen, and there were to have been others in the county judicatures. These were not welcomed by the lawyers,1 and, no doubt, they did some harm; but they were “expert assessors,” and also they brought public opinion to bear, as it is now brought by the Press to bear, upon jurisprudence and legal proceedings. Like the assessors in France and Germany, like those suggested by the Judicature Commission, and even like a jury, they gave the judicium to the lawyers’ jus. That separation of duties, says Mommsen, and the tendency of pleadings to a clear issue, were the distinctive excellences of Roman Law.2 On the abolition of the House of Lords some of the Common Law judges, Hale, Rolle, Saint John, sat in the Commons. The practice of appointing judges “during their good behaviour” was that of Spain and of mediæval England, and was once, at least, adopted by Charles. Under the Commonwealth it was established, and after the Restoration it was by degrees, in the course of a century, established again.3 Up to the time of the Great Rebellion judges had bought their places for fabulous sums, and had received in fees, bribes, and perquisites sums equally fabulous;4 and the inequality of their incomes led to the conflicts of jurisdiction of which I have spoken. The Puritans struck at the root of this: they seized the notion that a law court is for the advantage of the community—not a shop having the monopoly of a certain kind of justice; they laid the foundation of the suitors’ fee fund; they had all fees paid into a public account; they gave the judges fixed, but handsome, salaries; they did their best to check judicial simony.5

Partly principle, and partly necessity, compelled the Puritans to respect scruples about oaths and affirmations. Some of the sects were too strong to be oppressed; and, again, “variers” had the countenance of public opinion as long as they were “pious,” and their variations within limits. A bill drawn by the Committee of 1653 did away with promissory oaths on admission into universities, corporations, societies, companies, and with homage and fealty, and retained only oaths on admission to public offices. This anticipation of Locke and Berkeley and Bentham and even the Victorian legislation was due partly to dissent from the doctrine of the 39th Article, and partly to a sense of the harm done by multiplying oaths.1

But how imperfect was this tolerance! Stat. 1650, c. 27, repealing the Elizabethan statutes which enforced attendance at church, itself enforced attendance at some place of worship. The favour shown to the Hebrews, as much for pecuniary reasons as for religious,2 did not extend to Secularists, Friends, Socinians, Roman and Anglo-Catholics. Such as it was, the Restoration put an end to it, and, in spite of the efforts made in 1668 by Hale and Bridgeman, it but slowly obtained once more. Gould, J., allowed witnesses to hold up their hands after the ’45 and in 1786: so did Wilson, J., and the Recorder of London in 1788; and so in 1791, after some demur, did Lord Kenyon.3 The philosophical views contained in the Report of the Oaths Commission, and more fully in Mr. Denman’s bill, hardly existed under the Commonwealth.4

Legal proceedings and literature were in Latin or in French. The reformers demanded what Coke had advised,1 that they should be in English. The French, they said, was “pedlar’s” and “hotch-potch,” the Latin “barbarous” and “quelque chose,” and the only use of them was to give lawyers a monopoly of advocacy.2 In 1650 and 1651, Parliament, complying with a petition from the army and with the general wish, enacted English should be the language of law, committed to the Speaker, the Commissioners of the Seals and the three Heads of the Common Law Courts the supervision of the translators, and prohibited the use of court-hand. Only the proceedings in the Admiralty Court were to remain in Latin—the successor of Spanish, the predecessor of French—as the diplomatic and international language. In 1651 the Upper Bench made a rule in English, and afterwards, while the Commonwealth lasted, all courts, even those of manors, recorded their proceedings in the vulgar tongue.3

The reporters forewent the use of their “peculiar dialect,” now under protest, evasively, and with regret,4 now with cheerfulness, and even enthusiastically.5 French and Latin were restored with Charles. The Wimbledon rolls were again kept (all but the returns to precepts) in the latter; cases, even those decided under the Commonwealth, appeared “in their native beauty” in the former.6 But in ten years there was a cry for the late convenience;7 and in seventy years an act, bitterly opposed, almost neutralized two years later, and productive of some bad consequences, revived the statutes of 1650 and 1651.1

It is no wonder either that the Republican jurists should have desired a code, or that they should have failed to make one. The outline of a code had been partly and roughly drawn; the need for one was urgent; the necessary science wanting. The outline had been drawn: authorities had been published in great numbers since 1640, some for the first time—writs, original (by Hughes) and judicial (by Brownlow); “Bracton;” “Britton,” Bishop of Hereford, or whoever else; “The Mirror,” in French and in English; Fitz-Herbert’s “De natura brevium;” the last three parts of “The Institutes.” Cases and statutes had been abridged—statutes by Wingate and by Hughes; Coke’s reports by Trotman, Dyer’s by Ireland, Brooke’s by March; while Shepherd had abridged statutes and cases too.2 Digests, more or less systematic, had appeared—Swinburne on “Wills,” Bacon on “Uses,” Wingate’s “Statuta Pacis,” Shepherd’s “Parson’s Guide;” not to speak of Lambarde’s and Selden’s researches, West’s “Symboleography,” Brownlow’s “Declaration and Pleadings.” All these suggested something more, and made it seemingly feasible. “It is fit,” said Sir Anthony Ashley Cooper, “that laws should be plain for the people.”3 To make them plain, John Coke proposed to clear them of everything, “either properly and directly, or collaterally and obliquely, repugnant to the law of God,” a method which he may have pursued in Ireland,4 and which had been pursued in the Judaized code of New England.5 Ten years later Bulstrode wished “to file off the rust” from the laws, and to reduce them “into a sound and solid body:” the task would be heroic, and those who did it the founders and restorers of our laws.1 Parliament, meanwhile, had been less idle than ineffectual; it appointed a Committee of Law Reform; it read the book containing the whole system of the law which that committee composed; it ordered three hundred copies of it to be printed; and, after that, all Cromwell’s persuasion could not induce it to do any more.2 The truth is, that the Dutch or Swedish simplicity which Hugh Peters demanded3 was possible only in the United Provinces or in Sweden, and that the reformers were exorbitant. Still codification was desired. In 1666 a committee was appointed under Clarendon to make a code,4 and Hale’s “Pleas of the Crown,” and his “Analysis of the Civil [rather, of the non-criminal] Part of Our Law,” are torsos of parts of the code of the Commonwealth. On the latter, though neither exhaustive, nor free from cross-divisions, a system might have been built far more palatial and perfect than Blackstone’s; and, comparing those sections of it which correspond with the “Synopsis totius Littleton analytice” (1659), we see how near the Puritans were to that Baconian “reduction and recompilation of the laws” for which we wait. Mr. Fitz-James Stephen contrasts the “Pleas of the Crown” with the “Third Institute,” as a code with a digest; and Professor Amos says that though Hale has not extended his supremacy over the whole see of the Criminal Law, he was peculiarly qualified for the Papal Chair.5 A criminal code is easier to make than a civil, and perhaps more useful: the magistrate is never a more successful schoolmaster than when he teaches from such a textbook; and the value of a civil code to the laity was even more exaggerated under the Commonwealth than it now is.

In what is commonly though too narrowly called Criminal Law the Republicans made few improvements. As to treason and rebellion, that necessity of preserving some constitution which created High Courts of Justice must answer for their proceedings. As to other crimes, reforms were planned, but (so inadequate were conceptions of the dignity and value of the individual) few of these were carried out, and some measures were proposed and contemplated which were retrogressive. In 1648 it was suggested that treason, rebellion, and murder only should be capital, and that other felonies should be punished by fines or by servitude to the person injured.1 The Committee of 1653 proposed to discontinue pressing to death in default of pleading,2 to acquit (without penalty or forfeiture, pardon or deodand) justifiable and excusable homicides, to punish principals in manslaughter and accessories before the fact with judgment of death without forfeiture or corruption of blood, and accessories after the fact with forfeiture and five years’ imprisonment;3 to abolish “clergy;” to repeal the law approved by Selden “of devoting to the flames those wicked baggages who stain their hands with the nefarious murder of their husbands.”4 Then acts were passed—one, embodying another of their proposals, against provocations to duels;5 one against those who encouraged others in extravagance;6 others against cockfights and horseraces.7 But the imaginary offence of witchcraft was left criminal; deer-killing was punished by a fine of £15 or a year’s imprisonment; acts, sinful or vicious rather than criminal, were punished; incest, adultery, and repeated fornication were punished with death; so the Committee were for making bigamy capital, and cutting off the right hand of a murderer before hanging him.1 In 1649 Whitelock inveighed against the inequality of punishment; and in 1656 Cromwell repeated his invective.2 One doctrine of Whitelock’s was accepted by the Committee: it was that criminals prosecuted by counsel should be defended by counsel; that criminals should have copies of their indictments, and that their witnesses should be heard on oath. But it seems to have been thought that criminals had already too many chances, and therefore these rights and that of appeal were denied them.3

The law of marriage, in a country such as this, is almost the groundwork of the law of property. The variety, the occasional contempt of ceremony in which the Puritans indulged, the downfall of that hierarchy which had taken cognizance of matrimonial affairs, made legislation unavoidable. A form of solemnization had been prescribed by the Presbyterian Directory, but was regarded with ridicule by Churchmen, with suspicion by those who prescribed it; others did not regard it at all.4 The Committee of 1653 proposed a new order: it became law that year, and in 1656 ceased to be compulsory, but, as optional, was ratified. It directed three weeks’ advertisement to be given in Church, chapel or market-place of intended marriages; the parents’ or guardians’ consent to be obtained; the form to be a mutual agreement expressed before a justice of the peace: girls below fourteen and boys below sixteen were not to be married.5 That statute unwittingly revived something of the practice of Christian antiquity; then the faithful, though he might hallow his union by the benediction of the Church, yet, hating paganism, and perhaps being of the lower orders, would avoid anything like confarreatio, and, as a Roman citizen, would be bound by the civil contract only; it also anticipated our statute of 1837, and even the French codes.1 In accordance with it, the daughter of Saint John, C. J., was married in his presence; and in actions of debts and of ejectment marriages between Friends were held valid. But at the Restoration the greater part of these irregular rites were and had to be confirmed.2 The statutes of 1645 and 1653 improved also on the Tudor and Stuart registration system; that system did officially what private records (such as the Liber obitalis at Queen’s College, Oxford) had long done; it chronicled the performance of baptisms, weddings, and burials. The Republican method chronicled the occurrence of the birth, the making of the marriage contract, but the burial—not the death.3 The statute of 1650 against incest being penal, marriages took place within degrees which it did not prohibit, though the law existing did: many of these were pronounced invalid after the Restoration.4 Women were deservedly influential among the Republicans; men’s extravagance was restrained by statute; a bill intended to restrain women’s, and much needed, was thrown out; and, not to speak of other movements in their favour, the protection given under Charles II. by Hale and others to wives against their husbands.5

That men’s titles to their estates in land should be thoroughly known had become of great importance. Many an acre had been sequestrated and brought into the market; the market was full of powerful capitalists. Never had registration been in greater request. As long as landed property was transferred by physical delivery, so long its transfer was notorious to those to whom it was likely to pass.1 And though that form, like mancipatio in Rome, was abandoned on account of its awkwardness, there was a custom of selling “book-land” at the sheriff’s county court, and of recording the sale at the nearest monastery in a cartulary or in a m. s. of the Gospels or in a “land-book,” and these were sometimes placed on the Altar. Such a register, but of the house’s own title, is the Liber Evidentiarum of S. Augustin’s at Canterbury.2 Analogous to these records, dating from the earliest English times, were the court rolls of manors, as those of the manor of Taunton and Taunton Deane. But now monasteries had been swept away; the Statute of Inrolments did not apply to counties palatine and to many corporate towns, and was not regarded in one case out of an hundred.3 How many law suits were due to the want of a land registry we know from Hobbes4 and we might guess from the establishment of such institutions for soldiers’ debentures, and for the sale of Church, Crown, and Royalist property.5 There were even proposals for county registeries: sales not recorded in them within a certain time were to be void; land, the sale of which was so recorded, was not to be subject to any incumbrance. But, because the Committee could not, after trying for three months, settle what an incumbrance was, the proposal fell to the ground, and registration was left permissive, that is, nugatory. “The English people,” said Cromwell, “will take Ireland, which is as a clean paper in that particular, for a precedent; and when they see at how easy and cheap a rate property is there preserved, they will never permit themselves to be cheated and abused as they now are.”1 And yet the advocates of registration had not wholly failed. The Bedford Level was a creation of the Republicans; to them it owes its registration system:2 to them also are due, however remotely, the acts for Yorkshire, and Kingston, and Middlesex, the Victorian legislation for Ireland, the permissive statutes of 1862.3 Pierrepoint objected to their schemes, the injustice done to persons nominally entitled, and the expense.4 Hale was on the other side.5 But a student of the history of land registries in England may well doubt whether any one interested in land desires them. As Hale said, every feature of the title must be inrolled, “as well for the time past as for the time to come; otherwise the plaister is too narrow for the sore . . . for, if any one leak be left unstopped, the vessel will sink as if more were open.”

The law of personal property was at this time more important than that of real. Personal property, when employed in agriculture, had still a far higher relative value than it now has;6 and commerce was on the rapid increase. Cases like Twyne’s7 of mercantile immorality, connoting mercantile enterprise, complicating law which otherwise might have been as simple as the Swedish;1 the growth of banking;2 the fact that the Jacobean and Caroline exactions were so long borne; the evidences of Bacon, Mun, and Clarendon3 —all convince us of this. One result of that increase was that the mantle of Equity thrown by Ellesmere over the mortgagor was taken from him. Another was that debts, hitherto assignable by and to the Crown only, were made assignable by and to any one; hence that development of the law as to bills of exchange (especially necessary to commercial intercourse when the exportation of the precious metals was prohibited) which had taken place in Spain, took place in England.4 Then, besides the minor courts of which I have spoken, means were proposed of recovering small debts and debts due from corporations.5 Again, notwithstanding the jealousy of monopolies, inventors received patent rights, even if they did not come within the statute of James.6 The Statute of Fraudulent Devises was forestalled; and even that of Frauds and Perjuries, suggested by Hale to Nottingham, brought in by him, enlarged and revised by Guildford and Jenkins, may well have been planned by the Committee of 1653.7 Lastly, bankruptcy acts protected the unfortunate and sent the dishonest to be tried by a jury; imprisonment for debt, though no doubt unnecessarily cruel, and bitterly attacked, particularly by prisoners, was well and successfully defended.8

The frequency of sales of confiscated land, the unwillingness of purchasers to take a parliamentary title, the outcry against feudal and manorial rights, drew men’s eyes to the law of realty. “It were convenient,” wrote an essayist in 1648, “that there might be no estate but absolute, for life or inheritance, without conditions and entayles, whether given by will or purchased by deed in writing; and this would shorten all suits about estates.” Such a change, though considered, was never brought about,1 and another proposal of the essayist, that all customs should be assimilated, was rejected, even as to the customs affecting the inheritance of the land. But every temptation and security was offered to purchasers.2 James had consented to the sacrifice of many feudal incidents on condition of being repaid by fee farm rents. Gustavus Adolphus had abolished purveyance in Sweden; the Republicans abolished it in England, and, with it, billet and free quarter. They put an end to the Courts of Wards and Liveries, to wardships, liveries, primer seisin, ouster-le-main, and charges incident to these, to homage, to fines, licenses, and seizures for alienation of lands held by tenure in chief; they turned into common socage all higher tenures. The profits to the State from these were replaced by a real land-tax, itself replaced after the Restoration by an increase of the Republican excise.3 Then it was proposed to take away fines and recoveries, and to compel by simple means the payment of rent.4 Trusteeship to preserve contingent remainders was invented to evade the confiscatory acts; as from the statutes against Romanists so much else in conveyancing flowed.5 It would have been rash to disregard the claims of “the common people,” as the copyholders (in opposition to the gentry and the freeholders) were then and long afterwards called,1 for these had been led to think that the success of the Parliament would relieve them of their “Norman” lords.2 Accordingly, it was proposed to ascertain arbitrary fines upon the descent and alienation of copyholds, and to place the conditions of the tenure beyond the discretion of the homage.3 Many copyholds were actually enfranchised; but many, even of those confiscated, were still demised by copy of court roll and not otherwise. Commonable rights were not so far recognized that commoners were allowed to break up common land.4 The allotment system instituted under Henry VII, carried out under his grandchildren, recommended by Bacon, but already decaying, was partly restored, and there were fewer “silly” cottages.5

But, after the Restoration, Parliament continuing to the greater tenures the relief afforded to them under the Republic, but substituting an excise for a land-tax, left the lesser tenures exposed to the old abuses. That, as North says, “was somewhat unequal.”6

What would have been the economical effect of these changes? Would Coke’s copyholder,7 if his land, enfranchised during the Commonwealth, had not been reinstated at the Restoration, have escaped being bought up by capitalists? Would a land registry have preserved or aided to extinguish a peasant proprietary? Would the annihilation of equities of redemption have favoured any but the rich?

If we contrast the legislation of the Commonwealth with that of Frederick the Great, or with that of the French Revolutionists, or even with our legislation for India, we are struck by its poverty of principle, by its abundance of anomalies. How shall we account for this? The English had more learning than thought. They were not sufficiently nor critically acquainted either with Roman Law or with Comparative Nomology. They were illuminated, not by Philosophy, but by a misconception of what had been the religion of the Hebrews. They were slightly instructed in Philology (as opposed to Latin Literature), still more slightly in Natural Science, Political Economy, and other sciences and quasi-sciences ancillary to jurisprudence. They had chaos before them, and they had not, except in Ireland, “a clean paper” to work upon. Such a fair field lay in Prussia,1 in France, in India, and lies in Russia now. We in England have the materials which they had, but better digested; we have those sciences. Philology has redeemed Law from barbarism2 ; Political Economy and Natural Science have supplied it with principles. No solicitor-general and chief justice would propose John Coke’s theocratic reform of our statutes and leading cases. Not an Hale only, but ordinary students in our universities, read Roman Law by the light of Roman History and the History of Philosophy.3

We look at the systems of the Hebrews, the Spaniards, the Dutch, the Swedes, not with the contracted vision of the Republicans, but comprehensively, as critics should. And yet—I mean, and therefore—we cannot sneer with Blackstone at the crude and abortive schemes for amending the laws devised in the times of confusion.

[1 ]This essay is taken from volume III, pp. 567-601, of “Papers read before the Juridical Society” (London: Wildy and Sons). It is without date, but was read in 1869 or 1870.

[2 ]Barrister-at-law, Fellow of Owen’s College, Oxford.

With the above Essay may be compared the following: The Constitutional Experiments of the Commonwealth, by Edward Jenks (1890; Cambridge, University Press); The Interregnum, by F. A. Inderwick.

[3 ]St. 1654, cc. 8, 9, 10: Whitelock, 517, 532, 632: “The decisions of the Engl. judges during the ursurpation,” etc. Cp. Bacon, “Certayne articles touching the Union . . . of Engl. and Scotl.” [M. s. Qu. Coll. Oxf. 32.27 (D. 2. 129, [194])].

[4 ]Stt. 1648-9, c. 17; 1656-7, cc. 6, 18; 1659, July 12: Comm. Journ.: Whitelock, 377, 569, foll.: 6 Thurloe, 107, 668: Ludlow (246).

[5 ]J. Coke, “Unum necessarium:” Stt. 1649, May 7: 1653-4, c. 20: Whitelock, 384, 531. Cp. St. 43 Eliz. c. 2: Child, “Proposals for the relief and employment of the poor” [11 Somers’s Tracts, 606].

[6 ]Comm. Journ. 1649, Mar. 21; 1657, June 9: Stt. 1654, c. 51; 1656, c. 30.

[1 ]J. Coke, “The vindication of the profession and professors of the Law,” A 4: Bacon, “Works” [e. g. vol. 10, ed. Spedding: essay “of Judicature:” “De Augm. Sc.:” “Henry VII.”]

[2 ]St. 16 and 17 Car. i. cc. 10, 11, 15, 16, 28: Comm. Journ.: Clar. bks. 3 and 4.

[1 ]Stt. 1648-9, cc. 6, 10: 1650, c. 1, Apr. 2, cc. 24, 40; 1651, cc. 8, 20; 1653, c. 25; 1653-4, c. 4; 1654, c. 27; 1656, c. 3; Comm. Journ.: “State Trials:” Cock, “English Law” (1651), p. 74: Whitelock: Clar. bks. 11, 13, 14: Spence, pt. 2, bk. 1, c. 4, and bk. 4, c. 1. For the reference to Spence I have to thank Sir G. Young.

[2 ]“Divers officers and soldiers” call Cromwell “the first Christian King and Emperour” [“A supply to a draught of an act,” etc. (1653). p. 22]. Cp. “The Homilies” (1547), bk. 1, serm. 10, pt. 3. I am indebted to the Rev. J. R. Green for reminding me that Archbp. Heath, in 1559, spoke of Elizabeth as “our Emperour and Empress” [Freeman, 1 “Norman Conquest” 161, 626].

[3 ]Selden, “Janus Angl.” bk. 2, § 9: Warr, “The corruption and deficiency of the laws of Engl.” etc., cc. 3 and 4: Winstanly, Barker, and Star, “An Appeal to the H. of C. etc., pp. 18, 19: Jones, “The new returna brevium,” etc., passim: Thierry, “The Conquest of Engl.” etc., conclusion, § 4: Spelman, “Of the Terms:” St. 16 Car. i., c. 6.

[4 ]“Examen legum Angl.” (1656): Cole, “A rod for the lawyers” (1659). But see “A vindication of the laws of Engl. as they are now established.”

[1 ]6 Somers’s Tracts, 179: St. 1653, c. 4: Resolution, Nov. 7: Stt. 1654, c. 53; 1656, c. 10.

[2 ]North, “Guilford” (1742), p. 99. See Mr. Commissioner Hill’s “Letter to Thomas Pemberton,” etc. (1838), pp. 27-38: Bacon, “Works,” vol. 10, p. 367 (ed. Spedding): 12 Rep. 109: 4 Inst. 99: Jones, u. s.; and other works, passim.

[3 ]See its draughts in 6 Somers’s Tracts, 211 foll. ridiculed in “The proposals of the Committee for regulating the law,” etc. [ibid. 528-32], and sensibly criticized by the army in “A supply to a draught of an act,” etc. (1653).

[4 ]Wynne, “Serjeant at Law:” Manning, “Serviens ad Legem:” 10 Bing. 571: 1 and 6 Bing. n. c.: St. 9 & 10 Vict. c. 54: 3 C. B. 537.

[1 ]Jones, “The new returna brevium,” etc. Hudson, 25 “Archaeol” 349, foll.: J. Coke, “A vindication,” etc. “An exact relation of the proceedings and transactions of the Parliament which began July 4, 1653, by a member thereof.”

[2 ]Orders in Beames: Jones, “Judges judged,” etc., p. 92.

[3 ]Whitelock, 519, 548: Jones, “The new ret. brev.” etc. A 6: 6 Somers’s Tract, 202, foll.

[4 ]Stt. 1654, c. 44; 1656, c. 10: Whitelock, 621-7. Cp. 4 Comm. Journ. 701.

[1 ]Carey, “The present state of England” (1627): “Saint Hilary’s tears” (1642 or 1643): 2 “Hudibras” 3, 325-30, and Grey’s n.: Bacon, “Arguments against the Bill of Sheets” [“Works,” vol. 10, p. 287 (ed. Spedding), cp. vol. 8, p. 226]: Williams, “Real Property,” pt. 1, c. 9.

[2 ]“A noble person,” in Burnet’s “Hale,” pp. 113 foll. (1682).

[3 ]Cp. Selden, “Table Talk” and Whitelock, 378, with Hooker [5E. P. 9] and Hobbes, “A dialogue between a philosopher and a student of the Common Laws of Engl.” And see Smith, 1 Ex. Dev. 534 n. t. (1844); 2 Swanston, 414; 3 De G. F. and J. 238; Best, 1 Jur. Soc. Pap. 399, foll.; Marshall, ib., 2, 283, foll.

[4 ]Stt. 16 Car. i. c. 11; 17 Car. i. c. 28 (repealed by 13 Car. ii. c. 2); 1646, cc. 64, 66; 1649, c. 24: Clar. bks. 3, 4.

[5 ]1 “Hudibras” 2, 531; 3, 2, 544; and Grey’s notes.

[1 ]Ib, 2, 1, 870: Proceedings in the Bp.’s and Archdn.’s Cts., Oxf.

[2 ]13 Rep. 24: 12 Rep. 78 and 3 Ist. 147: 4 Inst. 336; cp., as to Sir John Bennet, Willet, “Synopsis Papismi” (Charitable work done in the U. of O.) and Macray, “Annals of the Bodl.,” p. 37.

[3 ]Froude, c. 24: Hallam, cc. 2, 4, 8: Steph., “Comm.” intr. § 1: Clar. u. s., Burton, “Dairy,” 4 Nov. 1654: Whitelock, 655: “Merc. Pol.,” No. 238.

[4 ]Stt. 1643, May 17 and 20, c. 10; 1644 Nov. 5. Cp. the permission given by St. 1 Eliz. c. 1, §§ 39-43 to proceed with appeals to the Court of Rome in the cases of Tyrril v. Chetwood and Wife and Harcourt v. Tydell.

[5 ]See his “Certain considerations touching the better pacifications and edification of the Church of England.”

[6 ]Statt. 1644, c. 45, 1647, March 24, c. 85; 1648, cc. 110, 121, 1649, cc. 24, 31; 1650, c. 5; 1654, c. 45; 1656, c. 10: Harwood v. Paty, Hardres, 63: Jones, “The crie of bloud,” p. 16; “A case concerning tythes;” Winstanly, etc. u.s. pp. 18, 19: W[m.] S[hepherd], “The Parson’s Guide” (1654), c. 8.

[7 ]Bacon u. s.: Selden, “Eccl. Jurisdiction of testaments.” (c. 1626).

[1 ]Yelverton, 92: 9 Rep. 37. Cp. 5 Rep. i, xvi., xvij., 74: 9 Rep. 48.

[2 ]Selden, 1. c. pt. 1, c. 6.

[3 ]“An experimental essay,” etc. p. 3: Statt. 1653, c. 2, Dec. 24; 1654, c. 4: Burton, “Diary,” 1656, Dec. 3 and 24: Wynne, Jenkins, 2, 695.

[4 ]St. 1654, c. 44, § 48: “Exam. legg. Angl.,” c. 14, §§ 31, 33, 34: Rep. on Eccl. Cts. (1832), P. 39.

[5 ]“Exam. legg. Angl.,” c. 14, § 27; p.s. § 69: 3 “Hudibras,” 1, 623-30. The attacks made in “A plea for ladies,” etc. on Milton’s book about divorce, which he defended by translating Bucer’s, and by writing “Colasterion” and “Tetrachordon,” prevented thorough legislation.

[6 ]Wingate, “Maxims of Reason,” 1, 4.

[7 ]“The Vindication,” etc., p. 83.

[8 ]As Lewes, Principal first of New Inn Hall, and then of Jesus Coll. Oxf., appointed by Lord Clinton, in 1558, Judge of the High Ct., of Admiralty [Ms. among the records of the court: Wood, 1 “Fasti Oxon.” 127].

[1 ]See among other Stt. 1648, c. 112; 1648-9, cc. 13, 14; 1640, cc. 21, 22, 23, 38; 1650, cc. 7, 33, 48, 50; 1651, cc. 3, 4; 1654, cc. 21; 1656, c. 10.

[2 ]Williams and Bruce, “Admiralty Jurisdiction and Practice,” intr. pp. 13, 14: Browne, “Civil Law,” vol. 2, c. 1.

[3 ]Statt. 1649, cc. 21, 38; 1650, c. 7.

[4 ]Stt. 16 Car. i. c. 5; 17 Car. i. cc. 30, 32; 1647, cc. 78, 101; 1648-9, cc. 12, 15; 1649, cc. 21, 73; 1650, c. 7; 1651, cc. 21, 29; 1652, cc. 15, 36; 1653, ord. 21; 1654, c. 13; 1656, c. 24.

[5 ]Bla. 1 “Comm.” 418: Adam Smith, “W. of N.” bk. 4, c. 2, and McCulloch’s 12th n.: Campbell, “Brougham,” c. 8.

[6 ]1st. Rep. of the Judicature Commission (1869), note.

[1 ]Bacon, “Certayne articles touching the Union of Engl. and Scotl.,” u. s.

[2 ]St. 1656, c. 24. Cp. d’Israeli, “Cur. of Lit.” (“Building in the Metropolis,” etc., and “Royal Proclamations”): Hallam, C. 8: Evelyn, “Fumifugium:” “The Apology for the Builder” (1685).

[3 ]Robertson, “Charles V.,” notes: Allen, “The Royal Prerogative in Engl.,” pp. 100 foll.: Stubbe, “a select senate” (1659).

[4 ]Carey, “The present state of Engl.:” Jones, “Every man’s case,” p. 17.

[5 ]Jones, “Eight observable points of law:” “An experimental essay, touching the reformation of the laws of Engl.:” Warr, “The corruption and deficiency of the laws of Engl.,” cc. 3, 4: Jones, “Judges judged,” etc.; “the new returna brevium:” “Exam. Legg. Angl.” c. 13: Lechford, “Plaine dealing,” p. 25.

[6 ]These manors were created under the confiscatory statt. of Eliz., under “The Adventurers Act.” (17 Car. i. c. 34), and under St. 1656, c. 23. Cp. St. 37 Hen. viij. c. 2; and see Kingston’s case (1 Ridg. 384, Vern. and Scr. 135), and Ormond’s (St. 8 & 9 Will. iij. c. 5; 2 Bro. P. C. 256), and 2 T. R. 425, 705. They were perhaps created also by patent as in Delacherois’ case (11 H. L. C. 62). They had no freeholders nor copyholders.

[1 ]Earle, “Miscrocosmographie” (“and aturney”): Clar. bk. 9: Hudson, u. s.: J. Coke, “The Vindication,” etc., p. 25: Orders in Beames: St. 1654, c. 44: Oglander, “Mem. of the Isle of Wight:” “Exam. Legg. Angl.,” and Cock, u. s.

[2 ]“Some advertisements for the new election of burgesses for the H. of C.:” J. Coke, l. c.: Clayton, “Reports and pleas of assises at Yorke,” pref.: 6 Somers’s Tracts, 184, 189: St. 1654, c. 44.

[3 ]“Some advertisements,” etc.: Whitelock, 430-3: 6 Somers’s Tracts, 184.

[4 ]Burton, “Diary,” 1657, June 26: “Merc. Pol.,” No. 309. Cp. 4 Rep. xviij., xix.: North, “Guilford,” p. 22: Burnet, “Hale,” etc., on “put-cases” and “mooters”: Smith, 1 Jur. Soc. Pap., 385, foll.

[1 ]Clayton, l. c. But see a petition against the monopoly of lawyers (British Museum 190, g. 12),45 ) and the 1st Rep. of the Judicature Commission, p. 14.

[2 ]“Hist. Rome,” bk. 2, c. 8, n.

[3 ]See Walter’s case (Whitelock 11, 16: Kal. St. Pap. [Dom. Ser.], 1629-31, pp. 76-8), and Rolle’s, Whitelock’s, Keble’s l’Isle’s, Hale’s. See also 1 Sid. 2: St. 12 and 13 Will. iij. c. 2, § 3: Hallam, c. 15 (compared with Macauley, c. 18): St. 1 Ann. s. 1, c. 8: 2 Ld. Raym. 747: St. 1 Geo. iij. c. 23: Blackstone in Steph. “Comm.,” bk. 4, pt. 1, c. 6.

[4 ]As Vernon, J.; Richardson, C. B.; Cæsar and Buck: Jones, “The new returna brevium,” pp. 23, 30.

[5 ]Comm. Journ. 5,528; 7,670: 6 Somers’s Tracts, 186, 189: Whitelock, 382, 680: Cock, “Christian Government,” p. 186.

[1 ]Cp. 6 Somers’s Tracts, 181, with Bps. Burnet and Tomline on the 39th Article, and with St. 17 & 18 Vict. c. 71, §§ 43, 44. And see “Hudibras,” 1, 2, 1112, and 2, 2, and “The Lady’s answer to the Knight,” 183, and Grey; “Exam. legg. Angl.:” Sanderson, “de Jur. Prom. Obl.,” s. f.

[2 ]Brett, “Narrative of the proceedings of a great council of Jews:” Dury, “A case of conscience:” “A narrative of the late proceedings at Whitehall concerning the Jews:” Ben Israel, “Vindiciae Judaeorum:” Lingard, vol. 8, c. 7: Hallam, c. 11: Carlyle, “Cromwell,” pt. 9. Contrast Kal. St. Pap. (Dom. Ser.), 1660-1, p. 366. There were, of course, undisguised Jews in England before Cromwell connived at their return [Smith, “Willet,” (1634)].

[3 ]Mildrone’s Case, 1 Leach, C. L. 412: Walker’s, id. ib. 498: Mee v. Reid, 1 Peake, 23. Cp. Reilly, 1 Jur. Soc. Pap. 435, foll., with Anstey. ib., 371, foll.

[4 ]But see Cock, “Christian Govt.,” p. 175.

[1 ]4 Rep. xx., xxi.: 1 Inst. xl., xli. (citing St. 35 Edw. iij. c. 5).

[2 ]Jones, “Eight observable points of law,” §§ 4, 8; “The new ret. brev.,” pp. 7, 15, 21-3; “Judges judged,” etc., pp. 107, 114, 115; “Jurors judges of law and fact,” pp. 4, 5, 51, 77, 79, 86: Warr, “The Corruption,” etc., cc. 3, 4: Winstanly, etc., u. s., pp. 18, 19: Cock, “Christian Govt.,” pp. 133-5.

[3 ]Stt. 1650, c. 37; 1651, c. 4: followed up by Stt. 1654, c. 28; 1656, c. 10: Whitelock, 384, 475-83: Style, 261: Wimbledon rolls, Nos. 12-15; roll of misc. scripts; bks. 7-9: “Merc. Pol.,” No. 19.

[4 ]Bulstr. u. s.: Noy [?], pref.: Clayton, u. s.: Hetley, pref., 26, 36.

[5 ]March, pref.: Bridgeman, pref.: Leonard by Hughes, u. s.

[6 ]Yelverton, pref.: 2 Siderfin.

[7 ]“An appendix by way of dialogue [to the 2nd part of ‘The people’s ancient and just liberties asserted in the proceedings against and tryals of Thomas Rudyard, Francis Moor,’ etc.]” (1670): North, “Guilford,” p. 22.

[1 ]Stt. 4 Geo. ii. c. 26 (see 7 C. B., 462: Willes, 601); 6 Geo. ii. c. 14, §§ 3, 5 (cp. Noy [?], pref.): Bl. 2 “Comm.,” 323: Smollett, bk. 2, c. 4, § 25: J. Wesley, “The doctrine of original sin,” 1, 2, 9.

[2 ]Add “Special and selected law cases concerning persons and estates, collected out of the Reports and Year Books of the Common Law of Engl.” (1641), and Finch’s “Law” condensed by Wingate.

[3 ]Burton, “Diary,” 1657-8, Febr. 2, Rutt’s note.

[4 ]“The Vindication,” etc., pp. 25, 26. Cp. “Exam. legg. Angl.,” cc. 11; 12; 14, § 13. Coke, though his “Vindication” is flattering and cowardly, was praised by Cromwell for his conduct in Ireland and died bravely [Ludlow, 123 (137), 398 (407)].

[5 ]Lechford, “Plaine dealing,” pp. 26, 27, cited in “Exam. legg. Angl.,” c. 14, § 3. Even then English Puritanism looked to America.

[1 ]1 Bulstr., pref. Cp. “An experimental essay,” etc. (1648).

[2 ]Whitelock, 519: Carlyle, “Cromwell,” Speeches 2 and 5: “A Vindication of the laws of Engl.,” u. s.

[3 ]Peters, “Legacy” (in Harris 1 “Lives,” xxv., quoted by Rutt., u. s.): Whitelock, 430-3, 521, 601.

[4 ]Comm. Journ. 1666, Oct. 5.

[5 ]Austin, “Lectures” (1863), vol. 1, p. cix.; vol. 3, p. 279: A. Amos, “Ruins of the time exemplified in Sir Matthew Hale’s ‘Hist. of the Pleas of the Crown’ ” (1856), pp. 1, 3: Stephen, “Criminal Law,” c. 2: Bacon, “Certayne articles,” u. s., etc.

[1 ]“An experimental essay,” etc.

[2 ]6 Somers’s Tracts, 234, 235: “Exam. legg. Angl.” c. 11, § 9. Cp. Stt. 12 Geo. iij. c. 20; 7 and 8 Geo. iv. c. 28.

[3 ]6 Somers’s Tracts, 235.

[4 ]6 Somers’s Tracts, 236: 6 Rep. pref. (quoting Cæsar, 6 B. G. 19): Selden, “Janus Augl.,” bk. 1, c. 11. Cp. Statt. 30 Geo. iii. c. 48; 54 Geo. iii. c. 146; 9 Geo. iv. c. 31.

[5 ]6 Somers’s Tracts, 188: Statt. 1654, c. 36; 1656, c. 10.

[6 ]St. 1656, c. 26: Comm. Journ. 1650, June 7: 3 Parl. Hist. 1346.

[7 ]Statt. 1654, cc. 2, 39: Grey’s note on “Hudibras,” 1, 1, 800.

[1 ]Statt. 1652, c. 27 (cp. 14 “St. Tr.” 639 foll., 690 foll.); 1651, c. 12: 6 Somers’s Tracts, 190, 235, and statutes cited above, pp. 589, 590: “Exam. legg. Angl.” c. 14, §§ 29, 32.

[2 ]Carlyle’s “Cromwell” (speech 5): “Exam. legg. Angl.” c. 11.

[3 ]Whitelock, 433; “Life,” 109-120: 6 Somers’s Tracts 235: Hutton, 133: “Directions for justices of the peace,” No. 7 (prefixed to Kelyng): Mr. Commissioner Hill, “The repression of crime” (1857), pp. 25-41.

[4 ]St. 1645, c. 51: Grey on “Hudibras,” 3, 1, 888. Cp. Nelson, “Bull,” § 9: Cock, “Christian Govt.,” p. 52.

[5 ]Stt. 1653, c. 6; 1656, c. 10: 6 Somers’s Tracts, 179. Cp. the New Engl. law (Lechford, l. c. p. 39).

[1 ]Milman, “Latin Christianity,” bk. 3, c. 5: “Manuale Ebor.” and “Man. Sarisb.:” Dr. Goldingham in Bunting v. Lepingwell, Moore, 170: Chaucer, “The wife of Bathe’s prologue:” Menochius, “De praesumptionibus” (1595), 3. 2. 7, et 11 cc.: Dalrymple v. Dalrymple, 2 Hagg. C. R. 64, 67-70: Jurieu, “Hist. Counc. Trent,” bks. 7 and 8: Stt. 6 & 7 Will. iv. c. 85; 10 & 11 Vict. c. 58: Le Code Civil, §§ 75, 76, 165: Le Code Penal, §§ 199, 200. The ring is a trace of coemptio: cp. Benjamin, “contract of sale.”

[2 ]1 Hagg. C. R. app. 9 n.: Burnet, “Hale:” North, “Guilford:” Stt. 12 Car. ii. c. 33; 13 Car. ii. c. 11. And see St. 6 & 7 Will. iii. c. 6, §§ 63, 64.

[3 ]Cp. the 70th Canon with 6 Somers’s Tracts, 179; Stt. 1645, c. 51; 1653, c. 6, §§ 4, 10, 11: and these again with St. 30 Car. ii. c. 3, and the acts since 1820. St. 1653 c. 6, extended to Ireland.

[4 ]See Harrison v. Burwell: Hill and Wife v. Good: Watkinson v. Murgatroyd; Collet v. Collet; Hinks v. Harris. Cp. Selden, “De successionibus,” etc., cc. 14, 15; “Uxor Ebraica,” bk. 1, cc. 12-15.

[5 ]2 Lev. 128; 1 Str. 477; 1 Sid. 113, 116: 3 Keble, 433. Cp. St. 1656, c. 26, with “Parl. Hist.” 1650, June 7.

[1 ]1st Rep. of the Registration and Conveyancing Comm. (1850) pp. 3, 4; app. 6; Rep. of the Registration of Title Comm. (1857), p. 2; Steph. “Comm.” 2, 1, 17, 20: Williams, 1 Jur. Soc. Pap. 45; 2, 589; Ludlow, ib. 2, 140.

[2 ]Hickes to Shower, “Dissertatio epistolaris,” p. 9 (1703) Brit. Mus. Arundel Mss. 310. The inventories or “stars,” perhaps the same as shetarim, which Richard I. made the Hebrews keep of their debts, mortgages, lands, houses, revenues and possessions, were rather part of an apparatus for extortion than registers of title. See Roger of Hoveden, “Annales,” pars post., Riv. prim., capitula de Judaeis; Selden, “Of the Jews sometimes living in Engl.: “Du Cange,” sv. “starrum:” Steph. “Comm.” 6, 14, 3, n.

[3 ]Sanders, 2 Uses, 66: Pierrepoint, “A treatise concerning registers,” etc. (c. 1660). Was he the Protector’s friend (as to whom see Carlyle, “Cromwell”)?

[4 ]“A dialogue between a philosopher and a student of the Common Laws of Engl.” (of Courts): “Exam. legg. Angl.” c. 14, § 35: Cock, “Christian Govt.” p. 171: Grey on 3 “Hudibras,” 1, 1519, 1520.

[5 ]Stt. 1646, c. 66; 1647, c. 75; 1648, c. 113; 1649, cc. 24, 42, 76; 1650, cc. 29, 30, 47; 1651, c. 10; 1652, cc. 6, 16, 23, 31; 1653, c. 10.

[1 ]7 Comm. Journ. 67, 100, etc.: Ludlow, 123 (137), 165 (184), 398 (407) St. 1653, c. 10. Cp. G. Smith, “Irish Hist. and Irish Character,” s. f.

[2 ]Statt. 1649, c. 29; 1654, c. 20 (cp. c. 57); 1650, c. 10; 15 Car. ii. c. 17 (cp. 10 Sim. 127): Dugdale, “Hist. of Imbanking,” etc., cc. 32-41, 54 (1662): Carlyle “Cromwell.”

[3 ]With St. 25 and 26 Vict. c. 53 cp. Bradish v. Ellames 10 Jur. (N. S.)

[4 ]“A treatise,” etc. u. s.

[5 ]“A treatise showing how useful . . . the enrolling and registering of all conveyances of lands may be,” etc. Cp. Philpot, “Reasons and proposals for a registry,” etc. (1671); Adam Smith, “W. of N.,” book 5, c. 2, pt. 2, app. to articles 1, 2: Mill, “Pol. Ec.” bk 5, c. 8, § 3.

[6 ]Prof. Rogers, “The laws affecting landed property” (1869), p. 11.

[7 ]3 Rep. 82 (“quaeritur ut crescant tot magna volumina legis: in promptu caussa est; crescit in orbe dolus”).

[1 ]Whitelock, 430-32; 601.

[2 ]“Exam. legg. Angl.” c. 14, § 39: Clar. “Life,” 3, 7: St. 22 and 23 Car. ij. c. 3, § 2.

[3 ]Bacon, “Advice to Sir G. Villiers” (1615-16): Mun. “Engl. treasure by foreign trade” (c. 1625): Clar. bk. 1.

[4 ]Breverton’s Case, Dyer, 30 b.: Rolle, “Abr.” (action sur case [V] 60, 61): Stt. 1646, c. 65; 1649, c. 24 (Scobell [1658], pt. 2, pp. 23, 28): 6 Somers’s Tracts, 187. But see Mayor, “Baker’s ‘Saint John’s Coll., Cambr.’ p. 383.”

[5 ]6 Somers’s Tracts, 184, 187.

[6 ]Stt. 1650, c. 39; 1651, c. 2.

[7 ]6 Somers’s Tracts, 186: St. 1654, c. 25. Cp. Stt. 29 Car. ii. c. 3; 3 & 4 W. & M. c. 14: and see Benjamin, “Contracts of Sale,” bk. 1, pt. 2, c. 1 (where read 5 East, 17, and Wynne, “Jenkins,” I, liij.); Gilbert, 171.

[8 ]Statt. 1653, c. 13; 1654, c. 41: Jones, “The new ret. brev.” p. 11; “The peace of justice” p. s.; “Judges judged,” etc.; “The crie of bloud;” “Every man’s case,” etc.: petition to Cromwell from the prisoners in the Fleet against oppression [Brit. Mus. 190, g. 12121]: “Reasons for the continuance of the process of arrests,” etc. (c. 1651). Hugh Peters’s “Good work for a good magistrate” was answered by Vaughan [Jones, “The crie of bloud,” A 2].

[1 ]“An experimental essay,” etc., u. s. Cp. 6 Somers’s Tracts, 182: “Exam. legg. Angl.” c. 11, §§ 22, 23.

[2 ]Stt. 1642, c. 4; 1646, c. 67; 1647, c. 124; 1648, c. 122; etc.

[3 ]Bacon, “Works,” ed. Spedding, vol. 10, pp. 178 foll., 266 foll., 304, 305: Stt. 1643, c. 19; 1645, c. 59; 1646, Feb. 24; 1647, c. 92; 1649, c. 25; 1652, c. 14; 1654, c. 9 (abolishing wardship, etc., in Scotland); 1656, cc. 4, 7, 10,—25 St. 1656, c. 4, especially: 1 Bl. “Comm.” 288, 319. Cp. the Statt. of 12, 13, 14, and 15 Car. ii.

[4 ]6 Somers’s Tracts, 182, 183.

[5 ]Williams, 1 Jur. Soc. Pap. 54, 55: Davidson, “Precedents,” intr. c. 1: Prof. Rogers, u. s. pp. 9, 10.

[1 ]Winstanly, Barker and Star, u. s.: Foote, “The Mayor of Garratt,” 2, 1. Sheridan, “A trip to Scarborough,” 5, 2.

[2 ]Winstanly, etc., u. s. Cp. Cock, “Engl. Law,” p. 48; Thierry, u. s. Absurd as it was to call the Royalists “Norman,” still in that party were probably most of the lords of manors. Lambert was Lord of the Manor of Wimbledon during the Commonwealth.

[3 ]6 Somers’s Tracts, 183: “Exam. legg. Angl.” c. 14, § 36.

[4 ]Winstanly, etc., u. s.: St. 1646-7, c. 72: Cock, “Christian Govt.” p. 174.

[5 ]Bacon essay “of the true greatness of kingdoms and estates;” “Henry VII.;” speech of naturalization (1607): “An experimental essay,” etc., u. s.: “The Pall Mall Gazette,” No. 1286.

[6 ]North, “Guilford,” pp. 23, 24, 140, 241. Contrast Cock, “Christian Govt.” p. 170.

[7 ]Co. Cop. in Williams, “Real Property,” pt. 3.

[1 ]See Carlyle, “Frederick,” 11, 1; 16, 1, 2, 4, 8.

[2 ]Cp. “praebendarius, qui praebet auxilium episcopo” [E. Coke], “qui praebendam suscipit” [Du Cange]: and see Hamilton, “Discussions,” (1853), pp. 344, 345: Phillimore. “Roman Law,” pt. 1, c. 1: Doellinger, “Universities past and present.”

[3 ]Burnet, “Hale,” pp. 17, 18: cp. Leibnitz, “New methods of teaching and learning law” (1667), and “Plan for rearranging the Corpus Juris” (1668); and see the lines beginning, “In Institutis comparo vos brutis,” quoted by Lord Westbury, 1 Jur. Soc. Pap. 6; Phillimore, l. c., pt. 2, c. 4: Gueterbock, “Bracton,” c. 7.