The Agitation for Law Reform during the Puritan Revolution 1640–1660

165 Pages·1966·6.852 MB·English

by  Stuart E. Prall (auth.)

THE AGITATION FOR LAW REFORM
DURING THE PURITAN REVOLUTION
1640-1660
THE AGITATION FOR LAW REFORM
DURING THE PURITAN REVOLUTION
by
STUART E. PRALL
Queens College of the City University
of New York
THE HAGUE
MARTINUS NI]HOFF
1966
ISBN 978-94-015-0348-8 ISBN 978-94-015-0901-5 (eBook)
DOl 10.1007/978-94-015-0901-5
Copyright I966 by Martinus Nijhoff, The Hague, Netherlands
All rights reserved, including the right to translate or to
reproduce this book or parts thereof in any form
To Julie and David
TABLE OF CONTENTS
Preface. . . . . . IX
1. Introduction . I
II. Fundamental Law I2
III. The Establishment of the Commonwealth, I648-I653 . 28
IV. Agitation for Law Reform, I649-I653 . 50
V. Barebone's Parliament. . . . . . . 79
VI. The Protectorate . . . . . . . . . 99
VII. The Last Years of The Protectorate. I2I
Epilogue . . I45
Bibliography . 149
Index. . . . I57
PREFACE
Throughout this essay all dates are given in New Style. When
pamphlets were originally dated Old Style, the new date has been
substituted.
In all quotations the original seventeenth-century spelling has been
retained. A "sic" is placed in the quotation only where it appears to be
certain that there has been a misprint in the original.
I want to express my sincere gratitude to the late Professor Garrett
Mattingly of Columbia University for his inspiration and guidance
during the years spent under his sponsorship. It was a rare privilege
to study under him. Professor Sidney Burrell of Barnard College
offered many constructive suggestions and I am most appreciative
of the kind interest he took in the completion of this study. I also
wish to thank the editors of The American Journal of Legal History for
publishing some of my material on Chancery reform in their Journal.
The staff of the North Library of the British Museum was most
helpful in making available the many volumes of the Thomason
Collection. Thanks are also due to the staff of the Library of Union
Theological Seminary who helped in the location of materials from the
McAlpin Collection.
My greatest debt is to my wife who typed several drafts of the
manuscript and without whose patience and understanding this study
could not have been completed.
CHAPTER I
INTRODUCTION
It is customary for historians to keep political, constitutional, and
legal history separate from social and economic history. It is this
author's contention that the surest way to the understanding of a society
is to find those large areas in which law, politics, and social forces
merge. In the last analysis it is by examining the laws a people live
by that we see them in the raw. This is certainly true in a society which
is governed largely by customary law.
This study examines the course of the English Civil War and of the
search for a new polity by turning to the opinions expressed by both
the learned scholars and the unlearned pamphleteers who attacked
and defended the English legal system. By looking at this body of
literature the reader will find a key that opens the door to an under
standing of the increasingly conservative institutions created by
Oliver Cromwell and of the apparent inevitability of the Restoration
in r660. Whether men were rich or poor; urban or rural; Puritan,
sectarian, or Anglican; Royalist or Parliamentarian the important
thing in life in the end was the ability to live a fruitful life free of undo
fear of anarchy or of arbitrary interference by an unrepresentative
military junta.
The abolition of the Church and the triumph of Independency; the
abolition of the Lords and Commons; the expulsion of the Stuarts,
none of these would strike at the roots of organized society so com
pletely as would the abolition of the common law. Once it became
clear to Cromwell that the Revolution could lead to this, he devoted
his remaining years to the search for a form of government - short of
monarchy - that would guarantee the maintenance of the established
society and of the law that was its life-blood. With his death in r658
the only sure guarantee against the vices of anarchy and of tyranny
was the restoration of the Stuart monarchy.
Just as the men of the r640's and '50's used the criticism of the law
2 INTRODUCTION
as the means to vent their wrath against what they considered the
injustices of English society, so the historian can see the nature of
that society and of the dreams for a better life by looking at the law
and its critics.1
The study of these debates over the common law and the prerogative
courts in the Puritan Revolution illuminates a fundamental issue
that every mature society eventually has to face: how to defend the
individual and the society from the evils of anarchy and tyranny.
When the English threw over that system of church and state which
had reflected the customary life of the English people, nothing that
men could devise to replace it came close to striking that balance
between anarchy and tyranny. So in the end the old was restored. In
the New World in the late eighteenth century a similar problem would
have to be faced. Where the English found it necessary to reject the
written constitution based on deliberate calculation, the Americans
had no choice but to turn to the written instrument. The English
discovered that their ancient institutions were the surest guarantees
of liberty, while the Americans, having no such ancient and indigenous
institutions, had to devise new ones. The English would abandon the
notion of "fundamental" law because the ancient customs could
be maintained without deliberately enshrining them. For the Americans
the need for "fundamental" law was imperative. The new written
constitution would require generations to acquire the status of custom
from "time out of mind"; in the meantime it would have to stand on
the foundation of deliberate public policy.
Out of the late Elizabethan world came the seeds of the economic,
religious, and social crises that were to result in the armed conflict of
the 1640'S. As the Tudor and Stuart crown was seen to reach out,
grasping for more power over the life of the people, the opposition
represented by the new forces in the town and the old gentry in the
country rallied behind those groups who were already in position to
oppose the royal encroachments, viz., the common law courts - es
pecially justices like Sir Edward Coke - and the puritan divines.
The legal profession is almost congenitally conservative and, as is true
with all professions, jealous of its rights and privileges. The emergence
1 After reading hundreds of the books, pamphlets, petitions, and broadsides printed during
the Civil War and Interregnum, one gets a definite impression of the positions taken by
various social, political, religious, and economic groups. However, since so many of the
authors were anonymous, or are little known men, it is not possible to document with
certainty some of the generalizations that will be made in later chapters. To this extent this
study is impressionistic, but I hope it is revealing none the less.
INTRODUCTION 3
of the ancient court of Chancery as a tool of the royal will in con
junction with the newer prerogative courts of Star Chamber and High
Commission created a split in the judicial life of the nation which
grew in intensity in the century prior to the civil war, and drew not
only the legal profession into the struggle but inevitably brought the
law itself into the dispute. Those trained for the bar naturally look to
the past for precedent to justify not only the present, but even to
justify an innovation to the present. It was only natural that in the
course of debate over the growth of the royal prerogative both sides
would look to the English legal tradition to justify its claims. There
then naturally arises the question as to exactly what that legal
tradition is: of what does it consist, what were its origins, what were
its sanctions.
Much has already been written of the constitutional and political
arguments in the era preceding the civil war. The influence of the
great legal minds such as Bacon, Coke, and Selden have received
detailed analysis by many able scholars. There has also been a good
deal of research into the state of political theory and its ramifications
for the pre-war period and for the years of the civil wars themselves.
But as yet there has been no detailed investigation into the political,
constitutional, and legal problems of the interregnum.
Most studies of the political or legal theories of seventeenth century
England are either centered around the works of a few great thinkers,
such as Hobbes, Harrington, and Filmer, or else they are based upon
the all pervading religious theme. This study, however, while not
ignoring these traditional approaches, attempts to develop the political
and legal theories evident in the pamphlet literature of the era, and to
show the relationship between this body of literature and the political
and military events of the period. The various writers in the Thomason
and other collections which have been consulted will be interpreted less
in terms of their religious associations, and more in terms of the social
and economic interests which they represented. Christopher Hill, and
the Soviet historians, have tried, not very successfully, to make a
class struggle of the Marxian type out of the Puritan Revolution. A
similar attempt will not be made here, but certain cleavages in the
body of English society must be admitted and examined from time to
time in order to make sense out of the welter of conflict.
It is the author's hope that in the following pages the mass of
pamphlet literature dealing with legal reform can be used as the
means by which to arrive at a closer understanding of the Puritan
4 INTRODUCTION
Revolution and of its significance for the development of the consti
tution and of the common law.
Both in the realm of political or constitutional theory and in that
of jurisprudence the seventeenth century marks the coming of age for
England. Even though it was in many respects the Restoration era
and in particular the Glorious Revolution that saw the true arrival
of modern Britain, yet the Puritan upheaval significantly contributed
to bringing to the forefront such constitutional issues as the mixed
constitution, sovereignty, and the concept of legislation. In juris
prudence the struggle over the common law and the prerogative
courts led to a fuller understanding of the role of law in a developed
society and of the extent to which equity, the ward of the prerogative
courts, was also a necessary ingredient of a mature legal system.
The crown's encroachment upon the independence of the common
law courts during the reign of James I brought to a head the rivalry
between these courts and the prerogative courts which had marked
the judicial scene since the days of Cardinal Wolsey. The growing
importance of Star Chamber, Requests, High Commission, and
Chancery was generally attributed to the rapaciousness of the crown
and its overweening servants; few recognized that the cause lay
deeper and that this extension of the prerogative into the judicial life
of the nation was but a symptom of the increasing complexity of
English life, and of the failure of the common law to keep pace
with these changes.
In spite of the epithet of "despotism" which has been hurled con
tinually at the Tudors, there is now a general recognition that the
enhancement of the prerogative courts in the late fifteenth and the
sixteenth centuries was designed to meet the very practical legal
problems created by the rapid economic and social changes of the era.
[The more readily acknowledged despotism of Henry VIn after the
break with Rome in no way affected the actual administration of
justice.] The increasing resort to the Use or Trust in order to escape
the feudal obligations attendant upon land holding, or in order to
escape the requirements of primogeniture and make possible the
transference of land had been one of the most notable causes for the
expansion of Chancery jurisdiction. Even after the Statute of Uses in
I536, neither the Use nor the Chancery were set back. The ability of
the Chancellor to deal with disputes in personam rather than ad rem
was also a mark of Chancery's increasing prominence. The power of
the Chancery to restrain or enjoin an individual from committing a