Acts and Ordinances of the Interregnum, 1642-1660. Originally published by His Majesty's Stationery Office, London, 1911.
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A student of English legislation who limited his work to an examination of the volumes containing the Statutes of the Realm would entirely overlook one of the most interesting periods in the history of his subject. The Statute Book is a blank from the close of the 16th year of Charles I. (1640–1) to the year of the Restoration, the so-called 12th year of Charles II. (1660). Yet the intervening period was a time of great legislative activity; the attention of Parliament was not solely directed to war, or finance, or constitutional experiments; there was much general legislation of every kind; many legal and social reforms were attempted which, if often premature and abortive, were yet in some instances permanent and farreaching.
Having regard to the historical importance and the permanent results of this legislation, and to the fact that there does not exist any-collection of the Acts and Ordinances passed during these nineteen years, the Statute Law Committee determined to collect and republish them. The work was commenced in 1899, by Mr. F. F. Liddell (now Assistant Parliamentary Counsel), continued by Mr. W. M. Graham Harrison, and completed by the two editors whose names are on the title page.
The intention of these volumes is to present in a complete form, with the omission of enactments which seemed of little interest, the entire parliamentary legislation of the years between the outbreak of the Civil War and the Restoration. By parliamentary legislation is meant legislation enacted by the two Houses of Parliament, so long as there were two Houses, or by the House of Commons alone after it had assumed the sole legislative power; in fact, everything that came to be regarded at the time as standing in the same position as the old statutes. To these are added certain ordinances issued by the Protector and his Council in the years 1653–4, which operated for a time as Acts of Parliament.
A note at p. 178 volume v. of the Statutes of the Realm says, under 1640: "The whole of the Acts of this Session are here printed as having passed in the 16th year of King Charles the First, there not appearing upon the Roll anything to distinguish what Acts passed in the 16th and 17th, and in the 17th and 18th years; the three parts of the Roll being a regular Continuation of Acts under the same Head as to the Session.
"At the Parliament Office the first 22 Acts are in a Bundle endorsed '16 and 17 Car.' and by 'The long Calendar' in the same Office are stated to have passed 'Att the first Recesse of Parliament begunn at Westmr the Third Day of November Ano R. R. Car. 16° and 17° 1640 1641.' And the remaining 15 Acts are in another Bundle, endorsed '17 and 18 Car.' And in the same Calendar are stated to be 'Acts
those printed in the first and second volume of this collection from those which were judged of insufficient importance to be reprinted. References are given to collections in which the omitted ordinances may be found. Ordinances of the nature of private Acts, such as those for removing the sequestrations laid upon the estates of particular Royalists, or for the ejectment or appointment of particular ministers, are not included either in the table or the collection. Ordinances for the payment of small sums of money from specified funds to particular persons, and for the addition of particular persons to committees have also been omitted. Ordinances continuing for a limited period the operation of earlier ordinances are mentioned in the table of Acts, but not reprinted. Without the adoption of some such principle of selection the number of these volumes would have been doubled, and the addition to their bulk would not have increased their value to students. The editors believe that every enactment of any historical or legal importance has been included. The matter omitted belongs almost entirely to the period 1642–1649. During those years practically everything was done by orders or ordinances of the two Houses, and the distinction between orders and ordinances was at first neither clearly defined nor systematically observed.
All the enactments passed during the first period of the Long Parliament, that is, from the breach with the King in 1642 to January 1648–9, are termed Ordinances. They received the assent both of the Lords and Commons, but failed to become Acts by reason of never receiving the assent of the King. These occupy pp. 1–1253 of vol. i. of this collection.
The second class of enactments consists of those passed between January 1649 and April 1653, when the Long Parliament was expelled by Cromwell and the Army. They were the work of the House of Commons alone, which having assumed to itself the sole possession of the legislative power, abolished the office of King and the House of Lords, and henceforth styled the measures it passed not Ordinances but Acts. The first enactment to bear the new title was the Act for the trial of the King passed on January 6, 1648. These Acts extend from vol. i., p. 1254, to vol. ii., p. 703.
These Acts fill pp. 54–178 of vol. v. of the Record edition, but pp. 133–177 consist of the Acts passed in the second session of the Long Parliament. The last Act to receive the King's assent was chapter xxxvii., "An Act for the further advancement of an effectual and speedy reduction of the Rebels in Ireland" (p. 176). The royal assent was given on June 22, 1642, by commission dated June 14 (Lords Journals v. 154; 5th Report Historical MSS. Comm., p. 29). The Act for the attainder of the Earl of Strafford is placed at the end (pp. 177–8) and numbered chapter xxxviii., though it had received the King's assent on May 10, 1641.
The fourth class of enactments consists of the Ordinances issued by the Protector and his Council from December 1653 to September 1654. By clause xxx. of the constitution known as the Instrument of Government these Ordinances were to be "binding and in force, until order shall be taken in Parliament concerning the same." Many of them were subsequently confirmed and given the force of statutes by an Act of the Protector's Second Parliament in 1657. These enactments occupy pp. 823–1029 of the second volume. (fn. 1)
The fifth class of enactments consists of the Acts passed by the second Parliament of the Protectorate during the session of 1656–7. The first Parliament of the Protectorate did not pass a single law, and the second session of the second Parliament was equally barren. The Acts passed between the meeting of the second Parliament of the Protectorate on September 17, 1656, and its prorogation on June 26, 1657, occupy pp. 1036– 1270 of the second volume.
The sixth class of enactments consists of the Acts passed by the restored Long Parliament, commonly called the "Rump," between its re-establishment on May 6, 1659, and its dissolution on March 16, 1660. These occupy pp. 1270–1472 of the second volume.
As no complete collection of these enactments was published during the period to which they belong, and none has been issued since, it is necessary to begin by some account of the sources from which they are derived. These sources are four in number.
I.—A large number of the original Ordinances passed between 1642 and 1649 are to be found amongst the papers of the House of Lords, and are enumerated in the calendars of those papers printed in the fifth, sixth, and seventh Reports of the Historical Manuscripts Commission. But, as shown on pp. 32–34 of this Introduction, a certain number of them were destroyed at the Restoration. The originals of the Acts passed between 1649 and 1660 are naturally not amongst the archives of the House of Lords; some of them, however, are amongst the Domestic State Papers in the Record Office, and from this source and from the Irish Record Office it has been possible to obtain copies of a few Acts which were not printed at the time when they were passed.
II.—Ordinances passed between 1642 and January 1649 are printed in the published journals of the House of Lords for that period. In some cases, however, the compilers of the MS. Journals, instead of entering the Ordinances in writing under their dates, contented themselves with inserting the printed Ordinances issued at the time.
III.—From 1642 to 1649 the Ordinances passed by the two Houses were usually printed in quarto as separate pamphlets and issued immediately after their passing. The Parliament had at first no official printer. The Acts passed in the session of 1640–1, and most of the declarations exchanged between the King and the Parliament in 1642, bear the name of Robert Barker, "printer to the King's most excellent Majesty." But the declarations, orders, and ordinances of the two Houses during 1642 were printed by a number of different printers, with or without authority. In 1643 two of these printers succeeded in ousting their competitors. The House of Lords on January 14, 1643, ordered John Browne, the clerk of the Parliament, to "provide a printer that shall print those things that are appointed by Parliament," and Browne selected for the purpose "John Wright in the Old Bailey." (Lords Journals v. 554; vi. 147). The House of Commons preferred a different man. Ordinances and declarations the publication of which was authorised by Henry Elsynge, the clerk of the House of Commons, usually bear the words "printed for Edward Husbands," with the addition "to be sold at his shop in the Middle Temple" or "at the sign of the Golden-Dragon near the Inner Temple." (fn. 2)
With the abolition of the House of Lords in 1649 Wright ceased to be one of the Government printers. After the House of Commons declared itself the Parliament, and called its enactments "Acts," they were printed in folio instead of in quarto form, and in much larger and better type. At first they bore the name of Edward Husband (for he had since 1645 dropped the last letter of his name), but after September 1659 the name of John Field was associated with his. By vote of January 25, 1649–50, it was ordered that "John Field, printer, nominated by Mr. Speaker, be joined with Mr. Husband, stationer" for the printing of an Act concerning the estates of Papists, "and that his name be used in printing of the same Act and all other Acts and proceedings." (Commons Journals vi. 349.) In February 1651 the name of Husband disappears, and from that date to the expulsion of the Long Parliament the Acts bear the name of "John Field, printer to the Parliament of England."
The proclamations and ordinances issued by the Protector during 1653–4 were printed by William Dugard, printer to the Council of State, and Henry Hills, but the name of the latter as "printer to his Highness the Lord Protector" appears alone on the title page of the collection published in 1654. From the commencement of 1654 to the close of the Protectorate Henry Hills and John Field were associated as "printers to his Highness." On the restoration of the Long Parliament in May 1659 Hills was dismissed and John Field became again the official printer. After the second restoration of the Long Parliament in December 1659 John Streeter or Streater was appointed printer, and he took into partnership John Macock. They printed the Act for dissolving the Long Parliament passed on March 16, 1660, which concludes this collection.
IV.—Besides these separately issued Acts and Ordinances issued by the various printers named above, there are several contemporary collections. Edward Husbands published in 1643 a quarto volume of nearly a thousand pages, including declarations, proclamations and orders as well as ordinances. It is entitled "An exact Collection of all Remonstrances, Declarations, Votes, Orders, Ordinances, Proclamations, Petitions, Messages, Answers, and other Remarkable Passages between the Kings Most Excellent Majesty and his High Court of Parliament, beginning at his Majesties return from Scotland, being in December 1641, and continued until March the 21, 1643, Which were formerly published either by the Kings Majesties Command or by Order from one or both Houses of Parliament. With a Table wherein is most exactly digested all the fore-mentioned things according to their severall Dates and Dependancies.
By order of the House of Commons on March 24, 1642–3, Husbands was given the profits of the collection, and no one was to print it without his leave for the next six months. The House of Commons was satisfied with the result. On August 5, 1644, it ordered "that Mr. Husband the printer do print all the Orders, Ordinances, and Declarations, that have passed since the setting forth of the last volume of Ordinances and Declarations formerly set forth by him; and that he do take care diligently to compare his copies with the originals; and that no other presume to print the same." (fn. 3)
"A Collection of all the publicke Orders, Ordinances, and Declarations of both Houses of Parliament, from the Ninth of March 1642, Untill December 1646. Together with several of his Majesties Proclamations and other Papers Printed at Oxford. Also a convenient Table for the finding of the severall Date and Title of the Particulars herein mentioned.
Husband made no similar collection of the ordinances passed during 1647 and 1648. There are, however, in the British Museum two volumes entitled "A Collection of the several Acts of Parliament from the 16 of January 1649 to the 8 of April 1653, printed for Edward Husband," the pressmark of which is E. 1060, 1061. But these two volumes are not a reprint of the Acts, but merely the original Acts bound together, with the addition of a title page. The two volumes contain 1,942 pages. Cromwell's Ordinances were bound together in the same way, with the addition of a table of contents as well as a title page, and issued by Henry Hills in 1654 under the following title:
"A Collection of all the Proclamations, Declarations, Articles and Ordinances, passed by his Highness the Lord Protector and his Council, and by their special command published, beginning December 16, 1653, and ending September 2, 1654. London: Printed by Henry Hills, Printer to his Highness the Lord Protector, and are to be sold at the sign of Sir John Oldcastle near Pycorner, 1654." The volume contains 476 pages.
Lawyers and officials who were obliged constantly to refer to the enactments passed by Parliament since 1642 found these various collections cumbrous and inconvenient. They contained a vast mass of matter of a non-legal character, and were neither properly arranged nor indexed. Several attempts were therefore made to collect into one volume all the legislation of the period which it was necessary for practising lawyers and persons engaged in public affairs to have in an accessible form. Parliament took the matter in hand. On June 21, 1650, it passed the following votes:
"Ordered, That it be referred to a Committee, to collect the several Statutes and Ordinances of Parliament, concerning Justices of the Peace, and the Administration of Justice; and forthwith to present such of them to the Parliament, as they shall think fit, to be bound up in one Volume, and printed: Viz, unto Mr. Myles Corbett, Mr Sollicitor-General, Lord Commissioner Whitelock, Mr Attorney-General, Mr Blagrove, Mr Darley, Mr Long, Mr Ellis, Mr Fell, Lord Commissioner Lisle, Mr Garland, Mr John Corbett, Mr Lechmere, and all the Lawyers of the House; or to any Three of them: Who are to meet this Afternoon, in the Speaker's Chamber; and so de die in diem: And the Clerks are to attend this Committee.
"Resolved, That it be referred to the same Committee, to revise all former Statutes and Ordinances now in Force; and consider as well which are fit to be continued, altered, or repealed, as how the same may be reduced into a more compendious Way, and exact Method, for the more Ease, and clearer Understanding, of the People: And this Committee shall have Power to advise with the Judges; and to send for, and to employ, and call to their Assistance herein, any other Persons whom they shall think fit, for the better effecting thereof; and to prepare the same for the farther Consideration of this House; and to make report thereof: And the special care hereof is committed to Mr SollicitorGeneral." (fn. 4)
The Committee employed Henry Scobell, who had succeeded Elsynge as Clerk of the House of Commons on January 5, 1649, and been made Clerk of the Parliament in place of Browne by an Act passed on May 14, 1649. (Commons Journals vi. 111, 209).
"A Collection of severall Acts of Parliament, Published in the Years 1648, 1649, 1650 and 1651, Very useful, especially for Justices of the Peace, and other Officers in the Execution of their Duties, and the Administration of Justice. With some Ordinances of Parliament of like Concernment. Whereunto is added, several Acts of Parliament made in the 17th and 18th Years of the late King, and Ordinances touching Adventurers for Ireland. Together with Tables containing the Titles of the several Acts and Ordinances: As also a Table or Kalendar of the principal Matters in them contained. By Henry Scobell Esq; Clerk of the Parliament. London, Printed by John Field, Printer to the Parliament of England, And are to be sold by W. Lee, D. Pakeman and G. Bedell, at their Shops in Fleet-street, 1653."
It is a small folio divided into two parts. The first part, consisting of 84 pages, contains eleven Acts which had received the assent of the King in 1641–2, and two Ordinances dated July 14, 1643, and November 13, 1647, concerning the subscriptions for the reconquest of Ireland. The second part, consisting of 224 pages, contains fifty Acts passed in 1649, 1650, and 1651, and about a dozen Ordinances passed between 1643 and 1648. There are tables and an index, but a poor one.
"An Exact Abridgment of Publick Acts and Ordinances of Parliament made from the year 1640 to the year 1656. As also of diverse Ordinances and Publick Orders made by his Highness the Lord Protector, with the advice of his Councill, Fitted for the use and benefit of the people of this Commonwealth, by William Hughes, of Gray's Inne, Esq. With an exact Table, in which may be found the Principall matters therein contained. London, Printed by T. R. for H. Twyford, T. Dring, and J. Place and are to be sold at their Shops in Vine Court, Middle Temple, the George in Fleet Street neer Cliffords Inne, and at Furnivalls Inne Gate in Holborne, 1657."
This rival publication must have endangered the sale of Scobell's book, especially as it included Acts passed in 1652–3 and Ordinances made by the Protector in 1654 and 1655. Accordingly Scobell was authorised by Parliament to publish a new collection, and to include in it all the Acts passed in the session of 1656–7. The House ordered on June 26, 1657, "That a collection of Public Acts and Ordinances made in the Parliament begun and held at Westminster the third day of November 1640, by Henry Scobell, Clerk of the Parliament, be printed, together with such as have been passed and confirmed this Parliament: And that no printer, or other person or persons, do print or reprint the same or any part thereof, but such only as shall be authorised by him for that purpose." (Commons Journals vii. 578.)
"A Collection of Acts and Ordinances o General Use, made in the Parliament begun and held at Westminster the third day of November, Anno 1640 and since, unto the Adjournment of the Parliament begun and holden the 17th of September, Anno 1656, and formerly published in Print, which are here published at Large with Marginal Notes, or Abbreviated. Being a Continuation of that work from the end of Mr Pulton's Collection. In Two Parts. Together with several Tables of the Titles and Principal matters contained in the said Acts and Ordinances; and likewise of such as being of more private and particular Concernment, or less use, are omitted. By Henry Scobell, Esq. Clerk of the Parliament. Examined by the original Records, and now printed by Special Order of Parliament. London. Printed by Henry Hills and John Field, Printers to His Highness the Lord Protector. 1658."
Leaving out of count prefatory matter and tables, the volume consists of a first part containing 186 pages devoted to the legislation of 1640–1648, and a second part of 515 pages devoted to the Acts passed from January 1649 to July 1657, and the Ordinances of the Protector. It was not a complete collection, nor was it intended to include more than the Acts and Ordinances "of general use." In a number of cases Acts and Ordinances are not printed in full, but in an abbreviated form, while in some cases only their titles were given.
"To gratifie the importunate desires of many worthy Persons, and that I might serve the Publique to my utmost, was this Work undertaken by me, observing the prejudice redounding to many, by reason divers, if not most of the Acts and Ordinances made within these Seventeen years last past, were out of Print, and with much difficulty to be had, though at very high Rates. The Work it self needs no other apology than the usefulness of it. That it was not performed by a more judicious Hand may render me more obnoxious to censure, which I rather chose to expose my self unto, then that it should not be done at all. Hoping therefore to be candidly interpreted herein, I shall onely give some brief Account concerning the Contents of the Book, with some Notes for the Readers better Direction in the use of it.
"My first intention being to have Collected all the Acts and Ordinances which had been made and published in Print, from the beginning of the Parliament begun and held the Third of November, One thousand six hundred and forty (the Book of Statutes published by that Learned Mr Pulton (fn. 5), having taken in those of former times,) upon 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 onely particular persons, places, or occasions, which if printed, would have swelled this Book, and have been of little or no use, other then 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. My desire and chief aim being to repair the want of that which might be of more general use, and yet to do it so, as that it might not be overchargeable to the Buyer, without wholly omitting any thing (as near as I could discern) that might be any way serviceable to the Publique. I therefore determined to lay aside all such Acts and Ordinances as had sole relation to the then present times, and particular occasion, and such as respected some one or a few Counties, Cities, Towns, Garrisons, or Persons only, together with such as were for a limited time, and so expired without being continued or revived. The rest I have chosen out, as those whereof there is or may be more daily use; and have given some short Abbreviations in course of such Acts and Ordinances as have been of Publique concernment formerly, though now either determined or altered, inserting in this Book, those which are now of force, or not expressly repealed, together with such as have been acted upon, and so may be of concernment to such persons as have or may be called to justifie their actions done by virtue or in pursuance of them.
"The Book is divided into two Parts, the First whereof contains all the Acts and Ordinances of this nature, made in XVI to Caroli, and so onward to January 1648. The Second Part contains those which were made from that time until the Adjournment of this present Parliament, on the 26 June 1657. To which is annexed a large Table of the Principal Matters contained in the whole Book, under several Alphabetical Titles, whereby the Reader will with less labor and more certainty, be directed to what he seeks, by the Year and Chapter. And because the Titles of the several Chapters in this Book, contain onely the subject matter of them in a few words, according to Mr Pulton's method, which is done for brevity sake, in regard those Titles formerly printed with the Acts and Ordinances themselves, were for the most part very large, and yet those large Titles are often recited in subsequent Acts and Ordinances; therefore lest it might occasion any mistake, you have herewith also printed a Table of all the large Original Titles of all the Acts and Ordinances, either printed at large or abbreviated in this whole Work, with a Direction to the Page where the Act or Ordinance it self may be found (respect being had to the Two Parts in which the Book is divided) and have distinguished the Acts and Ordinance abbreviated, from the rest in that Table, by this mark
"And for some help to such as may have occasion to make use of any other Act or Ordinance, not herein printed at large or abbreviated, you have likewise added to the former, another Table containing the Titles of all such Acts and Ordinances as I can finde to have been heretofore printed, but are herein wholly omitted.
"In both which last mentioned Tables, before each Title is prefixed the Day of the Moneth, and at the top of the Column, the Year when such of these as are so distinguished did Pass; which hath been done with more exactness, lest there should in the Printing be any mistake in the Dates, which in the Body of the Book are set at the end of each Act and Ordinance.
It has been thought desirable to dwell at length on the history of Scobell's collection and the principles which guided him in compiling it, because that collection has been the authority usually referred to by historians of this period and by commentators upon its legislation. It seems also desirable to show the relation of this present collection to Scobell's, and to point out the particulars in which it differs from that.
These two volumes include all the Acts and Ordinances that Scobell thought worth including, excepting the Acts passed by the Long Parliament in 1640–1642, and assented to by the King. As these are to be found in the Statutes of the Realm, it was not necessary to reprint them. This collection includes the Acts passed by the Long Parliament in 1659–1660, which were passed subsequent to the publication of Scobell's collection, and have not hitherto been reprinted. It includes also some of the Protector's Ordinances, and a number of Acts passed between 1649 and 1653, which were abridged by Scobell, or mentioned only in his table, and a still larger number of Ordinances passed between 1642 and 1648 which he omitted.
Scobell added marginal notes to the Acts and Ordinances which he reprinted, and these have been preserved in this edition, and will easily be identified by reason both of their style and their spelling. All other marginal notes have been added by the editors, there being none attached to the Acts and Ordinances in their original form, or in the two collections published by Husbands. Scobell also numbers the Acts and Ordinances he prints. For instance, he numbers the Ordinances selected for the period from 1642 to the end of 1648 as cap. 1 to cap. 124 in one consecutive series, while from 1649 to 1653 the Acts of each year form a similar series. The Acts passed in the Parliament of 1656–7 are numbered in the same way. This numeration possesses no authority. It is entirely Scobell's own, and was dictated by the desire to imitate the system of numbering the recognised statutes, and to facilitate reference to particular enactments in his index. Since it possesses no authority it has not been followed in the present collection, and the Acts of 1656–7 have been arranged in the order in which they were passed instead of in the order assigned to them by Scobell.
Scobell's collection was intended for the practical lawyer and the man engaged in public affairs. The present collection is primarily intended for the use of the historian, and that explains the inclusion of many enactments which Scobell felt he could safely omit. What concerned him was their legal value As laws their value was an uncertain thing, depending, like stocks, on the strength and credit of the government which issued them, and on the probability of its permanence. Their validity was not fixed but fluctuating, and reached its highest point in 1657, when Scobell put his collection together, because at that date the Protectorate seemed more likely to be durable than any other government which had come into being since 1642. The question of the relative validity, at different times during the interregnum, of this mass of revolutionary legislation, is one of considerable importance. To make the question clear it is necessary to examine into the circumstances under which Parliament began to claim the power of legislating without the assent of the Crown, and to show to what extent the enactments of Parliament were accepted by the English people as possessing the force of law.
Accident rather than deliberate design led to the passing of the first Ordinance issued by the Long Parliament. At the beginning of August 1641, when Charles I. went to Scotland, the two Houses wished to appoint certain commissioners to follow him to Edinburgh, nominally to treat with the Scottish Parliament, in reality to watch the King's conduct. A difficulty arose about procuring formal authority for the appointment of these commissioners.
"The Lord Keeper was asked to pass their commission under the Great Seal. This Lyttelton positively refused to do with directions from the King. A proposal was made to order him to do it. D'Ewes—who earlier in the session had discovered that, though it was immoral and irreligious to pay interest, it was perfectly innocuous to pay damages—now informed the Commons that, though the Houses could not make the order which was proposed, an ordinance of the two Houses in Parliament had always been of great authority; and he then cited from the Rolls of Parliament an ordinance of the year 1373. It is true that the citation had no bearing whatever on the point in question, as the ordinance of 1373 had been made by the King, though it had been announced to Parliament in answer to a petition of the Commons.
The House caught at the idea, and the first ordinance of the Long Parliament was sent up to the Lords. On the 20th the Lords adopted it. From henceforth the term "ordinance" would be taken to signify, not, as it had done in the Middle Ages, a declaration made by the King without the necessary concurrence of Parliament, but a declaration of the two Houses without the necessary concurrence of the King." (fn. 6)
"Mr. Pym reports an Ordinance of Parliament concerning agents and committees to be sent to attend the King in Scot land, made and assented to by the Lords and Commons upon the 20th day of August, 1641.
"The Lords and Commons in this present Parliament assembled do hereby ordain and appoint Wm. Earl of Bedford, Edw. Lord Howard, two of the peers of the Lords House, Nath. Fiennes, Esquire, Sir Wm. Armyn Baronet, Sir Ph. Stapleton Knight and Jo. Hampden Esquire, members of the House of Commons; to be agents and committees for both Houses of Parliament, to attend the King's Majesty during his absence in the kingdom of Scotland; and do hereby authorise them or any three of them, from time to time, to present to his most excellent Majesty the humble desires, counsel, and advice of his Majesty's most loyal subjects, the Lords and Commons in Parliament, according to such instructions and directions as are hereunto annexed, or shall at any time hereafter, be sent unto them by the order and consent of both Houses." (fn. 7)
On August 24 they passed a measure concerning the more speedy transportation of Poll-money to York for disbanding of his Majesty's army. This is termed in the title "An order of the Lords and Commons," and referred to in the Journals as "an Ordinance of Parliament." The words used in it are "The Lords and Commons in this Parliament assembled do hereby order and ordain." (fn. 8) On August 27 this was followed by what is entitled "An Ordinance of Parliament for a day of public Thanksgiving," which is first styled an order, then an ordinance, in the Journals. The words employed in it are "it is now declared and ordained by the Lords and Commons in Parliament." (fn. 9)
On August 30 came "an Ordinance made and agreed by the Lords and Commons in Parliament for the speedy disarming of popish Recusants and other dangerous persons," in which the words used are "it is ordained and provided by the Lords and Commons in this present Parliament assembled." (fn. 10) Last of all there was passed "An Ordinance made and agreed upon by the Lords and Commons in Parliament the 9th of September 1641 concerning the raising and transporting of forces of horse and foot out of his Majestys dominions of England and Ireland," in which the formula employed is simply "it is ordained by the Lords and Commons in Parliament." (fn. 11)
At the moment the unconstitutional nature of these ordinances seems to have attracted little attention. Sir Edward Nicholas, writing to the Earl of Arundel, enclosed the ordinance appointing the Commissioners sent to Scotland. "I have been told," he adds, "by some good Parliament men, that it is rare to see an ordinance in Parliament made without the King's consent, but of that your Lordship knows more and can better judge than any with whom I can here advise concerning it." (fn. 12)
Clarendon twice mentions these commissioners in his History of the Rebellion, (fn. 13) but says nothing as to the manner of their appointment. He refers, however, to the second ordinance as follows: "There was one clause in the Act of Pacification that there should be a public and solemn day of thanksgiving for the peace between the two kingdoms of England and Scotland: but no day being appointed for this act of in-devotion, the Lords and Commons assumed the power to themselves of directing it, and to that purpose made an ordinance, as they called it, that it should be observed on the 7th of September following." (fn. 14)
These first Ordinances, since they dealt with unimportant matters, raised little controversy. Their validity was not seriously discussed till Parliament attempted to use the same expedient to obtain control of the armed forces of the nation. On January 31, 1642, the King's answer to the petition of the Commons for the control of the fortresses and the militia was voted a denial, and the House drew up "an order concerning the disposing the whole militia of the kingdom," which it forthwith sent to the Lords. This "order," after some discussion, became on February 16 the "ordinance of Parliament for the safety and defence of the kingdom of England and dominion of Wales," which stands first in the present collection. This measure, "the militia ordinance," as it was briefly termed, was, in Clarendon's words, "the most avowed foundation of all the miseries that have followed." (fn. 15) It was presented to the King on February 22, and as Charles refused his assent, it was passed by the two Houses on March 5, 1642. In the version presented to the King the Lords Lieutenants named in it were instructed to employ the forces placed under their command "according as they, from time to time, shall receive directions by his Majesty's authority signified unto them by the Lords and Commons assembled in Parliament." In the version finally passed the words in italies were omitted. (fn. 16) This ordinance was backed by declaratory resolutions. On March 15, 1642, the two Houses joined in a vote "that in this case of extreme danger and of his Majesty's refusal, the ordinance agreed on by both Houses for the militia doth oblige the people, and ought to be obeyed, by the fundamental laws of the kingdom." On March 17 they resolved "That when the Parliament, which is the supreme court of judicature in the kingdom, shall declare what the law of the land is, to have this not only questioned and controverted, but contradicted, and a command given that it should not be obeyed, is a high breach of the privilege of Parliament." (fn. 17)
With this began the controversy on the validity of parliamentary ordinances which fills so large a space in the declarations of King and Parliament, and in the pamphlets of the time. It turned mainly on the question whether the emergency alleged to justify this particular ordinance really existed, but partly also on the distinction between bills and ordinances. "For the militia," said the King on March 26, 1642, "we never denied the thing . . . we only denied the way." He went on to say that he desired to settle the militia by a bill "the only good old way of imposing on our subjects: we are extremely unsatisfied what an ordinance is, but well satisfied that without our consent it is nothing." (fn. 18)
Parliament replied on May 9 by tendering a bill "without any intention of deserting or declining the validity or observance of that ordinance which passed both Houses upon your Majesty's former refusal, but we still hold that ordinance to be effectual by the laws of this kingdom." (fn. 19)
"For the way of ordinance" they declared on May 19, 1642, "it is ancient, more speedy, more easily alterable, and in all these and other respects more proper and more applicable to the present occasion, than a bill which his Majesty called the only good old way of imposing upon the subject; it should seem that neither his Majesty's royal predecessors nor our ancestors had heretofore been of that opinion. 37 Ed. III. we find this record: "The Chancellor made declaration of the challenge of the Parliament; the King desires to know the griefs of his subjects, and to redress enormities. The last day of the Parliament the King demanded of the whole estates, whether they would have such things as they agreed on by way of ordinance or statute? who answered by way of ordinance, for that they might amend the same at their pleasures; and so it was." (fn. 20) The precedent referred to is as follows: "Et pur tant demanda de eux, s'ils voleient avoir les choses issint accordez mys pur voie de Ordinance ou de Statuyt ? Qi disoient, qe bon est mettre les choses pur voie d'Ordinance, et nemye pur Estatut, aufin qe si rien soit de amender puisse estre amende a preschein Parlement; et issint est fait." (fn. 21)
Pamphleteers writing on behalf of the Parliament alleged other precedents, (fn. 22) but the case was so weak that in their next Remonstrance on May 26 the two Houses put forward a new argument, namely, the theory that by virtue of the coronation oath the Kings of England were obliged "to pass such bills as are offered to them by both Houses of Parliament in the name and for the good of the whole kingdom." (fn. 23) But this was speedily abandoned for the more effective argument that in cases of emergency Parliament might act alone, since it was not only a court of judicature, but "a council to provide for the necessities, to prevent the imminent dangers, and to preserve the public peace and safety of the kingdom." (fn. 24)
During the next few years ordinances were employed by Parliament to do all that could be done by Acts, and much that might have been done by mere orders. The Royalist position was that the Ordinances of the two Houses had no legal force without the King's assent. "What the word Ordinance signified," writes Sir Philip Warwick in "was grown so unintelligible, that I could never meet with any who would clearly expound it either by good books or authority; but this on all hands was agreed on, that an ordinance was never of universal force, but when the King concurred in it; and then it was esteemed as a law is now; and when it passed from the two Houses singly, it was only in Parliament time, and had no force longer, and never had force or general influence upon the people, nor further extent than to the two Houses." (fn. 25)
Royalist wits made the ordinances a favourite mark for their satire. "An Ordinance," wrote John Cleveland in 1645, "is a law still-born, dropt before quickened with the royal assent. Tis one of the Parliament's bye-blows, an Act only being legitimate." (fn. 26) Another defined an Ordinance as "an illegitimate monster or state-bastard, begotten between pride and disobedience, and forced upon the common-wealth to keep. It hath so many fathers that one cannot tell who had the greatest share in begetting it, unless the Devil, the father of lies, who is the great cause of its production." (fn. 27) Royalist poets made merry with the names of the clerks of the two Houses, which always appeared on the title-pages of ordinances as authorising their printing. Says a ballad:
"Regard no proclamations,
They're subjects fit to jest on,
Henry Elsyng's far better than C. R
Resolved upon the Question." (fn. 28)
"Not all the legends of the saints of old,
Not vast Baronius, nor sly Surius, hold
Such plenty of apparent lies as are
In your own author, Jo. Browne, Cleric. Par." (fn. 29)
During the war the authority of the Ordinances of Parliament was co-extensive with the influence of its arms, but whenever there was a prospect of a peaceful settlement the extent to which these ordinances were to be confirmed, or substantially re-enacted, was always one of the points at issue in the negotiations. The question became increasingly important as the war progressed and the ecclesiastical policy of the Parliament developed.
In the treaty at Oxford in February 1643 the King was asked to give his assent to five bills about ecclesiastical matters presented to him, and to promise it to certain other bills which were to be drawn up by the two Houses. At Uxbridge two years later he was asked to confirm by Act of Parliament the ordinances for taking the Covenant and calling the Assembly of Divines, as well as to promise his assent to about thirty Acts to be agreed upon on various subjects. At the treaty of Newport, in 1648, besides assenting to various bills he was asked to confirm the ordinances for the abolition of episcopacy and the sale of the Bishops' lands, and those for abolishing the Book of Common Prayer and imposing the Directory. The chief obstacle to an agreement was, that the King would not confirm these ordinances except with very material alterations and omissions. As in spite of that, a majority in both Houses voted that the King's concessions were a satisfactory basis for a settlement, it seems clear that if the treaty of Newport had been allowed to reach its natural conclusion, instead of being forcibly interrupted, Parliament would have been content with the re-enactment in a modified form of the substance of its chief ordinances instead of their confirmation.
The revolution which overthrew the monarchy gave the status of laws to the past ordinances of the Long Parliament and the title of Acts to future ordinances. The history of the transition is simple. On January 2, 1649, the Ordinance for the erection of a High Court of Justice was rejected by the House of Lords. On January 4 a new Ordinance for the same purpose was introduced and read twice by the Commons. On the same day the House of Commons assumed sovereignty by a resolution declaring "That whatsoever is enacted or declared for law by the Commons in Parliament assembled, hath the force of law, and all the people of this nation are concluded thereby, although the consent and concurrence of King or House of Peers be not had thereunto." On January 6 this entry appears at the end of the day's proceedings: "An Act for erecting an high Court of Justice for trial of the King was this day read the third time; and upon the question, passed." There is no record of any discussion about the change of form, save that at the beginning of the proceedings on Monday, January 8, there is the following vote:
Read the Third time; and, upon the Question, Resolved, That it be enacted for Law; and have the force of a Law; and that the Clerk do indorse the same accordingly." (fn. 30)
The title of "Act" was next given to a measure for the adjournment of Hilary Term passed on January 16, which was endorsed with the same words as the Act for the King's trial. Nevertheless several ordinances were passed, introduced or ordered to be introduced between January 13 and January 23, and the Journals contain no formal resolution as to the change of style.
Between January 6 and its expulsion on April 20, 1653, the Long Parliament passed 309 public Acts. After its expulsion the Council of Officers nominated 140 persons to exercise the supreme authority, and summoned them to meet on July 4, 1653. This assembly of nominees assumed the title of Parliament on July 6, and gave the name of Acts to the 29 measures it passed. On December 12 the assembly resigned its authority back to the Lord General, and on December 16, by the provisions of the "Instrument of Government" drawn up by the Council of Officers, the Protectorate was established.
Article three declared that the Protector was to govern "according to the laws." Article six specified "that the laws shall not be altered, suspended, abrogated, or repealed, or any new law made, nor any . . . . tax charge or imposition laid upon the people, but by common consent in Parliament, save only as is expressed in the thirtieth article." Article thirty empowered the Protector, with the consent of a majority of the Council, to raise money for defraying the charge of the army and navy "until the meeting of the first Parliament"; "and also to make laws and ordinances for the peace and welfare of these nations where it shall be necessary, which shall be binding and in force till order shall be taken in Parliament concerning the same." Article thirty-eight annulled certain laws and ordinances, and article thirty-nine expressly confirmed some others.
In the interval between the installation of the Protector on December 16 and the meeting of his first Parliament on September 3, 1654, he issued 82 ordinances. That Parliament, in addition to revising the Instrument of Government, and turning it into "An Act declaring and settling the government of the Commonwealth," undertook the examination of the Protector's ordinances. (fn. 31) Those for the Approbation of Public Preachers (March 20, 1654), for the Ejection of Scandalous Ministers (August 28, 1654), for the Uniting of Parishes (September 2, 1654) and for the reform of the Court of Chancery (August 21, 1654), which excited most criticism, were referred to committees, and bills were ordered to be brought in dealing with those subjects. On October 10 the House resolved "That it be referred to a Committee to take consideration of and review all such ordinances as have been made by the Lord Protector and the Council, which are not already under consideration of some Committee of this House; and to state the same, or such of them as they shall see cause; and to report their opinion therein to the House, for their further consideration." (fn. 32)
It was intended to revise the Acts of the Little Parliament too. The Act touching Marriages (August 24, 1653) and that for the relief of Creditors and poor Prisoners (October 5, 1653) had both been severely criticised and referred to Committees. The resolution of October 10 was accompanied by another instructing the same committee, "to take into consideration all such laws, ordinances, and acts as have been made from the 3d of July 1653, until the 10th of December 1653, which are not already referred to some committee of the House; and to report their opinion touching them to the House." (fn. 33)
The result was that the operation of the Act for the relief of debtors was suspended and a new bill for the same purpose brought in. Cromwell's ordinance for the regulation of Chancery was suspended till March 1, 1655, and a bill for regulating that Court read a first time on December 4, 1654. Though the operation of the ordinance for ejecting scandalous ministers was not suspended, a bill meant to supersede it was read twice. Bills were also introduced for effecting the union of England with Scotland and Ireland. (fn. 34) As none of these bills had been passed by January 22, 1655, when the Protector dissolved this Parliament, both the Protector's ordinances and the Acts of the Little Parliament remained in force The financial ordinances, however, were an exception. By the terms of the Instrument they were only to be in force till the meeting of Parliament. Moreover, on November 23, 1654, Parliament had passed a resolution "That such ordinances heretofore made by the Lord Protector and his Council before this Parliament, for the raising, bringing in, and disposing of monies for the maintaining the forces of this commonwealth by sea and land . . . and for the necessary charges of the government, shall remain and continue to the end of this Parliament, and no longer; unless the Parliament takes further order to the contrary; or unless the said ordinances shall expire before that time." (fn. 35)
As the Act for an assessment of sixty thousand pounds a month on the three kingdoms, though read three times in the late Parliament, had not been finally passed by it, the Protector was in a difficulty for money. He met it by issuing on February 8, 1654, an "order and declaration" for raising that sum, and a similar "order and declaration" on February 28 for the continuance of the excise. (fn. 36) The title chosen was intended to show that he no longer claimed the right to issue ordinances. "His Highness," said a newsletter, "by not making it an ordinance, hath modestly denied to assume the legislature of the nation." (fn. 37)
There was some opposition both to the financial and the legal ordinances. A newspaper announces under March 1 1655, "The ordinance formerly passed by his Highness the Lord Protector, with advice of his Council, for regulating the Court of Chancery, and which was suspended by the late Parliament until the first of March instant, this day took place and came in force." After some dispute two of the Commissioners of the Great Seal, Whitelocke and Widdrington, resigned rather than put the ordinance into execution. (fn. 38) Two judges, Thorpe and Newdigate, were dismissed from their offices by the Protector for refusing to execute the treason ordinance of January 19, 1654. (fn. 39) Finally, three lawyers, Maynard, Twisden and Windham, were committed to the Tower for denying the validity of the ordinances for the levy of the customs. (fn. 40)
In all these cases the question at issue was not merely the validity of particular ordinances, but the validity of the "Instrument of Government" which gave the Protector power to issue them. Cromwell was therefore bound to maintain his ordinances by force, if force was needed.
The framers of that constitution inserted an article confirming expressly all the acts and ordinances for the sale of Church lands, Crown lands, and the confiscated estates of Royalist delinquents (article 12). To this they added a later article providing "That nothing contained in this Petition and Advice, nor your Highness' consent thereunto, shall be construed to extend to the repealing or making void of any Act or Ordinance which is not contrary hereunto, or to the matter herein contained, but that the said Acts and Ordinances not contrary hereunto shall continue and remain in force, in such manner as if this present Petition and Advice had not at all been had or made, or your Highness' consent thereunto given." (fn. 41) When the Petition and Advice was presented to the Protector he pointed out that this article left the validity of his own ordinances very doubtful. As he said, it spoke "faintly and dubiously" about them. (fn. 42) To leave the question vague would tend to "dissettlement," for by these ordinances the settlement of Ireland and the union with Scotland had been completed, and the ecclesiastical organisation of England was also based upon them. Cromwell pointed out this in the speech he delivered to the Committee of the Parliament on April 21, 1657, and in the paper he handed to the Committee he proposed a remedy.
"Sixteenth article. Whereas the Acts and Ordinances not contrary to this advice are to remain in force in such manner as if this Advice had not been given, whether this will be sufficient to prevent the inconveniences which may arise upon this change of government? And therefore, whether it be not necessary—That all Acts and Ordinances made since 1642 by those who have exercised the legislature be revised, to the end such as are useful may be continued, and such as are unnecessary may be repealed, and that until such review and resolution taken thereupon, all such Acts and Ordinances be continued, and remain in force to all intents and purposes?" (fn. 43) On April 24 the question thus raised by Cromwell was referred by Parliament to a Committee of 46 persons. On the 25th and 27th of April this committee met, and on the morning of the 28th it brought in its report. The 28th, 29th and 30th of April were spent in considering the report and in going through the list of Acts and Ordinances drawn up by the Committee. (fn. 44)
The debates of the House (though not those of the Committee) are fully reported in Burton's Diary. It was almost universally admitted that the Acts and Ordinances of the Long Parliament needed no confirmation. "I desire," said Mr. Grove, "they may be left upon their own authority, which is not questioned in Westminster." "They are able to stand upon their own strength," said Mr. Bampfield. "By your going about to confirm them you rather shake them," said Sir William Strickland. Secretary Thurloe said, "I am of opinion that the laws made in that Parliament are as valid as need be without any confirmation; but seeing it is before you, and if you should pass it over there may be several constructions made of it abroad" some general resolution on the point was desirable. (fn. 45) Accordingly the House resolved "That touching the Acts and Ordinances made from the first of April 1642 until the 20th of April 1653 this answer be tendered unto his Highness: That this House doth conceive no need of any declaration or confirmation, the same being valid of themselves, and ought to be so accepted and taken." But at the same time they added this proviso: "Provided that this be not construed to extend to the confirming of the matter of any Act or Ordinance of Parliament, which is contrary to the humble Petition and Advice presented to his Highness by the Parliament." (fn. 46)
For, as it was pointed out, unless some such proviso were added, the Act of March 17, 1649, abolishing monarchy and declaring that it should be high treason to seek to promote "any one person whatsoever to the name, style, dignity, power, prerogative or authority of king of England and Ireland" would still be in force, and would prevent the settlement they were now seeking. "I am sure," urged the poet Waller, "you unsettle the settlement yourselves have made, and go to my Lord Protector for his consent to that which you declare to be treason, both for yourselves and him, to offer or accept it." (fn. 47)
The question of the Acts passed by the Little Parliament in 1653 gave little trouble. Nine public Acts and four private Acts were expressly confirmed. Only one of them, namely the "Act touching marriages," led to much debate. (fn. 48) The clause in it which made no other form of marriage legal was declared null and void, and the duration of the Act was limited to six months from the end of the present Parliament.
The discussion on the Protector's Ordinances was also not very lengthy. The Ordinance for the Approbation of Preachers was confirmed (with a proviso); that for the Ejection of Scandalous Ministers was continued for three years; that for the Visitation of the Universities for six months only; that for the relief of poor prisoners for a year. The Ordinance for the regulation of Chancery was to continue until the end of the present Parliament only. Other ordinances were confirmed with very slight alterations, and most with none at all. All the Acts of the Little Parliament and all the Ordinances of the Protector thus confirmed were enumerated in one bill. (fn. 49)
The preamble to the Act declared that "since April 20th, 1653, in the great exigencies and necessities of these nations, divers Acts and Ordinances have been made without the consent of the people assembled in Parliament, which is not according to the fundamental laws of the nation, and the rights of the people, and is not for the future to be drawn into an example, yet the actings thereupon tending to the estates of several persons and families, and the peace and quiet of the nation" therefore all the enactments whose titles followed were to be confirmed. All other Acts and Ordinances made or passed between April 20, 1653 and September 1656, were declared absolutely null and void.
The importance of this confirmation of the legislation of the last few years was thoroughly realised by the government. Thurloe, in a letter to Henry Cromwell, termed it "a matter of vast consequence." "The Parliament," he wrote, "have taken this course; they have perused all the several Acts and Ordinances, and all of them which concern either safety or reformation they have confirmed; a thing which tends exceedingly to the settlement of men's minds; and, in the opinion of most men, too much to have been expected from a Parliament." (fn. 50)
On the other hand many members of Parliament felt that this mass of legislation was too hastily and too indiscriminately confirmed. There were protests against confirming laws in a lump. "This," said one member, "is like King James making knights, where, in a room full of men, women, and children, he declared them all to be knights." "I have given my consent to 75 laws since yesterday at this time of day" said another member. The Long Parliament had been too prolific. "There were more laws," said Mr. Bond, "made in that Long Parliament than were made since the Conquest. . . . I had that from a very reverend judge." But Serjeant Maynard asserted that the present Parliament was just as bad. "This Parliament did pass more in one month than the best student of England can read in one year, and well if he can understand it then." (fn. 51)
Amongst the ordinances not confirmed was the treason ordinance of January 19, 1654, which was superseded by two acts, one renouncing and annulling the pretended title of Charles Stuart, the other for the security of the Lord Protector's person. These received the Protector's assent on November 27, 1656. The ordinance of September 2, 1654, touching the office of postage of Letters (p. 1007) was also superseded by an Act which received the Protector's assent on June 9, 1657 (p. 1110). Two other ordinances omitted were those made on June 27, 1654, for the distribution of elections in Ireland and Scotland—an omission which led to serious trouble in the next Parliament.
Thereby the representation of Ireland and Scotland in the next Parliament was left open to dispute. The fourth article of the Petition and Advice assumed that members from Ireland and Scotland would continue to sit in Parliament with the representatives of England as they had done since 1654. It closed with a proviso "that the number of persons to be elected and chosen to sit and serve in Parliament for England, Scotland, and Ireland, and the distribution of the persons so chosen within the counties, cities, and boroughs of them respectively, may be according to such proportions as shall be agreed upon and declared in the present Parliament." But neither the question of the number of members to represent each of the three countries nor that of the method in which they were to be chosen, had been determined by Parliament before its dissolution in February 1658. Accordingly, in December 1658 Richard Cromwell's council, holding the Instrument of Government nullified by the passing of the Petition and Advice, reverted in the case of England to the previously existing system of election, and issued writs to the counties, cities and boroughs which had enjoyed the right of electing members before 1654. (fn. 52) In the case of Scotland the late Parliament had intended to complete the Union by an Act. A bill for the purpose had been read twice and discussed in committee, but not passed. Not having time to pass this bill, the House adopted the expedient of confirming Cromwell's ordinance of April 12, 1654, which specified that Scotland should be represented by 30 members in the Parliament of the Commonwealth. But it omitted to confirm the ordinance of June 27, 1654 regulating the elections and specifying the distribution of the members. (fn. 53) Ireland was in a rather different position. A bill for its union with England had been read twice by the late Parliament but not passed. The Protector's ordinance "for the distribution of the elections in Ireland" made at the same date as the similar Scottish Ordinance, had not been confirmed. The right of thirty members to sit for Ireland rested on a vote of the Long Parliament on March 2, 1653, on article nine of the Instrument of Government, and the precedent of the last two Parliaments.
In the case of each country the right of its representatives to sit in Parliament was disputed by the Republican opposition. After nearly a fortnight's discussion it was decided, on March 21, 1659, that "the members returned to serve for Scotland, shall continue to sit as members during this present Parliament," and on March 23 a similar resolution was passed respecting the Irish members. (fn. 54) A month later the Protectorate came to an end.
On the fall of Richard Cromwell the officers of the army, after some three weeks' hesitation, invited the members of the Long Parliament expelled on April 20, 1653, "to return to the exercise and discharge of their trust." (fn. 55) There was no definite treaty between the representatives of the army and the members of the Parliament, although there was a discussion between them, in which certain vague general propositions as to indemnity for the supporters of the late government, provision for the late Protector, the reformation of abuses in Church and State, and the future government of the nation, were set forth by the one party, and agreed to or promised favourable consideration by the other. With a view to closer agreement the Army on May 13, 1659, presented a "Petition and Address" setting forth their desires in detail. "We have judged it our duty," the officers said, "to represent what was chiefly and unanimously upon our hearts when we engaged in that which made way for your return."
The third of the demands thus introduced was for an Act of Oblivion for all acts done since April 19, 1653. The fourth was "That all Laws, Ordinances, Orders, Declarations, and Establishments made in the several changes and alterations of government that have been in these nations, since the 19th of April aforesaid, and not as yet particularly repealed, be deemed good in law until particularly repealed." (fn. 56)
This was a large demand to make from the members of the restored Parliament. They were legitimists of the most pronounced type, and, overlooking all flaws in their own title, regarded themselves, not as a provisional government placed in power by the Army, but as the only lawful government of England. They based their title on the Act against the dissolution of the Long Parliament, passed in 1641, (fn. 57) arguing that "by a law made by an undisputed authority the Parliament could not be dissolved without its own consent, which had never yet been given." (fn. 58) Hence the dissolution of that Parliament by Cromwell was null and void; all the so-called Parliaments which had met since 1653 were but pretended authorities, and all the Acts passed by them were null and void. This position is not explicitly set forth in the declaration of the restored Long Parliament, but it underlay all their policy, and was assumed as a constitutional axiom by them. It is clearly set forth in a pamphlet written by Marchamont Nedham, which was published on August 17, 1659. (fn. 59)
"A Dissolution," says Nedham, speaking of Cromwell's action, "it could not be, but (as now it is called) it is rightly termed only an Interruption of its sitting; for, in matter of power by Law the Lawyers know well enough, it is a sure Maxim Id solum possum quod jure possum, i.e. That a man can do nothing that is valid, but onely what he doth according to Law. Now then, if the Protectors Act of turning out the Parliament were a valid Dissolution it must have been so by some Law; and that Law must be either some Law of the Nation that enabled him to do it, or else it must be the Law of War. As to the former, it is evident he had no Law of the Nation to justifie the Action; and so, if any Law, it is that of War which must make it good. Now that he could not do it by the Law of War, is evident likewise, because his Military capacity was derived from the Parliament, they (who had the whole Right of war in themselves) having given him his Commission to Militate for them (that is to say, for the people represented by them), and so he could not properly or lawfully Militate or use a Right of war against them, who had no lawful power but what he derived from them; whereby it being evident he could make no legal Dissolution of them, Ergo, By Law (notwithstanding him) the Parliament remains in being, and the Soldiery having withdrawn the force that was over it, it followeth without straining, That having never been lawfully dissolved, they remain legally the same Parliament they were before . . . Seeing the Parliament was still in Being, being only suspended for a time from the exercise of the supreme power, then all that was done in pursuance thereupon in reference to the exercise of supremacie, must in Law be void and null, and the intervening space of time be reputed as a great Chasma, a praeternatural vacuity or dead interval, wherein all the Acts of supremacie and matters relating thereto, that were used, became legally defunct as soon as they were done, coming into the world still-born; and so those Intervening Assemblies of the people, not having had the legal Force and vertue of Parliaments, they are now properly called Conventions for distinction sake."
When the Army called upon the Parliament to legalise even temporarily the enactments of all these "conventions" it was demanding a concession of a far greater magnitude than it realised. Nevertheless, at the moment when the demand was made the Parliament felt far too weak to refuse. Accordingly, on May 21 the Petition of the Army was read clause by clause in the House. Resolutions were passed promising the fulfilment of the desires expressed in the petition; four clauses were referred to a grand committee of the House, and that on the legislation of the Protectorate was referred to a special committee. Twenty-seven persons were instructed "to take into consideration all Laws, Orders, Declarations and Establishments made in the several changes and alterations of government, that have been in these nations since the 19th of April 1653, and not yet particularly repealed, and to present their opinion to this House what is fit to be done thereupon; and to bring in an Act or several Acts, if they shall see cause." Baron Thorpe and Sir Thomas Widdrington were made specially responsible for the task laid upon the committee. (fn. 60) The committee seems to have made no report, and on August 15 the House ordered "that the Committee to whom it is referred to consider of the Acts and Ordinances be revived and sit this afternoon." (fn. 61)
Very little was done by the Parliament itself to carry out the desires of the Army in this respect. The legislation enacted dealt mainly with legal proceedings, revenue matters, and the militia. In the Assessment Act of June 18 the assessments imposed by the Protector's Parliament were confirmed, and the powers given to collectors and other officials "by pretence of Parliamentary authority" were continued. (fn. 62) In the Act for the continuance of the Customs and Excise passed on September 28 the enactments of the Protector's Parliament were in like manner confirmed. (fn. 63) Legal proceedings between April 19, 1653, and June 1, 1659, were also confirmed by the Act of Indemnity passed on July 12, 1659. (fn. 64)
On the other hand, the Act confirming Sales ordered to be brought in on May 23, 1659, was allowed to drop. (fn. 65) Other bills of the same kind in like manner were if introduced not proceded with; for instance, a bill confirming the title of soldiers who had been allotted lands in Ireland. (fn. 66) Thereby titles to property based on the enactments of the late government remained in a state of uncertainty.
Further, the Cromwellian union with Scotland being held invalid, the bill of the Long Parliament for that purpose, which had passed two readings before the interruption, was ordered to be revived and reintroduced. (fn. 67) On June 25 a new bill for the purpose was resolved upon. (fn. 68) The new bill was read a second time on July 30, but proceeded no further. (fn. 69) Its history is traced, and the causes which led to this delay are explained in Professor C. S. Terry's The Cromwellian Union. (fn. 70)
These and other indications of the temper of the Parliament made it clear that the general confirmation of the legislative acts of the last five years which the soldiers desired was not to be expected. The discordance between the policy which the Army had urged Parliament to adopt and that which the Parliament had determined to follow, was openly declared in October 1659, when the conflict between the two powers came to a head. On Tuesday, October 11, Parliament passed "an Act against the Raising of Moneys upon the People without their consent in Parliament." (fn. 71) The Act did much more than its title implied, for it definitely annulled all laws passed between the expulsion of the Long Parliament in 1653 and its restoration in May 1659. There were, however, two provisos, one confirming the Act of Indemnity, the other saving the rights of purchasers of lands in England and Ireland.
"The first address from the army had proposed that the acts passed during the Protectorate should be confirmed, and Parliament had hitherto merely insisted on a few exceptions: it now not merely rejected it altogether, but passed a resolution of exactly opposite import. All Acts passed between the violent dissolution of Parliament in 1653, and the day on which it reassembled in 1659, whether issued by a single person or by his Privy Council, or by a convention claiming parliamentary powers, were to be considered null and void unless confirmed by the present Parliament. The army had demanded that these acts should be valid until actually repealed; Parliament pronounced them invalid until renewed or confirmed—a distinction of immense importance. The resolution now adopted threatened to undo all that had been done under Cromwell, including the union with Scotland, which, as the official journal informs us, was the subject of a protracted debate. The system of government established in Ireland, the agreements made with the English delinquents, the grants of money which had been made to various individuals, the proposed reforms in the Church affecting both persons and property, all was endangered: the whole legal system of the three kingdoms was thus destroyed at a blow. No other political authority but that of this so-called Rump Parliament, which itself represented a minority from which all antagonistic elements had been excluded, which had been dispersed by force and again restored, was to be recognised, and its decrees alone were to be lawfully binding;—a principle eminently flattering to the egotistic vanity of its members. Following the example occasionally set by legitimate princes when restored to their thrones, this parliamentary body denounced as unlawful all that had been done during its exile from power. Such a course was perhaps inevitable if it wished to secure a firm footing in its struggle with the army. But it was equally certain that the latter, now that the ground was cut away from under its feet, would be roused to as vigorous a resistance." (fn. 72)
The Army answered this defiance by an appeal to force, and on October 13 the Long Parliament was a second time expelled. In the declaration which the officers published in defence of their conduct on October 27, 1659, they dwelt at length on the consequences of the Act, and made it one of their chief accusations against the Parliament.
"Upon Tuesday the next day after, a Bill was brought into the House, and contrary to the usual Orders of Parliament, thrice read in one and the same day, and passed into an Act, Thereby enacting, That all Orders, Ordinances, and Acts made by any single person and his Council, or by both or either of them, or otherwise, or by any Assembly or Convention pretending to have authority of Parliament, from and after the 19 day of April 1653, and before the 7 of May 1659, and which have not been or shall not be enacted, allowed, or confirmed by this present parliament, be, should be, and were thereby declared, deemed, taken and adjudged to be of no force or effect, from and after the said 7 of May 1659, which was altogether contrary to what was humbly desired in the third Proposal of the Petition and address of the 12 of May 1659, and to what they gave us just grounds to expect, having committed that Proposal to a Committee of their own, to bring in such Bill or Bills for that purpose, as they thought necessary.
And in the same Bill it was likewise contained, That no person or persons should after the 11 of October (being the very day that the said Act was hastily passed) raise Moneys without consent of the people in Parliament, thereby in an instant putting a doubt and discomposure upon all men's minds that are concerned in matters of that nature, so that if anything should cross such their strange proceedings, the army might be necessitated to that odious refuge of free quarter, or else be exposed to such provocations, through the want of a fit provision for their subsistence, as might alienate their minds from that care and duty that is incumbent on them, for the peace and security of the Commonwealth.
And not onely so, but the other mischiefs arising from this precipitate Act, will prove many and great. For then the most choice and godly ministers of the nation, will be found to be comprised therein, and themselves and their maintenances altogether avoyded, and great numbers of prophane and scandalous ministers which have been ejected for near the space of six years past, will then be reestated; the adventurers, and souldiers lands in Ireland left at a loss and in confusion; the rebels that were transplanted there, be at their liberty to return; the union between England and Scotland rendered invalid; all the compositions and assurances thereupon given and made to the Protestants in Ireland, and to the excepted persons and delinquents in Scotland and Ireland made insignificant; divers souldiers, who have for a long time in our former times of difficulty, and have since either voluntarily upon reducements, or otherwise, left the army, and betaken themselves to severall occupations and callings within severall towns, and occupations for a livelyhood to them and their families, are not onely for the future disinabled to profess and use the same, but likewise left liable to the severity of the laws and customes for all things done contrary thereunto since the 7 of May 1659. All estates conferred on any person or persons by former governments, though upon never so valuable and publick considerations, left in a dangerous and uncertain condition, to the unravelling and unknown discomposure of several mens estates and interests, the consequences whereof will in short time appear by the sad effects of multiplying suits and vexations of innocent persons if the said Act be deemed as valid." (fn. 73)
The manifestos and declarations published on behalf of the Parliament made no effective answer to these complaints. It was pointed out, however, by one of its unofficial defenders, that the proviso on behalf of the purchasers of land in Ireland was expressly designed to protect them against the consequences pointed out. And it was added that what the officers were really concerned about was "their estates which the tyrant Oliver had given them." (fn. 74)
The quarrel between Army and Parliament rapidly resolved itself into a question whether England was to be governed by military or civil power, and the question of the validity of the laws passed between 1653 and 1659 slipped into the background. After the restoration of the Long Parliament on December 24, 1659, the question seems to have been regarded as definitely settled in favour of the Parliament. In the discussions which led to the readmission of the "Secluded Members" on February 21, 1660, that is of the members expelled by Pride's Purge on December 6, 1648, the question for one moment emerged again, but this time it appeared in a very reduced and restricted form. Monck's officers wished to extract from the representatives of the "Secluded Members" a pledge that they would pass an Act to confirm them in the possession of their lands. The representatives of the "Secluded Members" replied that "as to confirmation of sales and dispositions of lands, they had all been made since the seclusion, and they would not alter them, but rather mediate with the next Parliament to pass an Act for their confirmation." Though this was far from satisfying the officers, they were obliged to accept it as sufficient. In the circular letter which Monck and his officers sent to their comrades throughout England the point was dealt with as follows:
"As we are confident the present Parliament now sitting, will not repeal any of the Acts, Ordinances, or Orders, of this present Parliament, for sales or public dispositions of lands, so we shall in our station observe, and cause to be observed all other Acts and Ordinances of this Parliament whatsoever, and humbly interpose with the next succeeding Parliament, not only to pass a further Act of confirmation of all such sales and dispositions of lands, here and in Scotland, but also of the distributions and dispositions of lands and houses in Ireland to the soldiery, Adventurers, or any other persons, made by or in pursuance of any of the Acts, Ordinances, or Orders of this present Parliament, or any pretended parliamentary authority." (fn. 75)
The "Secluded Members" restored by Monck to the exercise of their rights on February 21, 1660, observed the terms which Monck imposed upon them. Probably they would have liked to vote all the laws passed since Pride's Purge null and void, but they refrained from making the attempt. Monck was not to be trifled with. Accordingly, though they annulled, on March 2, a number of votes, they merely repealed the Acts for the sequestration of those who had taken part in Sir George Booth's insurrection, and passed a new Militia Act in place of that passed on July 26, 1659. They superseded Cromwell's Ordinance for the approbation of ministers by the appointment of a new body of commissioners for that purpose, and revived the Ordinance of August 29, 1648, for the establishment of Presbyterian government in the Church. The burning question of an Act for the confirmation of sales they made no attempt to touch. Finally they passed an Act dissolving the Long Parliament on March 16, 1660, and summoning a new one for April 25 following.
The restoration of Charles II. was now certain. The new Parliament—known as the Convention—met on April 25, and on May 1, 1660, the formal restoration of the monarchy took place. From this moment the fate of the legislation of the Interregnum was practically determined. The question at issue ceased to be the validity of the Acts passed since 1649, and became that of the validity of all the Acts and Ordinances passed since the summer of 1642. Legally, the legislation of both periods was equally invalid, since none of these enactments had received the King's assent. Nevertheless, Parliament at first approached the subject with some timidity, and seemed inclined to nullify part only of this legislation.
The earliest resolutions of both Houses indicated this intention. On May 15, 1660, the Upper House appointed a committee of fifteen peers "to view and consider of what Ordinances have been made since the Lords in Parliament were voted useless, which now pass as Acts of Parliament; and their Lordships are to draw up and prepare an Act to present to this House to repeal what they think fit." Chief Baron Wylde and Serjeant Malet were ordered to assist the deliberations of the committee. (fn. 76) For a moment the Lower House had seemed disposed to undertake a similar task. On May 1, after voting the restoration of the old constitution, it ordered "that it be referred to a committee to peruse the Journals and Records, and to examine what pretended Acts or Orders have been passed, which are inconsistent with the government by King, Lords and Commons, and report them, with their opinion thereon to this House." (fn. 77)
Neither committee appears to have reported. Both Houses evidently came to the conclusion that it was better to assume without discussion that the legislation of the last eighteen years was invalid, and to embody in new bills the substance of any measures it was desirable to confirm. On May 3 the Commons appointed a Committee to consider the King's declaration and to prepare bills accordingly. (fn. 78) During the next few days bills were introduced for indemnity, for the confirmation of sales and judicial proceedings, for establishing ministers settled in livings, and for the abolition of tenures in capite and the Court of Wards. On June 1 the King gave his assent to three Acts. The first was an Act for legalising the meeting and proceedings of the Convention. The second was an Act for putting into execution an ordinance passed by the two Houses for levying an assessment of £70,000 per month, which was in itself a recognition that ordinances were invalid without the King's assent. Apparently the Act of confirmation was passed because the Lords demurred at passing the Ordinance without some such expedient. (fn. 79) The third Act, which was for the Continuance of Judicial Proceedings, continued, till August 1, two of the legal reforms of the Commonwealth. It confirmed the Act of November 22, 1650 authorising judicial proceedings in English, and a clause enabling persons to plead the general issue contained in an Act of October 23, 1650. (fn. 80) By implication this asserted the invalidity of all the Acts passed by the Long Parliament after the revolution of 1649.
The Act for the Confirmation of Judicial Proceedings passed the same session, which received the King's assent on August 29, enacted that judgments and legal proceedings since 1642 should be as valid as if the judges and others had acted by virtue of a true, just, and legal authority, as if the same and the entry and enrolment thereof were in Latin, and as if the several Acts and Ordinances, or pretended Acts and Ordinances, made by both or either Houses of Parliament, or any Convention assembled under the name of a Parliament, or by Oliver Cromwell late styled Protector . . . . . had been good, true, and effectual Acts of Parliament." (fn. 81)
Another Act confirmed marriages solemnised before Justices of the Peace or according to the direction of any reputed Act or Ordinance since May 1642. (fn. 82)
On the other hand, while all the Acts and Ordinances of the Interregnum were thus by implication pronounced invalid, six of the Acts passed by the Convention Parliament during 1660 were based on enactments of the revolutionary period, or were substantially re-enactments of them. The Act against Usury which fixed the legal rate of interest at 6 per cent is almost word for word the same as the Act of August 8, 1651. (fn. 83) The Act authorising disbanded soldiers to practise trades to which they had not been apprenticed is a repetition of the Protector's Ordinance of September 2, 1654. (fn. 84) The Navigation Act of September 13, 1660 is but an expansion of the Navigation Act of the Commonwealth October 9, 1651. (fn. 85) The Act for erecting and establishing a Post Office is similarly an expansion of the Act for settling the Postage of England, Scotland and Ireland passed in 1657. (fn. 86) The prohibition of the planting of tobacco in England, lest it should destroy tillage in England and damage the trade of the English plantations, by the Act of April 1, 1652, was repeated in 1660 (fn. 87) with some interesting changes in the preamble. Finally, the Act taking away the Court of Wards and Liveries and Tenures in Capite and Purveyance embodied the substance of an Ordinance of the Long Parliament passed on February 24, 1646, and of two Acts passed by Cromwell's second Parliament. (fn. 88)
These enactments represent only part of that portion of the legislation of the Interregnum which gained a permanent place in the statute book. Several Acts passed in 1661 and in subsequent years are also based on measures passed during the Long Parliament or the Protectorate. The prohibition against stealing or killing deer contained in the Act of July 24, 1651 is re-enacted in 13 Car. II. c. 10. The Act of November 14, 1650 for regulating the making of stuffs in Norfolk and Norwich reappears in 14 Car. II. c. 5; and the Act for the better packing of Butter of March 12, 1649–50 in 14 Car. II. c. 26. The provisions about Hackney coachmen in London contained in 14 Car II. c. 2 were evidently suggested by Cromwell's Ordinance of June 23, 1654; the provisions for establishing a corporation for the relief and employment of the poor in London contained in the Ordinance of December 17, 1647 were to a certain extent adopted and extended to the whole of England by 14 Car II. c. 7. Our present system of Highway Laws originated in Cromwell's Ordinance of March 31, 1654, "for the better amending and keeping in repair the Common Highways within the Nation;" on that Ordinance the Act of 14 Car. II. c. 6 "for enlarging and repairing of Common Highways" was modelled. (fn. 89)
Some later statutes are also closely related to enactments of the Interregnum period. The Act for settling the Draining of the Great Level of the Fens called Bedford Level (15 Car. II. c. 17) is a continuation of an Act of May 29, 1649. (fn. 90) The Act for taking away Damage Cleere of 1665 is a re-enactment of an Act of January 17, 1651. (fn. 91) The Act passed in 1677 "for the better observation of the Lords Day, commonly called Sunday," 29 Car. II. c. 7, is but a simpler and milder version of the Act for the same purpose passed in 1657. (fn. 92)
With these exceptions the existence of the legislative enactments passed during the Interregnum came to an end in 1660. As we have seen, the Convention Parliament contented itself with nullifying them indirectly by implication, and passed no resolutions expressly declaring their invalidity. The formal nullification of the Acts and Ordinances was effected by a declaratory Act passed in 1661.
The second Parliament of Charles II. met on May 8, 1661. It was full of high-flying Royalists eager to assert their principles both by their legislation and their resolutions. "It cannot be expressed, hardly imagined," writes Clarendon, "with what alacrity the Parliament entered upon all particular affairs which might refer to the Kings honour, safety, or profit. They pulled up all those principles of sedition and rebellion by the roots which in their own observation had been the ground of or contributed to the odious and infamous rebellion in the Long Parliament." (fn. 93)
Its first piece of legislation was an Act confirming the chief public Acts passed by the Convention Parliament, while declaring that "the manner of the said assembling, enforced by the difficulties and exigencies which then lay upon the nation, is not to be drawn into a precedent." (fn. 94) It then settled the controversy which had caused the Civil War by an Act declaring that the control of the Militia "ever was the undoubted right of his Majesty and his royal predecessors . . . . and that both or either of the Houses of Parliament cannot nor ought to pretend to the same." (fn. 95)
At the same time, in the Act for the Safety and Preservation of his Majesty's person and government, it was declared that "all orders and ordinances, or pretended orders and ordinances of both or either House of Parliament, for imposing of oaths, covenants, or engagements, levying of taxes, or raising of forces and arms, to which the royal assent, either in person or by commission, was not expressly had or given, were in their first creation and making, and still are, and so shall be taken to be, null and void to all intents and purposes whatsoever." (fn. 96)
Not satisfied with this statutory assertion of the invalidity of all the legislation between 1642 and 1660, the two Houses, in order to impress the principle upon the minds of the people, proceeded to sentence half a dozen of the most obnoxious enactments of the Interregnum to public destruction.
On May 14 the House of Commons appointed a committee of ten members to search the Journals of the House in order to report what they should think fit to be expunged as treasonable and scandalous to his Majesty, and his Royal Father of blessed memory." They were also required "to make search in the several Courts of Justice, whether the traitorous writing called The Instrument of Government be there remaining." (fn. 97) What success they met with in this last quest does not appear, but they probably reported on May 17. On that day, by 228 to 103 votes, the House resolved that the Solemn League and Covenant should be burnt by the hands of the common hangman. It is remarkable that Secretary Morrice was one of the tellers for the minority. (fn. 98) The Lords concurred with this vote and ordered the Covenant to be burnt on Wednesday May 22 in the New Palace at Westminster, in Cheapside, and before the Old Exchange. They also ordered that it should be "forthwith taken off the Record in the House of Peers." (fn. 99) On May 24 the Commons followed this up by dooming five other enactments, viz., the Act for erecting a High Court of Justice for the trial of Charles I., the Act declaring England a commonwealth, the Act for subscribing the Engagement, the Act for annulling the title of Charles II., and the Act for the securing the Lord Protector's person. (fn. 100)
This day (according to Order of both Lords and Commons) that pernicious Oath called the Solemn League and Covenant was burned by the hand of the Common hangman in the New Palace Westminster; in Cheapside, and at the Old Exchange: The executioner (to give the hangman his due) did his part perfectly well; for having kindled his fire he tore that Solemn League into very many pieces: first burned the Preface, and then cast each parcel solemnly into the fire, lifting up his hands and eyes, not leaving the least thread, but burn'd it root and branch (what a damnable wicked Covenant was this, that makes us applaud the very hangman for burning it). This is that fatal Oath born in Scotland, and fed in both Kingdoms with the blood and livelyhood of more thousand Christians then this Oath had words; for you formerly were told that this Covenant consists of that Beastly number of 666 words, neither more nor less." (fn. 101)
This day the Bailiff of Westminster having according to Order caused all things to be in readiness, the Serjeant to the House of Commons brought out that cursed traiterous writing in parchment (falsly entituled, An Act of the Commons assembled in Parliament, for erecting an High Court of Justice for trying and judging Charles Stuart) intending thereby that undoubted saint and martyr King Charles the first, of ever blessed memory, which being delivered into the hand of the common hangman, was by him burned about nine in the morning, in the midst of Westminster-Hall, whilst his Majesties Courts (the Kings Bench and Common Pleas) were sitting.
Whoever remembers what was done at Westminster this very day May 28, 1642 notwithstanding our late Soveraign of blessed memory declared expressly against it, may easily read the sin in the punishment, and behold how the voting armed men (without, and against the King's commission) was but a preface to that monstrous accursed high Court of Justice, which (assisted by armed men) spilt the most precious blood in the world; and now that horrid Act or Ordinance which pretended to authorise those wicked regicides to arraign and murther their own Soveraign, was this very day, May 28, burn'd in the same place, by the same hand that had justly haltered many of these monstrous judges before.
The same remarkable day, at full Exchange time, between the hours of twelve and one of the clock, by the Sheriffs of London, in the sight of the Serjeant at Arms, the common hangman burned two other treasonable writings.
The one falsly called, An Act for subscribing the Engagement, which traiterous Engagement (against a King and House of Peers), as it was set up by a Junto of lawless Commons without Peers so now 'twas sentenc'd (in some decent recompence to the Peers) by as honourable a House of Commons as ever sate in the Parliament of England.
The other falsly called, An Act declaring and constituting the People of England to be a Commonwealth and Free-State. Such a Free-State as enslav'd the whole nation in so unexpressible villanage, that there is not any one syllable so odious to the people of England, as Rump." (fn. 102)
Pepys from a balcony over against the Exchange witnessed the burning of these two Acts and made the appropriate reflections. (fn. 103)
The one falsly called, An Act for the security of his Highness the Lord Protector his Person, and continuance of the Nation in peace and safety. But the executioner had finished, above four months since, with his lothsome carcase, and secured his Highness on his proper pole, with his son in law, and his President, on the top of that Hall, where this writing was sent into the fire below. And happy for England, if Westminster Hall had twenty years since been paved and pinacled as it is this day.
The other falsly called, An Act for renouncing and disannulling the pretended title of Charles Stuart, etc, thereby meaning our most gracious Lord and Soveraign King Charles the Second. This is the day that brought into the world our most gracious Soveraign King Charles the Second, on which there could not be a more proper bonefire than by burning this traiterous writing for renouncing his Majesties title to these kingdomes, which is confessedly known to be stronger (and by more obligations) than any of the princes in the world can boast of anything they possess." (fn. 104)
Since no order was made for the destruction of any others of the Acts and Ordinances of the Interregnum the originals of the whole series should have been carefully preserved amongst the records of Parliament. Many of the original Ordinances of the period from 1642 to the abolition of the House of Lords in 1649 are still extant, and are catalogued amongst the papers of the House of Lords in the Reports of the Historical MSS. Commission.
On the other hand, the originals of the Acts passed from 1649 to the spring of 1660 appear to have perished. The Record Office possesses merely printed or manuscript copies of the Acts in question. It is possible to trace the history of the Acts up to the Restoration. Orders were given by the Parliament to insure their proper preservation. On January 5, 1649, when Scobell was appointed clerk in place of Elsynge, the House ordered "that a book of vellum be forthwith prepared for entering all the public acts of this House; and that all the public acts of this House be entered in the said book accordingly." (fn. 105) On September 18 in the same year it was ordered "that all acts of Parliament that have or shall pass this House be engrossed and enrolled." (fn. 106)
It is also possible to trace the hands through which they passed. The first custodian was Henry Scobell, who had been appointed clerk of the House of Commons by a vote on January 5, 1648–9, and Clerk of the Parliament for life (in place of John Browne) by an Act passed on May 14, 1649. Scobell having become clerk of the "Other House," the House of Commons on January 20, 1658, elected John Smythe clerk of their House, and ordered Scobell to deliver up to him all the records belonging to the House. (fn. 107) Scobell made some difficulty about their delivery. Under January 30 there is the following entry in Thomas Burton's Parliamentary diary. (fn. 108)
"In the afternoon the Committee about the Records and Writings to be delivered to Mr. Smythe, sat in the Speaker's Chair, where Mr. Scobell, by his servant Mr. Simons, had sent an inventory of all the Records and Writings belonging to the House. The Committee being not satisfied therewith, went to Mr. Scobell's house themselves, viz Francis Darley, Bodurda, Bond, Matthews, Pedley, Scot, Stone, Lucy and I, and demanded all the Records, and said those that he had inventoried were not all, for there were none of the Bills nor Acts that had passed. He insisted, that all Acts of Parliament, after they were passed, were no more the Records of the one or the other House, but the public Records of the nation; whereunto every one might resort: and being specially charged with the custody of them, he could not safely deliver them up on an implicit order, unless the order had said Act, Acts, or Bills passed, etc; and further, he said, that there was not one Bill in his custody that did lastly pass in the House of Commons, for they were again always sent up to the House of Lords, after the Commons had concurred.
On February 1 the Committee reported the difficulty which had arisen to the House, which accordingly amended the resolution passed on January 26 for the delivery of its records by adding the words "Acts and Ordinances." It was also voted that "the boarded House within the Court of Requests, and the room thereto adjoining, towards the Court of Wards, be the place for the laying up and keeping of the Journal-books, Records, Acts, and Ordinances belonging to this House, which are to be delivered by Mr. Scobell." (fn. 109) Presumably Smythe received the records specified.
On May 6, 1659, when the members of the Long Parliament resumed their seats at Westminster, John Phelps was temporarily appointed clerk, and Smythe was ordered to "forthwith bring unto the Parliament the Parliament-Roll of this present Parliament; and all books and records of Parliament since the thirtieth of January 1648 to the twentieth of April 1653." On May 13 Thomas St. Nicholas was permanently appointed Clerk of the Parliament, and Smythe was ordered to hand over to him "all Journal-books and other books and records belonging to the House." (fn. 110)
On the day when the Convention Parliament met, April 25, 1660, William Jessop was appointed clerk to the House of Commons. (fn. 111) John Browne was restored on the same day by the Lords to the office of Clerk of the Parliament, and Scobell was ordered to vacate the official residence of the clerk, and to deliver to Browne the house itself, the tower in which the records were kept, and the records themselves. (fn. 112) In like manner the Commons ordered Scobell and St. Nicholas on May 8 to deliver up to Jessop all the records of the proceedings of the Commons and other papers. (fn. 113) This order was repeated in a more detailed form on May 11.
"Ordered, that all Acts and Ordinances, Journals, Records, Books, Papers of Proceedings, belonging to the House, or concerning the same or the Proceedings thereof, as well in the Time it acted as a single House, as before, which are now in the custody of Henry Scobell, Esquire, Thomas St. Nicholas, Esquire, or any others, or that hath come to the hands of the said Mr. Scobell, or Mr. St. Nicholas, or either of them as Clerks of this House, be forthwith delivered to William Jessop Esquire, now Clerk of this House; to be kept among the Records of this House." (fn. 114)
Thus the originals of the legislative enactments of the Protectorate were duly transferred to the custody of the proper officers instead of being lost, as many of the official records of the Interregnum were. As they are not now amongst the Archives of the Lords or Commons, their destruction must have been deliberate. Fortunately the enactments of the period from 1649 to 1660 were printed with much more care than those published between 1642 and 1649 so that the loss of the originals is less important.
In conclusion, I wish to thank Mr. W. M. Graham-Harrison for placing his notes at my disposal in writing this introduction. My thanks are also due to Mr. C. T. Flower of the Public Record Office, who has put together the full and elaborate subject index, and to Mr. T. Craib, Librarian of that institution, who has compiled the exhaustive index of names and places. To my co-editor, Mr. R. S. Rait, I am indebted for help throughout. He undertook the task of seeing the text of the Acts and Ordinances through the press, and drew up the chronological table of them contained in this volume. C. H. FIRTH.