in command of occupied territory, and not that of a sovereign to whom the bulk of the political society give willing and habitual obedience. It is the best testimony to Cromwell's capacity as a general and his sagacity as a statesman that he was able, during his life, to maintain a semblance of civil government, which kept the peace at home, and gave England an honourable position among foreign states. Cromwell's death soon showed that the whole edifice of his government depended solely on himself. The army got out of control, and set up and pulled down the civil government at will. The constitution which it had created, and with which Cromwell had tried to work, disappeared as soon as its support was withdrawn.1 Naturally the old combination of the Royalist and Presbyterian parties again appeared; and when the support of the section of the army led by Monk was secured, the Restoration was assured. All these experimental constitutions disappeared, and apparently left no trace behind. Would it then be true to say that this period of political controversy and legislative activity left no mark upon English public law? The Permanent Effects of this Period upon the Development of English Public Law Cromwell's figure dominates the whole of this period. He won the first and the second civil wars for the Parliament. He struck down the monarchy. He subdued both Ireland and Scotland to the Commonwealth government. He prevented the remnant of the Long Parliament from making themselves into a permanent ruling oligarchy. By means of his control over the army he governed the country while he lived under a republican constitution. But the Restoration, which brought back the monarchy and the church as they existed in 1641, seemed to have destroyed the whole of his achievements. Would it not then have been better if, in 1641, the views of Hyde and the conservative minority in the House of Commons had prevailed? To this question a negative answer must be given. Although the positive results of Cromwell's work disappeared at the Restoration, the negative results, as Gardiner has pointed out, survived. He made personal monarchy, both as the Tudors and as Charles I. had understood it, impossible for the future. He made it impossible for a Parliament again to attempt to perpetuate itself in defiance of public opinion. Thus, when the monarchy was restored, the whole position both of the monarchy and the Parliament was altered. 1 Above 148. Cromwell's Place in History 102, 2 Ibid. VOL. VI.-II This comes out clearly enough in the Declaration of Breda.1 Indemnity, a measure of toleration, and a measure to quiet titles were promised; but the details were all referred to Parliament. It is clear that Parliament has attained a position in the state which it never possessed under the Tudors or the two first Stuart kings. It was no longer a body to be called in occasionally to assist the king's government by sanctioning the new legislation, or by voting the supplies which that government considered to be necessary. It was as much a permanent part of the government as the king himself, with an initiative of its own, and an acknowledged right to survey the whole field of political action. The experience which it had gained during this period made its survey intelligent. It had become familiarized with all parts of the machine of government. The mysteries of state, to which James I. was so fond of referring, were now no mysteries for it.2 And in its survey must now be included ecclesiastical as well as political questions. The king could no more stop the discussion of questions affecting the church, than he could stop the discussion of questions affecting his prerogative. It follows therefore that, for the future, neither church nor king could, for any great length of time, use their powers to pursue a policy of which the nation disapproved. The development both of the church and of the prerogative were now subject to, and would be moulded by, the will of the nation as expressed in Parliament. And just as the authoritative position of Parliament had been secured, so had the supremacy of the law. The Act of the Long Parliament which abolished the Star Chamber, and the Star Chamber jurisdiction exercised by the provincial Councils, had secured this result. But the experience of the nation under a Protectorate, which had constantly found itself under the necessity of violating the law, had increased the national desire to see the law really supreme. Juries during the Protectorate had shown this as clearly as a jury was afterwards to show it in the Case of the Seven Bishops; and the feeling that the restoration of the monarchy meant the restoration of the supremacy of the ordinary law was one of the chief reasons why the nation was practically unanimous in demanding it. The conditions, therefore, under which the continuous development of English Public Law was resumed at the Restoration, were very different from the conditions under which it would have 1 Above 148. 2 See Jenks, Constitutional Experiments of the Commonwealth 2-5. 3 Above 112. For instance, Lilburne's two trials and acquittals, Gardiner, Commonwealth and Protectorate i 165-169; ii 297-298. been resumed if an agreement had been made with the king in 1641, or even in 1647. Formally perhaps the law would have been the same; but substantially the difference was immense. These eighteen years had permanently altered the relations of king, Parliament, and courts to one another. As a result of this alteration the executive, legislative, and judicial powers in the state begin to assume the legal position which they hold in our modern law. The conditions under which our modern law of the constitution has grown up have been reached. III THE REIGNS OF THE TWO LAST STUART KINGS AND THE REVOLUTION SETTLEMENT The evolution of public law during this period, and its final settlement upon its modern basis, were influenced, to a greater extent than at any other period in our history, (i) by the ecclesiastical, and (ii) by the foreign policy of the state. (i) We shall see that the ecclesiastical policy pursued by Charles II., in the earlier part of his reign, was influenced by the fact that, if he had any religion at all, he was a Roman Catholic 1 -though, from motives of policy, he was never publicly reconciled to that church till he was dying. We shall see, too, that all James II.'s actions were governed by the fact that he was a fanatical Roman Catholic, and wholly under the influence of the Jesuits. 2 In Charles II.'s reign these facts had aroused a formidable opposition to the crown; and, in James II.'s reign, it caused the church of England, which was usually the firmest supporter of the king, to pass over to the opposition. A union of Whigs and Tories, who acted together in domestic politics for the first and only time in their history, succeeded in effecting a bloodless Revolution. But though James II.'s policy had aroused a universal opposition, there was a widespread legitimist feeling in the country, which shrank from any interference with the right line of the succession to the throne. The Revolution could not have been so easily and so peacefully effected, if it had not found in William of Orange a leader whose mother was a daughter of Charles I., and whose wife was the eldest daughter of James II., and, till the birth of a son to James, the next heir to the throne. The fact that that son was born so opportunely for James that he was generally regarded as suppositious, reconciled much of this strong legitimist feeling to what was, in its view, not a break, but only an anticipation in the order of succession. (ii) William would never have come forward as the leader in an English Revolution, if he had not been driven to take this course by the exigencies of European politics. The governing factor in the European politics of the day was the danger arising from the growth of the power of France under Louis XIV. Charles II. was quite ready to use the ambitions of Louis XIV. to attain the object which he had most at heart-freedom from the control of Parliament. Obviously he could not attain this object unless he could render himself in some measure financially independent; and he found that he could accomplish this by the sale to Louis of the neutrality of England. By abandoning all his earlier schemes to establish Roman Catholicism in England, and all his attempts to favour or even to protect the Roman Catholics; by allowing Parliament to disgust the nation by its violence, and by appealing to the strong legitimist feeling prevailing in the country; he was able, with the help of Louis's subsidies, to crush the opposition, and to dispense with Parliament during the last four years of his reign (1681-1685). James, who had none of Charles's political ability, with even greater eagerness pursued the same foreign policy, not so much in order to render himself independent of Parliament, as to effect what Charles had seen to be impossible-the establishment of Roman Catholicism. It was therefore obvious that William could not secure the adhesion of England to his great continental alliance against Louis XIV. while James was on the English throne. It was this fact which induced him to take advantage of the national detestation of James's ecclesiastical policy, and accomplish the Revolution. Thus the ecclesiastical and foreign policy of the two last Stuart kings made the Revolution possible; European politics gave it a leader; and the matrimonial alliances of the Stuart family enabled the majority of the nation to accept that leader as their king. It is clear, therefore, that we cannot understand the evolution of the public law of this period without a firm grasp of the political events which shaped it, and of the characters and aims of the actors who made those events. I shall, therefore, in the first place, sketch briefly the political, constitutional, and religious environment in which it was evolved. In the second place, I shall sketch the development of the principles of that law during this period. In the third place, I shall consider the influence which political theories, during this period, exercised on the development of those principles. The Political, Constitutional, and Religious Environment The Declaration of Breda had, as we have seen,1 laid down four principles as the conditions under which a Restoration was to be effected—a general amnesty, liberty of conscience, security of property, payment of arrears to the army; but we have seen that the manner in which these principles were to be applied was left to Parliament. Parliament, therefore, had a very free hand to settle the limits of their application. The work was done partly by the Convention Parliament which had recalled the king, and partly in the first sessions of the Long Parliament of Charles II.'s reign, which sat from 1661-1679. The first Act of the Convention Parliament was to regularise its existence by declaring that the Long Parliament was dissolved, and that it was a true parliament, "notwithstanding any want of the Kings Majesties writ or writs of summons . . . or any other defect or default whatsoever." 2 In 1661, to prevent any possible doubt as to the validity of the most important Acts of the Convention Parliament, divers statutes passed by it were confirmed.3 The Convention Parliament, having regularised its existence, set to work (i) to settle to what extent the legislation of Charles I.'s Long Parliament, and other legislative Acts of the Interregnum, should be accepted as valid; (ii) to introduce new laws on these and other cognate topics; (iii) to carry out the principles laid down by the Declaration of Breda; and (iv) to settle the royal revenue. It was dissolved before it could finish this work; and that work was taken up in a new spirit by the Parliament which succeeded it. I shall consider the effects of the work of these two Parliaments under these four heads. (i) The general principle upon which these Parliaments proceeded was that all the Acts of the Long Parliament, which had received the royal assent, were valid, and that all other legislation was invalid. But to both branches of this principle important modifications were made. In the first place, certain Acts of the Long Parliament, which had received the royal assent, were repealed. Thus in 1661 the Act preventing persons in Holy Orders from exercising temporal jurisdiction," and the Act abolishing the jurisdiction of the ecclesiastical courts (except in so far as it related to the court of High Commission)" were repealed; in 1662 the Act attainting Strafford was repealed;7 313 Charles II. st. 1 cc. 7 and 11; though apparently such confirmation was held not to be legally necessary, below 170 n. 3. * See 13 Charles II. st. I c. 1 § 3; below 166. 513 Charles II. st. I c. 2, repealing 16 Charles I. c. 27. |