Ordonnances of the seventeenth and eighteenth centuries, which entitle the French nation to the fame of being the pioneers in the work of codification.1 But, in spite of this political unrest, English law had begun, during the latter half of the century, to develop in many directions, and, as the result of these developments, to assume its modern form. The history of these developments will form the subject of the two following chapters.

1 See Esmein, Histoire du droit Français (5th ed.) 780-786; they comprise a code of civil procedure (1667); a code of criminal procedure (1670); a commercial code (1673), supplemented in 1681 by a shipping code and a code of marine commerce; la code noir (1685) which regulated negro slavery in America; an ordonnance as to donations (1731); an ordonnance as to wills (1735); an ordonnance on substitutions fideicommissaires (1747); an ordonnance as to forgery (1737).

CHAPTER VII

THE LATTER HALF OF THE SEVENTEENTH

F

3

CENTURY

THE ENACTED LAW

ROM the purely legal point of view, the most important result of the Great Rebellion had been to reduce to insignificance very many of those courts which had, in the preceding period, been formidable rivals of the common law. The jurisdiction of the Council and its various offshoots had come to an end in England.1 The jurisdiction of the court of Admiralty was rigorously curtailed. The court of High Commission had disappeared; and, though the other ecclesiastical courts had been restored, they were firmly controlled by the common law courts. On the other hand, the court of Chancery, though often attacked during the Commonwealth period, had never wholly disappeared. At the Restoration equity began again to develop upon the lines upon which it had been developing before the Great Rebellion; and the court of Chancery, like the courts of common law, took over some of the jurisdiction of the courts which had either disappeared or become definitely subordinate. Thus, just as the Restoration introduced many of the modern features of the political life of the state, so it introduced the dominant modern feature of its legal life-the definite superiority of the courts of common law and the court of Chancery. From henceforward it is quite clear that the main sources of the professional development of the law will be found in the activities of these courts. And this characteristic is reproduced in the enacted law of this period. So far as it touches on legal doctrine, it is mainly concerned with the doctrines of common law or equity. It is true that a small place is still left for the activities of the court of Admiralty and the ecclesiastical courts; it is true that the civilians and canonists of Doctors Commons will develop a 2 Ibid 556-558.

1 Vol. i 515-516.

3 Ibid 611.

8

4 Ibid 431-434.

7 Above 203-208, 243-258

Ibid 435; vol. v 217-218, 299-338; below 640-671.
Below 634-636, 650.

8 Vol. iv 235-237.

302

body of doctrine upon topics which still fall within their jurisdiction; and it is true that some of the topics with which they deal will increase in importance during the eighteenth century. But, during this period, their activity is not very important; and the enacted law relating to matters falling within their jurisdiction is scanty. I shall therefore deal with the history of the branches of law which they developed in the next Book of this History. In this chapter I shall deal with the enacted law of the latter part of the seventeenth century; and, in the following chapter, with the professional development of law and equity during the same period.

We have seen that, in the preceding period, it was necessary, in dealing with the enacted law, to take some account of the proclamations as well as of the Statutes.1 During this period the proclamations have not quite the same importance. After the abolition of the Star Chamber, there was no tribunal which would punish a breach of a proclamation, unless the conduct ordered or forbidden by it was illegal. The legislative supremacy of Par-liament, and the growing definiteness of the restrictions upon the prerogative during Charles II.'s and James II.'s reigns, were restricting proclamations to the sphere of executive as distinct from legislative acts; and this process was complete after the Revolution. Thus some of them simply contain general warnings and exhortations to obey the law, and to refrain from obviously immoral or illegal courses of conduct, such as drunkenness, debauchery, or profanity; and a very large number simply enforce the provisions of Acts of Parliament, or exercise powers which these Acts of Parliament had conferred upon the crown. But though they are for the most part simply executive acts, definitely subordinate to statutes, they illustrate many of those sides of the

1 Vol. iv 296-307.

5

2"The general character of Charles II.'s proclamations is modified by the nonexistence of any special tribunal to enforce them, and they are in consequence enforced by threats of the king's displeasure and of such penalties as may lawfully be enforced," Tudor and Stuart Proclamations i cvii; if the conduct forbidden was not specifically illegal by statute or by the common law, it could only be made punishable if it could be indicted as a nuisance, see ibid no. 3321, which provides that heavy fourwheeled carts which injure the roads are to be treated as nuisances; and no. 3852, which treats the excessive number of hackney coaches as a nuisance, which the king can restrain by prohibiting all which are not licensed.

3"The proclamations from this date lose all characteristics of the Ordinance and become in great measure either mediums of announcements to those concerned, or statutory declarations," Tudor and Stuart Proclamations i cxiii.

Ibid nos. 3211 (1660); 3242 (1660); 3867 (1688); 4076 (1691-1692); 4246 (1697-1698); 4269 (1699).

5 See e.g. ibid nos. 3290 (1660-1661); 3293 (1661); 3300 (1661); 3327 (1661); 3335 (1661); 3366 (1662); 4137 (1694); 4223 (1697); 4226 (1697); 4252 (1698); cp. ibid Introd. i cvii.

national life, and many of those new developments, which appeared to call for regulation by the state. Thus they still afford a good introduction to the statute law of this period; and therefore, by way of introduction to my account of the statute law, I shall say a few words as to the chief topics with which they deal.

2

4

Most of the historical events of the period are reflected in the proclamations. The orders that the thirtieth of January should be observed as a day of humiliation,1 and the twenty-ninth of May as a day of rejoicing, commemorate the victory of royalty. The great Plague, the fire of London, and the Popish Plot 5 occasioned very many proclamations. The proclamation against tumultuous petitions points to the division of the nation into distinct political parties at the end of Charles II.'s reign, and the growing bitterness between them. Proclamations were issued against Monmouth and his supporters; and it was James II.'s proclamation of the Declaration of Indulgence which set in motion the sequence of events which brought about the Revolution. After the Revolution we get the proclamation of war with France, a series of measures directed against Popish recusants and adherents of James II.,10 and many orders necessitated by the recoinage."1

7

All through this period the topic of national defence is the occasion for many various proclamations; and the great bulk of them are concerned with the navy. Thus we get proclamations upon the subject of impressment,12 the encouragement of volunteers,13 the pay, and other allowances,15 made to seamen. But, in spite of these proclamations, there is no doubt that seamen were sometimes defrauded of their wages and other allowances, and sometimes paid, not in cash, but by tickets promising

14

3 Ibid nos. 3426-3442 (1665); no. 3461 (1666) is an interesting collection of sixteen rules for the prevention of infection.

4 Ibid nos. 3470-3477, 3488 (1666); 3491, 3492 (1667).

"Ibid nos. 3656-3667, 3669, 3672-3676 (1678, 1679).

6 Ibid no. 3702 (1679); this petition was drawn by North, C.J. (below 533); Roger North, Lives of the Norths i 226, says, "It is scarce credible with what saucy impudence divers came to the king with petitions signed with numberless hands and frightful hieroglyphics; but with ten persons only in company, so as not to offend against the statute about tumultuous petitions: all which was fully stopped by a proclamation which his lordship penned.'

7 Ibid nos. 3794-3805 (1685).

9 Ibid no. 3999 (1689).

8 Ibid no. 3843 (1687); 3864, 3865 (1688).

10 Ibid nos. 4037, 4038, 4039 (1690); 4087 (1692); 4177 (1695-1696); 4242 (16971698); 4272, 4276 (1699); 4301 (1701-1702).

11 Ibid nos. 4164 (1695); 4167-4169 (1695-1696); 4198 (1696); 4225 (1697). 12 Ibid nos. 3405 (1664); 3566 (1672); 4032 (1689-1690); 4058 (1690).

13 Ibid nos. 4060 (1690-1691); 4075 (1691); 4098 (1692); 4112 (1692-1693); 4144 (1694); 4181 (1695-1696); 4218 (1696-1697); 4284 (1700-1701); 4299 (1701-1702). 14 Ibid no. 3494 (1667). 15 Ibid no. 3402 (1664).

7

payment at a future date;1 and there was no special provision for sick or disabled sailors. The scandals denounced in the statute book, and graphically described by Pepys,2 were to a large extent removed after the Revolution.3 William III. founded Greenwich Hospital for disabled sailors; and both the executive and the legislature made regulations as to its administration.* The trade of fishing, which furnished valuable recruits for the navy, was encouraged; and, in 1660-1661 and the two following years, the Political Lent was ordered to be observed." The Navigation Acts were enforced by one proclamation, and, by another, provision was made for the erection of lighthouses on the North and South Forelands.8 Other proclamations provide for the digging of saltpeter, and prohibit its export.10 Another prohibits the export of cannon." A proclamation of James II. contains regulations for the behaviour of the soldiers,12 and a proclamation of William III, deals with false muster rolls by which officers drew pay for non-existent soldiers.13 The absence of any special provision for maimed soldiers at the beginning of Charles II.'s reign, is illustrated by a proclamation of 1660-1661, which ordered that their parishes should relieve soldiers, who came provided with recommendations signed by certain persons named therein; 14 and the foundation of Chelsea Hospital for their relief is alluded to in a proclamation of 1684-1685.15

We shall see that the encouragement of native industry and trade, internal and external, occasioned the most numerous of all the groups of statutes of this period. As we might expect, the proclamations upon this topic are equally numerous. One group

1 See 18, 19 Charles II. c. 1 §§ 1, 8; and Pepys, Diary (Wheatley's ed.) vii 350351 for his successful defence before Parliament of the payment of the men by ticket in 1667-1668.

2 Diary v 98; ibid at p. 107 he writes, "Did business, though not much, at the office; because of the horrible crowd and lamentable moan of the poor seamen that lie starving in the streets for lack of money"; ibid vi 220, "this day a poor seaman, almost starved for want of food, lay in our yard a-dying. I sent him half-a-crown, and we ordered his ticket to be paid."

39 William III. c. 41 § 6 dealt for the first time with the abuse arising from the giving by seamen of a power of attorney to receive their wages, and coupling it with a will making such attornies their executors.

4 Tudor and Stuart Proclamations i no. 4227 (1696-1697); 7, 8 William III. c. 21; 8, 9 William III. c. 23.

Tudor and Stuart Proclamations i nos. 3235 (1660); 3325 (1661).

Ibid nos. 3287 (1660-1661); 3330 (1661); 3376 (1662-1663); 3390 (1663-1664); for the Political Lent see vol. iv 300, 328.

7 Ibid no. 3363 (1662).

Ibid no. 3464 (1666).

11 Ibid no. 3730 (1681).

13 Ibid no. 4008 (1689).

8 Ibid no. 3360 (1662).

10 Ibid no. 3395 (1663-1664); 4019 (1689).

12 Ibid no. 3815 (1685).

14 Ibid no. 3272 (1660); in 1662 two statutes were passed to raise money for soldiers

who had fought for the king, 14 Charles II. cc. 8, 9; and provision was made for taking the accounts of its expenditure by 22, 23 Charles II. c. 21.

15 Ibid no. 3762 (1684-1685).

VOL. VI.-20