crimes, it appears that during the civil war "the gown had to yield to the sword, and the laws were comparatively silent in the midst of arms." Under Cromwell, military despotism overrode the common law. Rebellion among the people and the resistance of Parliament to his authority compelled such action, yet, on the whole, the country was wisely, if despotically, governed. The kingdom was divided into eleven districts, and over each was placed a colonel or major-general "bitterly hostile to the royalist party and insolent towards all civil authority." How many criminals (probably mostly political and religious) were punished by these military judges we have no means of knowing; but proceedings at common law were frequently interrupted,3 and for all men alike the times were "troublesome" and "distracted."4 Charles II returned to his throne amid the joyful acclamations of his people. The declaration from Breda gave a free and general pardon "to all his subjects" not specially excepted by Parliament;" but this boasted forgiveness amounted to very little in practice. Thirteen of the regicides were put to death. Sir Henry Vane was executed on a charge of high treason, in violation of the king's promise, and a straining of the law. Colonel Hutchinson died in prison, and many other officers of the old army were illegally incarcerated for years-Wildman, Creed and others. The law of high treason was made more strict during the king's lifetime, and the State Trials bear ample witness to the utter brutality and hateful partiality of the royal judges, Scroggs, North and Jones, during this reign. "Never," writes Hallam, Thurloe, iii, 701. 1 Hamilton, p. 127. 2 Thurloe, iii, 78, 265, 296–7, 359-60, 568. 'For instances of Cromwell's arbitrary government and violations of law, see case of Maynard, Twisden and Wyndham, sent to the Tower; Gerard and Vowel, executed in 1654; Slingsby and Hewet in 1658. State Trials, v, 518, 871, 883. 113 Car. II., c. 1, 1661. State Trials, v, 947. Ibid., vi, 120. 240 Religious Toleration 2 I "were our tribunals so disgraced." Yet the Court of Star Chamber and its branches, swept away in 1640, were not restored, and "the Ecclesiastical Courts were reduced to a dignified impotence." The practice of rebuking, fining and imprisoning jurors for returning verdicts against the direction of the court was given up and declared illegal. English common law was virtually completed, and since the Restoration the adapting of law to the growing needs of society has been mainly the work of Parliament and the Courts of Equity.3 The brief reign of James II is notable for his arbitrary reassumption of despotic power to accomplish his great desire, the restoration of the Roman Catholic religion. His intemperate zeal soon united the majority of Englishmen against him, and on the prosecution and acquittal of the bishops (June, 1688), the Anglican clergy finally renounced their doctrine of passive obedience to royalty, and strongly supported the popular movement before which James fled. With William and Mary England entered upon a great period of reform, both in the policy of government and in the social life of the people. The first step taken was the establishment of legal toleration for Protestant non-conformists. Although Papists were expressly excluded, there were almost no more persons punished for their religious beliefs and observances. Religious crimes practically disappeared and political offences rapidly decreased." A few new 1 Hallam, ii, 423. 2 Traill, iv, 362. For evidence of the early usefulness of these despotic courts, see the resentment shown by Yorkshire men over the suppression of the Council of the North, which had proved itself "a bridle on the stout nobles." Traill, iv, 222. 3 Traill, iv, 363. • State Trials, xi, 1315. Proceedings against the Univ, of Cambridge. 5 Ibid., xii, 183. 'State Trials, xii. 6 Stephen, ii, 492, and Hamilton, pp. 253 and 258. treason statutes were enacted, but these were in their nature essentially temporary, though necessary safeguards of the new social life. Thus, in 1698, by 9 Will. III., c. 1, it was made treason for the followers of James II. to return to England without special license; and in 1701, by 12 and 13 Will. III., c. 3, corresponding with "the pretended Prince of Wales" was declared treason. In Queen Anne's reign there were several similar acts.' But in the sweeping away of this great mass of political and religious offences, crimes did not cease. Criminal punishments were merely transferred from the field of religion and politics, to be used against conduct which had largely ceased to be criminal since the restoration of the house of Stuart." William and Mary strongly urged the enforcement of laws against swearing, immorality, drunkenness, and other lewd and disorderly practices which had universally spread themselves by neglect or connivance of the magistrates. But, on the whole, it was from the people, rather than from government, that the movement for social purification came. Voluntary associations of citizens took up the work. Five hundred disorderly houses were suppressed in London alone before 1699, and the movement showed extraordinary success elsewhere.3 Religious and political crimes, and the enforcement of penalties against them by courts of extraordinary jurisdiction, have filled most of this chapter; but there were other criminal tribunals, ordinary courts of common law, which though much weakened and tyrannized over by a centralized administration of justice, by military despots and dictatorial judges, yet continued to hold sessions and decree punish ments. These will now be considered, but unfortunately the 11 Anne, c. 17, 1702; 3 and 4 Anne, c. 14, 1705; 4 Anne, c. 8, 1705; 6 Anne, c. 7, 1709; 7 Anne, c. 4, 1709. Traill, iv, 593-4. 'See 4 Will. and Mary, c. 8. 242 Courts of Common Law records that have come down to us are very incomplete. The best evidence is furnished by the records of the Court of Quarter Sessions preserved at Exeter Castle, for the county of Devon, and the records of the neighboring county of Bucks. In the records of Quarter Sessions during the reign of James I. there is much evidence of the corruption and extortion practised by all ranks and degrees of officials. Charges were frequently "preferred and proved" against constables and rate-collectors, bailiffs, "clerks of the market," and other similar persons; and the justices even sent a letter to the Chief Justice, in 1604, requesting that one Collacott be made an example of for his notorious corrupt practices; but nothing is said as to the actual infliction of punishment on these offenders-a very significant silence. On the other hand, directions for more strictness in prosecuting recusants arrived from the council of the king, and convictions became very frequent. Men were committed to prison for baptizing a mare and a dog, and other petty offences and sins. The game laws also appear to have been quite strictly enforced." The penalty for drunkenness was five shillings, "at which it remained until our own times;" but this fine did not prevent, and was probably not much enforced, for intoxication was disgustingly customary, even at the royal court. Vagrants fairly swarmed in England during the first quarter of the 17th century. The justices neglected to enforce the laws for branding them, nor were the people willing to lay information against them. Evidently neither vagrancy nor drunkenness can be considered crimes in that age, for society refused to inflict punishment. Under Charles I. we find frequent sentences to the pillory for "cozening the people by telling fortunes."3 Witchcraft, charm and sorcery were punished by a year's imprisonment. Humphrey Moore, for 1 Hamilton, pp. 74-5. Ibid., pp. 89 and 111. Ibid., p. 113. "being a very lewd and dangerous fellow" and for "false accusation," was sent to the House of Correction. Those who attended "revels, maypoles and the like" were to be punished as "idle and lewd people." Most of the offences punished by Quarter Sessions during the reigns of the first two Stuart kings were very insignificant, showing how large a proportion of the serious crimes was drawn into the jurisdiction of higher courts. There were many complaints of outrages by soldiers quartered in the country, but no punishments could be inflicted. At the winter Assizes of 1630 there was an extraordinarily long calendar of prisoners, and seventeen of them were hanged, but this can be accounted for by the prevalent distress, caused by dearth and the high price of food. It is evidently not a customary number of criminals. During the civil war "the justices were out a colonelling," and legal business was almost at a standstill. Under the Commonwealth most of the cases tried at Quarter Sessions related to petty sins. There are "literally hundreds of such indictments of this period" for the single county of Devon. As the cavalier poet sang: "Those gospel-walking times, When slightest sins are greatest crimes." "6 on my troth;" Swearing was a crime very strictly punished. Every oath was counted. A single specimen was fined 6s. 8d., but the charge was reduced to 3s. 4d. for a quantity. Among the "oaths" thus fined were "upon my life;" saying "God's life" in conversation, and "God is my witness," in court.3 By a Devonshire order we learn that every woman who had ever borne an illegitimate child and remained unpunished, was to be committed for trial. The sentence was generally three months' imprisonment, but sometimes Ibid., p. 159. 1 Hamilton, p. 114. |