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ing them of their seats in the House of Lords:' but I can not consider this a permanent improvement in the constitution; for hereditary honors and wealth are so enervating, that the Upper House could scarcely maintain its position without the infusion of fresh blood from the church as well as the law; and by reason of the talents and character of the right reverend bench, its proceedings are more effective and more respected. I therefore rejoice that this act was condemned at the Restoration, and I trust that there never will be occasion for repealing the act by which it was repealed.

The Courts of common law were filled with able Judges in this reign, but their decisions are badly reported by Crooke, and others still more loose and indiscriminating; and till Saunders arose there was no legitimate successor of Plowden and Coke.

Equity as a system made little progress. Coventry was contented to dispose of each case that came before him according to his notions of what was right, without laying down any broad general principles; and Finch, Littleton, and Lane were too much occupied with political broils to think of judicial improvement.'

CHAPTER LXVIII.

LORD KEEPERS OF THE PARLIAMENTARY GREAT SEAL DURING THE COMMONWEALTH, TILL THE FIRST APPOINTMENT OF LORD COMMISSIONER WHITELOCK.

WH

HEN Lord Keeper Littleton fled to York in May, 1642, the parliamentary leaders were thrown into perplexity. Knowing the importance of the Great Seal, they had cultivated him very assiduously, and, from his vote upon the militia ordinance, they believed he had so completely committed himself against the Court that he must remain entirely under their control. After that occurrence, the precaution they had contemplated of ordering the Great Seal to be kept in some secure place, appeared unnecessary. They were thus

1 16 Car. I, c. 27.

See Tothill; Nelson's Chancery; Reports in Chancery, vol. i.; Godbolt's Reports; Popham's Reports.

III.-20

quite unprepared for the misfortune of this machine of government being transferred from them to the King.

While he now had the advantage of duly issuing whatever grants, commissions, or proclamations he might think proper, they foresaw that the administration of justice would be materially impeded in the metropolis,-that they could not even have new elections to fill up vacancies in the House of Commons,-and that they could not do any act of state to which the Great Seal was necessary. Having assumed the exercise of supreme power, their policy was to carry on the government in the King's name, according to the forms of the constitution.

Encouraged by Littleton's submissive petition to the House of Lords, they thought it possible that he might be playing a double part; and, by way of experiment, they sent some "proclamation writs' to Nottingham, where he then was with the King,-about the time when the royal standard was first raised there, and he was required to seal them according to the duty of his office.

Littleton, still dreading an open rupture with the parliament, as an equivocating excuse wrote the following letter to the Clerk of the Crown in Chancery:-" Sir, I could not seal the proclamation writs you sent unto me from the Lords, for that I never could have the Seal sithence the receipt of them until this hour."

After several conferences between the two Houses, who wished to throw all the odium upon the King, it was resolved to set forth "a declaration showing to the people the grievous obstruction of justice by the taking and detaining the Great Seal out of the custody of the Lord Keeper." Committees were likewise appointed to consider "how these and the like inconveniences may be remedied and prevented for the future;" and that of the Commons was particularly to report upon a method "how the House may be replenished of their members notwithstanding writs for a new election instead of those cast out of the House cannot be sealed as is usual."'

The declaration accordingly came out, heavily complaining of the infraction of the clause in Magna Charta "Nulli negabimus, nulli deferemus justitiam vel rectum;" but a long time elapsed before any measure to 1 Lords' Journ. v. 343. Com. Journ. ii. 771.

meet the evil could be agreed upon. It was vain to expect that proceedings which had immemorially been under the Great Seal could take place without its authority, and many lawyers were startled by the express enactment in the statute 25 Edw. III., that "to counterfeit the King's Great Seal shall be High Treason "—an enactment which might have been very inconveniently put in force against all those who voted for a new Great Seal, should the royal party prevail. They therefore contented themselves for the present with passing an ordinance to make void all patents and grants under the King's Great Seal since the time it ceased to attend the parliament, and forbidding obedience to any proclamation for removing the Courts of Justice from Westminster.'

The inconvenience, however, was more and more severely felt, particularly by the professors of the law. Says Whitelock, "The courts of justice were not yet open, and there was no practice for lawyers." About this time, there came out a pamphlet, which caused a considerable sensation, entitled "St. Hilary's Tears shed upon all Professors of the Law, from the Judge to the Pettifogger, for want of a stirring Term, written by one of his Secretaries that had nothing else to do."'

2.

At last, in May, 1643, Oliver St. John, as yet styled "Solicitor General," and Sergeant Wilde, the two boldest lawyers on the popular side, resolved upon a strenuous effort to have a new Great Seal, and they induced the Commons, without a division, to agree to the following resolutions:-I. "That the Great Seal of England ought, by the laws of the land, to attend the parliament." "That the Great Seal of England doth not attend the parliament as it ought to do." 3. "That by reason thereof, the commonwealth hath suffered many mischiefs, tending to the destruction of the King, parliament, and kingdom.' 4. "That it is the duty of both houses to provide a speedy remedy for these mischiefs." Then came the 5th and 1 Jan. 21, 1643.

"Whit. Mem. 71.

3 Thus it began: "A term so like a vacation; the prime Court, the Chancery (wherein the clerks had wont to dash their clients out of countenance with long dashes); the examiners to take the depositions in hyperboles, and roundabout Robinhood circumstances with saids and aforesaids, to enlarge the number of sheets ;"-alluding to the abuse which it has never yet been found possible to correct, of allowing costs according to the number of written words, by so much a folio.

startling resolution, "THAT A GREAT SEAL OF ENGLAND SHALL BE FORTHWITH MADE TO ATTEND THE PARLIAMENT, FOR THE DISPATCH OF THE AFFAIRS OF THE PARLIAMENT AND THE KINGDOM.”

But a strong opposition sprung up to this proceeding, -the more cautious members suggesting that it would be a direct renunciation of all allegiance to the Crown,that the two Houses still acknowledged Charles for their sovereign, and were in treaty with him for a peaceable settlement of all differences, notwithstanding his misgovernment by advice of evil counselors, and that the making of a new Great Seal would be a direct infraction of the law, for which they might hereafter be made criminally responsible. On the other hand, the more determined urged that it was unworthy to start technical difficulties as to the mode of exercising the authority of the parliament in the manner most effectual and most beneficial to the public, that a new Great Seal, which would so much facilitate the transaction of public business, would not be a greater departure from law than issuing orders in the King's name against his person,-and that it was much too I late to talk prudishly of a regard to law, after they had fought the King at Edgehill, and he had declared by proclamation, not only that all who had appeared against him in arms, but all who had contributed money, or stores, or provisions for the use of those whom he designated Rebels, were guilty of high treason. After a long debate, the last resolution was carried only by a majority of 12,-the yeas being 86, and the noes 74.'

The Lords, whose deliberations were chiefly guided by the Earl of Manchester (formerly Lord Kimbolton), now presiding on the woolsack as Speaker, the Earl of Northumberland, and the Earl of Essex when he could be spared from the army,-were by no means as yet prepared to go the full length of these resolutions. On the Ist, they voted "that the Great Seal ought to be applied to the commands of the parliament according to the laws of the land, but that it ought not, according to the laws of the land, to attend the commands of the parliament."

1 With the tellers, making a house of 164, I believe there was seldom afterwards a more numerous attendance, even before Pride's Purge, or the violent exclusion of members-a considerable number having joined the King, many of the parliamentary party being with the army, and there being long no means of filling up vacancies.

The 5th resolution, for making forthwith a new Great Seal, they met with a direct negative.

Several conferences upon the subject were held between the two Houses to no purpose. At the last of these, the Commons submitted the following reasons for the measures they recommended, divided into two general heads:"I. Mischiefs occasioned by conveying away the Great Seal from the Parliament.

"I. It was secretly and unlawfully carried away by the Lord Keeper, contrary to the duty of his place; who ought himself to have attended the parliament, and not to have departed without leave; nor should have been suffered to carry away the Great Seal if his intentions had been discovered.

"2. It hath been taken away from him and put into the hands of other dangerous and ill-affected persons; so as the Lord Keeper, being sent unto by parliament for the sealing of some writs, returned answer, that he could not seal the same because he had not the Seal in his keeping.

"3. Those who have had the managing thereof have employed it to the hurt and destruction of the kingdom sundry ways: by making new Sheriffs in an unusual and unlawful manner, to be as so many generals or commanders of forces raised against the parliament; by issuing out unlawful commissions of array, with other unlawful commissions for the same purpose; by sending forth proclamations against both Houses of parliament, and several members thereof; proclaiming them traitors against the privileges of parliament and laws of the land; by sealing commissions of oyer and terminer to proceed against them and other of his Majesty's good subjects, adhering to the parliament, as traitors; by sending commissions into Ireland to treat a peace with the rebels there, contrary to an act of parliament made this session; besides, divers other dangerous and illegal acts have been passed under the Great Seal since it was secretly conveyed away from parliament, whereby great calamities and mischiefs have ensued to the kingdom's prejudice. "II. Mischiefs proceeding through want of the Great Seal.

"1. The terms have been adjourned; the courts of justice obstructed.

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