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commune which prevailed in some parts of Europe-for the king was the chief landowner in the country, and when he parted with his right over a forest it devolved, not on a body of the people, but on a nobleman only less. powerful than himself; and it demolishes altogether the idea which yet sometimes is evident in political discussion on modern land tenure-a theory so completely at variance with historical truth-of the inherent right of every individual to a portion of the land of the kingdom. In a word, from the time of the Conqueror to the nineteenth century, the royal forests have been the cause of a conflict between two opposing systems of land tenure. The right of the individual and the corporate right of the community to the forests have been in constant. antagonism, the right of the individual prevailing everywhere; for in the places where others than the king and his grantees have obtained rights in the forest by virtue of custom, it has been as individuals, and not as members. of a community which was capable of enjoying rights of property. The only way in which the village or the township was recognised by the forest laws as having a corporate existence was in the unpleasant form of a liability of a township for offences committed by individual inhabitants against the forestal law. Nor have the effects of the forest laws yet disappeared from the social life of England. For the game laws, by which the killing of certain birds and animals is a criminal offence, apart altogether from the offence of trespass on land, are the offspring of the medieval laws of the forest, and they have continued to estrange classes in the rural districts, and have ruined the life of many a peasant.

CHAPTER III.

THE LAW REFORMS OF THE COMMONWEALTH.

AMONG the remarkable features of the epoch of the Commonwealth not one is more deserving of attention than the important place which law reform suddenly occupied in the midst of great political and social events. By the constitutional changes which had previously occurred, the municipal law was not affected. Yorkists succeeded Lancastrians, and Tudors followed Yorkists; the Reformation transformed the national religion, but the fabric of English law remained unaltered. The period, however, of the Rebellion and the Commonwealth is in striking contrast in this respect to the larger portion of English history, and from 1648 to the Restoration of Charles II. in 1660 is a strange epoch in the tranquil legal annals of this country. Several important changes and improvements actually occurred, and a far larger number were proposed but never completed. An eagerness for this kind of reform was visible, and a vague activity in the Legislature to fulfil the national wish, stimulated as it was by the strong will of Cromwell. The lay element in the nation was determined, if possible, to improve the law of England whether lawyers liked it or not; and the foremost man of the time not only heartily sympathized with the national desire, felt as it was by all classes of the community from In

dependent colonels to Tory Devonshire squires, but, in the maturity of his opinions and from the thought which he had given to the subject, was prepared at once to lead and to guide the more headstrong and less thoughtful multitude. So that law reform, far from being the object of a few specialists or a knot of advanced thinkers, became a political object of unusual popularity and of constant importance.

No doubt, this wish for a more equitable system of law and procedure arose partly from the existing defects of English law, especially in regard to matters of procedure. Thus, in his speech at the opening of the Second Protectorate Parliament, on September 17, 1656, Cromwell said: "There are some things which respect the Estates of men; and there is one general Grievance of the Nation. It is the Law. Not that the laws are a grievance, but there are laws that are, and the great grievance lies in the execution and administration” (a).

In other words the feeling for legality so strong in the English race was offended by technicalities in the administration of justice. It was a time when a spirit of unrest and a determination to improve the religious and political state were in the air, and it was impossible that the law could escape reform in the general overhaul. But the way in which it was to be accomplished was characteristic of the English people. They had no theoretical or visionary reforms in view, but whilst preserving the existing system, they wished to rid it of abuses.

Oliver Cromwell's Letters and Speeches. London: 1871. Vol. IV. p. 209.

It ceases, therefore, to be a matter of wonder that this particular epoch stands alone, remarkable for unusual activity and progress in the matter of law reform. It is equally noteworthy, however, that, in spite of this favourable current of circumstances, but few reforms were actually carried out, compared with the number of projects which were discussed. This arose from two causes. The first was certainly the inherent difficulty of the question; for no subject is less capable of hasty alterations than the law, and there is not one which opens out more vistas of difficulties and doubts, as progress is made, than a reform of even a single branch of the law. Secondly, it was caused by the conservatism of the lawyers, who, not being in sympathy with change, could act as a most effectual drag upon the progress of law reform. So that while one may sympathize with Cromwell's lament over the slowness with which law reform proceeded, it is scarcely possible to lay this delay to the doors of the Long Parliament as he did, probably for political reasons, in a memorable speech at the opening of the Convention or Little Parliament on the 4th of July, 1653. "I will not,” he exclaims, "say that they (the members of the Long Parliament) were come to an utter inability of working reformation, though I might say so in regard to one thing: the reformation of the law so much groaned under in the posture it is now in. That was a thing we had many good words spoken for; but we know that many months were not enough for the settling of one word 'Incumbrance'" (b). And even those much-needed changes which these years of turmoil witnessed were

(b) Cromwell's Letters and Speeches, Vol. III. p. 211.

blotted out at the Restoration, the actual results were lost, the labours of vigorous law reformers were thrown away, and the English nation had to wait for another century before the ideas of the parliamentary reformers at length improved and popularized the body of English law. But even as this period stands, barren of permanent results, it is deserving of some study in detail, if only for the exceptional place it takes when compared with other parts of our legal annals.

The distinctive character of the law reforms of this part of the seventeenth century was that they consisted almost wholly of attempts to improve procedure, and not to change the body of the law. As we have already seen, Cromwell distinctly stated to the Parliament of 1656 that it was not the laws which were a grievance, but their execution and administration. Some of the more thoroughgoing of the reformers, it is true, advocated very wholesale measures-such as the abolition of the Court of Chancery (c); but the English people never desired anything so revolutionary, and would have been satisfied if legal redress could be easily and cheaply available. It was such practical objects as that for which the grand jury of Devon petitioned (d)-that all legal proceedings should be in English and not in Norman-French or cramped Latin-which were the aim of the people, not drastic changes in the jurisprudence of the country. The people understood clearly enough that procedure might be either an assistance or a stumbling-block to suitors;

p. 29.

(c) Whitelock's Memorials of English Affairs. Ed. 1853. Vol. IV. (d) Ibid. Vol. III.

p.

249.

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