of the allegiance of his subjects or the relative on his part, as trust and power to defend his people; therefore Acts of Parliament to take away his royal power in the defence of his kingdom are void; they are void Acts of Parliament to bind the king not to command the subjects, their persons and goods, and I say, their money too, for no Acts of Parliament make any difference.'

1

"Seven of the twelve judges, namely, Finch, Chief Justice of the Common Pleas, Jones, Berkley, Vernon, Crawley, Trevor, and Weston, gave judgment for the Crown. Brampston, Chief Justice of the King's Bench, and Davenport, Chief Baron of the Exchequer, pronounced for Hampden, but on technical reasons, and adhering to the majority on the principal question. Denham, another judge of the same court, being extremely ill, gave a short written judgment in favor of Hampden; but Justices Croke and Hutton, men of considerable reputation and experience, displayed a most praiseworthy intrepidity in denying, without the smallest qualification, the alleged prerogative of the Crown and the lawfulness of the writ for ship-money." 2

1 64 The soil of the sea." said Finch in his opinion, "belongs to the king, who is lord and sole proprietor thereof. . . . The king holds this diadem of God only; all others hold their lands of him, and he of none but God.". ED.

2 All these proceedings about ship-money, judicial and other, were declared illegal by Act of Parliament (Stat. 16 Car. I. c. 14), in May, 1641. The Act ran as follows: "Whereas divers writs of late time issued under the great seal of England, commonly called ship-writs, for the charging of the ports, towns, cities, boroughs, and counties of this realm respectively, to provide and furnish certain ships for his Majesty's service : (2) And whereas upon the execution of the same writs and returns of certioraries thereupon made, and the sending the same by mittimus into the Court of Exchequer, process hath been thence made against sundry persons pretended to be charged by way of contribution, for the making up of certain sums assessed for the providing of the said ships, and in especial in Easter Term in the thirteenth year of the reign of our sovereign lord the king that now is, a writ of scire facias was awarded out of the Court of Exchequer, to the then sheriff of Buckinghamshire, against John Hampden, Esquire, to appear and show cause, why he should not be charged with a certain sum so assessed upon him: (3) upon whose appearance and demurrer to the proceedings therein, the barons of the Exchequer adjourned the same case into the Exchequer Chamber, where it was solemnly argued divers days, and at length it was there agreed by the greater part of all the justices of the Courts of King's Bench and Common Pleas, and of the barons of the Exchequer, there assembled, That the said John Hampden should be charged with the said sum so as aforesaid assessed on him; (4) the main grounds and reasons of the said justices and barons which so agree, being, that when the good and safety of the kingdom in general is concerned, and the whole kingdom in danger, the king might by writ under the great seal of England, command all the subjects of this his kingdom, at their charge, to provide and furnish such number of ships with men, victuals, and munition, and for such time as the king should think fit, for the defence and safeguard of the kingdom from such danger and peril, and that by law the king might compel the doing thereof, in case of refusal or refractoriness; (5) and that the king is the sole judge, both of the danger and when and how the same is to be prevented and avoided; (6) according to which grounds and reasons, all the justices of the said Courts of King's Bench and Common Pleas, and the said barons of the Exchequer, having been formerly consulted with by his Majesty's command, had set their hands to an extrajudicial opinion, expressed to the same purpose; which opinion, with their names thereunto, was also by his Majesty's command enrolled in the Courts of Chancery, King's Bench, Common Pleas and Exchequer, and likewise entered

THE Government of the Commonwealth of England, Scotland, and Ireland, and the Dominions thereto belonging, as it was publicly declared at Westminster, the 16th day of December, 1653, . . . at which time and place his Highness, Oliver Lord Protector of the said Commonwealth, took a solemn oath for observing the same. Published by his Highness the Lord Protector's Special Commandment. Printed in the year 1653.1

I. That the supreme legislative authority of the Commonwealth of England, Scotland, and Ireland, and the dominions thereto belonging, shall be and reside in one person, and the people assembled in Parliament; the style of which person shall be Lord Protector of the Commonwealth of England, Scotland, and Ireland.

among the remembrances of the Court of Star Chamber, and according to the said agreement of the said justices and barons, judgment was given by the barons of Exchequer, That the said John Hampden should be charged with the said sum so assessed on him; (7) and whereas some other actions and process depend, and have depended, in the said Court of Exchequer, and in some other courts against other persons, for the like kind of charge, grounded upon the said writs, commonly called ship-writs, all which writs and proceedings as aforesaid, were utterly against the law of the land;

"II. Be it therefore declared and enacted by the king's most excellent Majesty, and the lords and commons, in this present Parliament assembled, and by the authority of the same, That the said charge imposed upon the subject, for the providing and furnishing of ships, commonly called ship-money, and the said extrajudicial opinion of the said justices and barons, and the said writs, and every of them, and the said agreement or opinion of the greater part of the said justices and barons, and the said judgment given against the said Johu Hampden, were and are contrary to and against the laws and statutes of this realm, the right of property, the liberty of the subjects, former resolutions in Parliament, and the petition of right made in the third year of the reign of his Majesty that now is.

"III. And it is further declared and enacted by the authority aforesaid, That all and every the particulars prayed or desired in the said petition of right, shall from henceforth be put in execution accordingly, and shall be firmly and strictly holden and observed, as in the same petition they are prayed and expressed; (2) and that all and every the records and remembrances of all and every the judgment, enrolments, entry, and proceedings as aforesaid, and all and every the proceedings whatsoever, upon or by pretext or color of any of the said writs, commonly called ship-writs, and all and every the dependants on any of them, shall be deemed and adjudged to all intents, constructions, and purposes, to be utterly void and disannulled; and that all and every the said judgment, enrolments, entries, proceedings, and dependants of what kind soever, shall be vacated and cancelled in such manner and form as records use to be that are vacated."

On Jan. 30, 1648-49, came the execution of the king, and on the 17th of the next March the abolition of the office of king (2 Scobell, 7); on the 19th of the same March, the abolition of the House of Lords by "the Commons of England, assembled in Parliament " (2 Scobell, 8); and on the 19th of the next May (2 Scobell, 35) it was “declared and enacted by this present Parliament . . . that the people of England. are and shall be . . . a Commonwealth and Free State, and shall from henceforth be governed as such] . . . by the Supreme Authority of this Nation, the Representatives of the people in Parliament, and by such as they shall appoint and constitute as officers and ministers under them."

ED.

99.66

1 This document, known as "The Instrument of Government,' was drawn up by Cromwell's leading supporters and accepted by himself."— GARDINER'S Student's Hist. Eng. 568. See 6 Somers's Tracts (2d ed.), 284, Gardiner's Const. Doc. Purit. Rev. lvi. 314.

ED.

II. That the exercise of the chief magistracy and administration of the government over the said countries and dominions, and the people thereof, shall be in the Lord Protector, assisted with a council; the number whereof shall not exceed twenty-one, nor be less than thirteen.

III. That all writs, processes, commissions, patents, grants, and other things, which now run in the name and style of the keepers of the liberty of England by authority of Parliament, shall run in the name and style of the Lord Protector, from whom, for the future, shall be derived all magistracy and honors in these three nations; and shall have the power of pardons (except in case of murder and treason), and benefit of all forfeitures for the public use: And shall govern the said countries and dominions in all things by the advice of the council, and according to these presents and the laws.

IV. That the Lord Protector, the Parliament sitting, shall dispose and order the militia and forces both by sea and land, for the peace and good of the three nations, by consent of Parliament; and that the Lord Protector, with the advice and consent of the major part of the council, shall dispose and order the militia for the ends aforesaid, in the intervals of Parliament.

V. That the Lord Protector, by the advice aforesaid, shall direct, in all things, concerning the keeping and holding of a good correspondence with foreign kings, princes, and States; and also, with the consent of the major part of the council, have the power of war and peace.

VI. That the laws shall not be altered, suspended, abrogated, or repealed, nor any new law made, nor any tax, charge, or imposition laid upon the people, but by common consent in Parliament, save only as is expressed in the 30th article.

VII. That there shall be a Parliament summoned to meet at Westminster upon the third day of September, one thousand six hundred fifty-four; and that successively a Parliament shall be summoned once in every third year, to be accounted from the dissolution of the preceding Parliament.

VIII. That neither the Parliament to be next summoned, nor any successive Parliaments, shall, during the time of five months, to be accounted from the day of their first meeting, be adjourned, prorogued, or dissolved, without their own consent. .

XVII. That the persons who shall be elected to serve in Parliament, shall be such (and no other than such) as are persons of known integrity, fearing God, and of good conversation, and being of the age of one and twenty years.

XVIII. That all and every person and persons, seized or possessed to his use, of any estate, real or personal, to the value of two hundred pounds, and not within the aforesaid exceptions, shall be capable to elect members to serve in Parliament for counties. . . .

...

XXII. That the persons chosen and assembled in manner aforesaid, or any sixty of them, shall be, and be deemed the Parliament of England, Scotland, and Ireland, and the supreme legislative power to be

and reside in the Lord Protector and such Parliament, in manner herein expressed.

XXIII. That the Lord Protector, with the advice of the major part of the council, shall at any other time than is before expressed, when the necessities of the State shall require it, summon Parliaments in manner before expressed, which shall not be adjourned, prorogued, or dissolved, without their own consent, during the first three months of their sitting: And in case of future war with any foreign State, a Parliament shall be forthwith summoned for their advice concerning the same.

XXIV. That all bills agreed unto by the Parliament shall be presented to the Lord Protector for his consent; and in case he shall not give his consent thereto within twenty days after they shall be presented to him, or give satisfaction to the Parliament, within the time limited, that then, upon declaration of the Parliament, that the Lord Protector hath not consented, nor given satisfaction, such bills shall pass into, and become laws, although he shall not give his consent thereunto; provided such bills contain nothing in them contrary to the matters contained in these presents.

XXX. That the raising of money for defraying the charge of present extraordinary forces, both at land and sea, in respect of the present wars, shall be by consent in Parliament, and not otherwise, save only that the Lord Protector, with the consent of the major part of the council. for preventing the disorders and dangers which may otherwise fall out both at sea and land, shall have power, until the meeting of the first Parliament, to raise money for the purposes aforesaid, and also to make laws and ordinances for the peace and welfare of these nations, where it shall be necessary, which shall be binding and in force, until order shall be taken in Parliament concerning the same. . . .

...

XXXII. That the office of the Lord Protector, over these nations, shall be elective, and not hereditary; and upon the death of the Lord Protector, another fit person shall be forthwith elected to succeed him in the government, which election shall be by the council; who, immediately upon the death of the Lord Protector, shall assemble in the chamber where they usually sit in council; and having given notice to all their number of the cause of their assembling, shall, being thirteen at least present, proceed to the election, and before they depart out of the said chamber, shall elect a fit person to succeed in the government, and forthwith cause proclamation thereof to be made in all the three nations as shall be requisite: And the person that they or the major part of them shall elect, as aforesaid, shall be, and shall be taken to be Lord Protector over these nations of England, Scotland, and Irelaud, and the dominions thereto belonging; provided that none of the children of the king, nor any of his line, or family, be elected to be Lord Protector, or other chief magistrate over these nations, or any of the dominions thereto belonging: And until the aforesaid election be past, the council shall take care of the government, and administer in all

things as fully as the Lord Protector, or the Lord Protector and council are enabled to do.

XXXIII. That Oliver Cromwell, Captain-General of the forces of England, Scotland, and Ireland, shall be, and is hereby declared to be Lord Protector of the Commonwealth of England, Scotland, and Ireland, and the dominions thereto belonging for his life.

XXXIV. That the Chancellor, Keeper, or Commissioners of the Great Seal, the Treasurer, Admiral, Chief Governors of Ireland and Scotland, and the Chief Justices of both the benches, shall be chosen by the approbation of Parliament, and in the intervals of Parliament, by the approbation of the major part of the council, to be afterward approved by the Parliament...

XXXVII. That such as profess faith in God by Jesus Christ (though differing in judgment from the doctrine, worship, or discipline, publicly held forth) shall not be restrained from, but shall be protected in the profession of the faith, and exercise of their religion, so as they abuse not this liberty, to the civil injury of others, and to the actual disturbance of the public peace on their parts; provided this liberty be not extended to Popery or prelacy, nor to such as, under the profession of Christ, hold forth and practise licentiousness.

XXXVIII. That all laws, statutes, ordinances, and clauses in any law, statute, and ordinance to the contrary of the aforesaid liberty, shall be esteemed as null and void. . . .

XLI. That every successive Lord Protector over these nations shall take and subscribe a solemn oath, in the presence of the council, and such others as they shall call to them, That he will seek the peace, quiet, and welfare of these nations, cause law and justice to be equally administered, and that he will not violate or infringe the matters and things contained in this writing; and in all other things will, to his power, and to the best of his understanding, govern these nations, according to the laws, statutes, and customs.

XLII. That each person of the council shall, before they enter upon their trust, take and subscribe an oath, That they will be true and faithful in their trust, according to the best of their knowledge; and that, in the election of every successive Lord Protector, they shall proceed therein impartially, and do nothing therein for any promise, fear, favor, or reward.1

WHERE there is, then, a righteous and good constitution of government, there is first an orderly union of many understandings together, as the public and common supreme judicature or visible sovereignty, set

1 See the Constitutional Bill of the First Parliament of the Protectorate (1654), Gardiner's Doc. Purit. Rev. Ix. 353. The adoption of this was prevented by a dissolution. The Second Parliament, in 1657, presented amendments to the existing instrument under the name of "The Humble Petition and Advice" (2 Scobell, 378), including the establishment of a second chamber. Most of these were accepted by the Protector. Meantime interesting speculations were put forward by Vane and Harrington.-ED.