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In virtue of their legislative capacity Cromwell and his Council passed more than eighty ordinances in the eight months between the establishment of the Protectorate and the meeting of the parliament. This is commonly called Cromwell's great creative period, yet in truth the list is but a meagre show of legislative fertility. Many of them were no more than directions for administration. Some were regulations of public police. One of them limited the number of hackney coaches in London to two hundred. Duels and challenges were prohibited, and to kill an adversary in a duel was made a capital offence. Drunkenness and swearing were punished. Cock-fighting was suppressed, and so for a period was horse-racing. There were laws for raising money upon the church lands, and laws for fixing excise. Among the earliest and most significant was the repeal of the memorable enactment of the first days of the republic, that required an engagement of allegiance to the Commonwealth. This relaxation of the republican test was taken by the more ardent spirits as stamping the final overthrow of the system consecrated to freedom, and it still further embittered the enmity of those who through so many vicissitudes had in more hopeful days been Cromwell's closest allies. More farreaching and fundamental were the edicts incorporating Scotland and Ireland in one Commonwealth with England, but these were in conformity with the bill of the Long Parliament in 1652. From the Long Parliament also descended the policy of the edict for the settlement of lands in Ireland. One of the cardinal subjects of the ordinances in this short period of reforming and organising activity was the Court of Chancery. The sixty-seven clauses reforming chancery are elaborate, but they show no presiding mind. Imperious provisions, that OLIVER AS LEGISLATOR 335
every cause must be determined on the day on which it is set down for hearing, savour more of the sergeant and his guard-room than of a law 'court threading its way through mazes of disputed fact, conflicting testimony, old precedents, new circumstances, elastic principles, and ambiguous application. Lenthall, now Master of the Rolls, vowed that he would be hanged up at the gate of his own court rather than administer the ordinance. In revolutionary times men are apt to change their minds, and he thought better of it. Others were more constant. It is impossible to read Whitelocke's criticisms without perceiving that he and his brother commissioner of the great seal had good grounds for their refusal to execute the ordinance. The judgment of modern legal critics not unfriendly to Oliver, is that his attempt at chancery reform shows more zeal than discretion; that it substituted hard-and-fast rules for the flexible system that was indispensable in equity; that it was spoiled by lack of moderation. To his honour, he abhorred the harshness of the criminal law, and would fain have mitigated it, but his efforts came to nothing. Equally ineffectual were his aspirations to reform morals and manners by law. The old Adam in Englishmen was too much for him, and he might have remembered here especially his own maxim that all depends on acceptance by the people.
Cromwell possessed far too much of that instinct for order and government, which is very narrowly described when it is called conservative, not to do his best to secure just administration of the law. Some of the most capable lawyers of the age were persuaded to serve in the office of judge, and there is no doubt that they discharged with uprightness, good sense, and efficiency both their strictly judicial duties and the important functions in respect of general county business which in those days fell upon
the judges of assize. Slackness in this vital department would speedily have dissolved social order in a far deeper sense than any political step, even the execution of a king or the breaking of a parliament. But whenever what he chose to regard as reason of state affected him, Cromwell was just as ready to interfere with established tribunals and to set up tribunals specially to his purpose, as if he had been a Stuart or a Bourbon.
One of the strong impulses of the age was educational. Cromwell was keenly alive to it, and both in the universities and elsewhere he strove to further it. Nothing survived the Restoration. Most important of all Cromwell's attempts at construction was the scheme for the propagation of religion, and it deserves attention. The dire controversy that split up the patriot party in the first years of the Long Parliament, that wrecked the throne, that was at the bottom of the quarrels with the Scots, that inspired the fatal feud between presbyterian and independent, that occupied the last days of the Rump, and brought to naught the reign of the saints, was still the question that went deepest in social life. The forefathers of the Commonwealth had sought a state church with compulsory uniformity. The fervid soul of Milton, on the contrary, was eager for complete dissociation of church from state, eager " to save free conscience from the paw Of hireling wolves whose gospel is their maw." So were the most advanced men in the parliament of Barebones. But voluntaryism and toleration in this uncompromising temper was assuredly not universal even among independents. Cromwell had never committed himself to it. In adhesion to the general doctrine of liberty of conscience, he had never wavered. Perhaps it was the noblest element in his whole mental equipment. He valued dogmatic nicety as little in religion as he valued constitutional precision in politics. His was the cast OLIVER AS LEGISLATOR 337
of mind to which the spirit of system is in every aspect wholly alien. The presence of God in the hearts of men; the growth of the perfect man within us; the inward transformation not by literal or speculative knowledge, but by participation in the divine, in things of the mind; no compulsion but that of light and reason,—such was ever his faith. I am not a man, he said, scrupulous about words or names or such things.
This was the very temper for a comprehensive settlement, if only the nation had been ripe for comprehension. Cromwell had served on two important parliamentary committees on propagation of the gospel after his return from Worcester. There on one occasion it pleased somebody on the committee zealously to argue against a Laodicean indifferency, professing that he would rather be a Saul than a Gallio. Then Cromwell made the vehement declaration that he would rather have Mahometanism permitted, than that one of God's children should be persecuted. But the question of Toleration was one, and that of a state-paid ministry was another. Toleration with the two stereotyped exclusions of popery and prelacy, as we have seen, was definitely adopted, so far as words went, in two sections of the Instrument of Government, and so too was the principle of a public profession of religion to be maintained from public funds. An episcopal critic was angry at the amazing fact that in the Magna Charta of the new constitution there was not a word of churches or ministers, nor anything else but the Christian religion in general—as if the Christian religion in general were but something meagre and diminutive. The usual and inevitable controversy soon sprang into bitter life, as to what were the fundamentals covered by this bland and benignant phrase, and the divines had not effectually settled their controversy when they were overtaken by the Restoration.
What Cromwell's ordinance of 1654 did was, upon the principle of the Instrument, to frame a working system. In substance he adopted the scheme that Dr. John Owen, now Dean of Christ Church, had submitted to the parliament in 1652, and that was in principle accepted by the Rump in its closing days. A story is told by Bishop Wilkins, who was the husband of Cromwell's youngest sister Robina, that the Protector often said to him that no temporal government could have a sure support without a national church that adhered to it, and that he thought England was capable of no constitution but episcopacy. The second imputation must be apocryphal, but Cromwell had undoubtedly by this time firmly embraced the maxim alike of King Charles and of the Long Parliament, that the care of religion is the business of the state. His ordinances institute a double scheme for expelling bad ministers, and testing the admission of better. No man was henceforth to be capable of receiving a stipend who failed to satisfy of his character, conversation, and general fitness a commission of divines and laymen, some forty in number, divines being to laymen as three to one. By the side of this commission of Triers was a smaller commission of Ejectors, for the converse task of removing ignorant, negligent, or scandalous persons. The tithe was maintained and patronage was maintained, only security was taken for the fitness of the presentee. No theological tests were prescribed. No particular church organisation was imposed, though episcopacy, like the Prayer Book, was forbidden. Of the three sorts of godly men, said Oliver, presbyterians, baptists, and independents, so long as a man has the root of the matter in him, it does not concern his admission to a living, to whatever of the three judgments he may belong. The parishes were to adopt the presbyterian or the congregational form as they liked best. In