Hostname: page-component-78c5997874-ndw9j Total loading time: 0 Render date: 2024-11-10T14:10:56.210Z Has data issue: false hasContentIssue false
  • English
  • Français

Bulstrode Whitelocke and Early Interregnum Chancery Reform*

Published online by Cambridge University Press:  11 July 2014

Allan J. Busch Jr.
Get access

Extract

Reform of the law and the courts, especially the Court of Chancery, has been one of the most active areas of interest among historians concerned with the Interregnum period of English history. However, the authors on law reform have relied primarily upon the plethora of pamphlet literature and other printed materials which have led them to conclude that the legal profession obstructed reform of the law to protect its vested interests in offices and fees. Bulstrode Whitelocke, one of the lords commissioners of the great seal (the Chancery judges of the Interregnum) from 1649 to 1655, has long served historians as an example of the legal profession's refusal to assist or to cooperate in any meaningful reformation of the law or equity. Recently, Donald Veall, David Underdown, and Blair Worden have again laid the failure of reform at the door of the lawyers and judges who sat in the Rump, on commissions of law reform, and in the Protectorate parliaments. They have also assigned to Whitelocke a major responsibility for the defeat of law reform in the Rump, both before and after the Hale Commission's comprehensive plan of reform in January 1653, and in the first Protectorate Parliament in 1654. They believe, despite Whitelock's fervor for professional standards and his mild reforming tendencies, that he represented the major hurdle for any successful reform in law or equity.

Type
Research Article
Information
Albion , Volume 11 , Issue 4 , Winter 1979 , pp. 317 - 330
Copyright
Copyright © North American Conference on British Studies 1979

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

The research for this paper was completed under a grant by the American Bar Foundation's Project in Legal History, 1971-72.

References

1 Prall, Stuart, The Agitation for Law Reform in the Puritan Revolution, 1640-1660 (The Hague, 1966)CrossRefGoogle Scholar; Veall, Donald, The Popular Movement for Law Reform, 1640-1660 (London, 1970)Google Scholar; James, Margaret, Social Problems and Policy During the Puritan Revolution, 1640-1660 (London, 1966), pp. 326–38Google Scholar; Prall, , “Chancery Reform and the Puritan Revolution,” American Journal of Legal History, 6(1962): 28–44CrossRefGoogle Scholar; Shapiro, Barbara, “Law Reform in Seventeenth Century England,” AJLH, 19 (1975): 280–312CrossRefGoogle Scholar; See also SirHoldsworth, William, A History of English Law, 16 vols. (London, 1922–1966), 1: 434 and 6: 422-23Google Scholar; Robinson, R., “Anticipations under the Commonwealth of Changes in the Law,” Select Essays in Anglo-American Legal History, 3 vols. (Boston, 1907), 1: 467–91Google Scholar; Smith, Goldwin, “The Reform of the Laws of England,” University of Toronto Quarterly, 10 (1971): 1-38 and 469–81CrossRefGoogle Scholar; Nourse, G.B., “Law Reform under the Commonwealth and Protectorate,” Law Quarterly Review, 75(1959): 512–29.Google Scholar

2 Veall, , Law Reform, pp. 122-23 and 178–83Google Scholar; Underdown, David, Pride's Purge, Politics in the Puritan Revolution (Oxford, 1971), pp. 275–80Google Scholar; Worden, Blair, The Rump Parliament, 1648-1653 (New York, 1974), pp. 273 and 279Google Scholar. Worden's argument is basically a critique of the thesis in Niehaus, C. R., “The Issue of Law Reform in the Puritan Revolution,” (Ph.D. dissertation, Harvard University, 1957)Google Scholar, which attempts to rehabilitate the lawyers' role in law reform. Prall has suggested Whitelocke's support of Chancery reform, but does not offer evidence in support of his suggestion (Law Reform, pp. 105-106). Nourse has also questioned the argument for the legal profession's responsibility in the failure of law reform (“Law Reform,” pp. 512-29).

3 Whitelocke, Bulstrode, Memorials of English Affairs, 4 vols. (Oxford, 1853)Google Scholar. Historians have followed Whitelocke closely since the eighteenth century, e.g., Oldmixon, John, The Lives of All the Lord Chancellors, Lord Keepers, and Lords Commissioners, of the Great Seal of England…, 2 vols. (London, 1708)Google Scholar; Campbell, John Lord, The Lives of the Lord Chancellors and Keepers of the Great Seal of England, First Series, 3 vols. (2nd ed.; London, 1845–1847)Google Scholar. See also notes 1 and 2.

4 Norburie, George, “The Abuses and Remedies of Chancery,” in Hargrave, Francis, ed., Collectanea Juridica, 2 vols. (London, 1791–1792), 1:430–47Google Scholar; Prall, , “Chancery Reform,” p. 326.Google Scholar

5 British Library, Add. MSS. 37344, Whitelocke Papers, f. 151v; Commons Journal, 6: 490-92 and 500Google Scholar; Calendar of State Papers, Domestic (1650), p. 18Google Scholar and (1651), p. 67 (hereafter cited as CSPD).

6 CSPD (1649-50), p. 199; Whitelocke, Bulstrode, Keble, Richard and Lenthall, William, Orders of the Commissioners of the Great Seal (London, 1649).Google Scholar

7 Whitelocke, , et. al., Orders (1649), pp. 7-14 and 57–8Google Scholar; Kerly, D.M., An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (Cambridge, 1890).Google Scholar

8 Whitelocke, , et. al., Orders (1649), p. 2Google Scholar. Proposals Concerning the Chancery (London, 1650).Google Scholar

9 See above, note 2.

10 Commons Journal, 7: 58 and 73–74.Google Scholar

11 Cotterell, Mary, “Interregnum Law Reform: the Hale Commission of 1652,” English Historical Review, 83(1968): 689–704.CrossRefGoogle Scholar

12 Commons Journal, 7: 58 and 107Google Scholar; Sir John Danvers to Whitelocke, December 26, 1651, Whitelocke Papers, Marquis of Bath Collection, Longleat, XI, 159-60; BL, Add. MSS. 35863, Minute Book of the Parliamentary Commission for Law Reform. The drafts of the bills presented by the Hale Commission and the parliamentary Committee for Regulating the Law are found in, “Several Draughts of Acts heretofore prepared by Persons appointed to consider of the Inconvenience, Delay, Charge, and Irregularity in the Proceedings of the Law …,” State Tracts of John, Baron Somers, 13 vols. (2nd ed.; London, 1809–1815), 6: 177–245Google Scholar. See also Cotterell, , “Interregnum Law Reform,” pp. 690–703.Google Scholar

13 BL, Add. MSS. 35863, Minute Book, ff. 11v and 44r; Commons Journal, 7: 110Google Scholar; Whitelocke, , Memorials, 3: 388, 390 and 393.Google Scholar

14 “The Draught of an Act for County Registers, Wills and Administrations; and for preventing Inconvenience, Delay, Charge, and Irregularity, in Chancery and Common Law (as well in Common Pleas as criminal and capital Causes), and for settling County Judicatures, Guardians of Orphans, Courts of Appeal, County Treasurers, and Work-houses, with Tables of Fees and short Forms of Declarations,” Somers Tracts, 6: 191Google Scholar. No author is given in the Somers Tracts for this bill, but authorship has been given in a published tract of 1666; Whitelocke, , Lisle, , Lane, , Prideaux, , Cooper, and Fountaine, , Two Tracts on the Benefit of Registering Deeds in England (London, 1666)Google Scholar. BL, Add. MSS. 35863, Minute Book, ff. 6r, 8r, 8v, 52r and 53v; Commons Journal, 7: 73–4Google Scholar; Historical Manuscripts Commission, 7th Report, p. 58; University of Kansas Libraries, Department of Special Collections, MS. D87, John Lisle's Abridgements of Chancery Causes, ff. 90r, 103r, 201r, 228r and 297r; Busch, A. J., “A New Source for the Study of the Court of Chancery,” University of Kansas Library Series, No. 32, Bibliographical Contributions (1969)Google Scholar; Veall, , Law Reform, pp. 176 and 188.Google Scholar

15 Firth, C. H., ed., The Memoirs of Edmund Ludlow, 2 vols. (London, 1894), 1: 33–34.Google Scholar

16 Commons Journal, 7: 249–77Google Scholar; Whitelocke, , Memorials, 3: 468Google Scholar. Gardiner, S. R., History of the Commonwealth and Protectorate, 1649-1660, 3 vols. (London, 1894), 2: 82Google Scholar; and Nourse, , “Law Reform,” p. 518.Google Scholar

17 Commons Journal, 7: 253.Google Scholar

18 Ibid., 7: 284, 286, 335, 338, 340, 346; Whitelocke, , Memorials, 4: 35Google Scholar; Firth, , Ludlow's Memoirs, I: 365–68Google Scholar; Barebones, Praisegod, “Exact Relation,” Somers Tracts, 6: 276Google Scholar; Cotterell, , “Interregnum Law Reform, pp. 691–92Google Scholar; Gardiner, , Commonwealth and Protectorate, 2: 291 and 311.Google Scholar

19 Spalding, Ruth, The Improbable Puritan, A Life of Bulstrode Whitelocke, 1605-1675 (London, 1975), pp. 134–42Google Scholar; Daniel Earle to Whitelocke, August 23, 1653, Whitelocke Papers, Marquis of Bath Collection, Longleat, XIII, f. 181; Henry Scobell to Whitelocke, October 15, 1653, ibid., XIV, f. 106.

20 John Thurloe to Whitelocke, January 27,1653/4, ibid., XV, f. 32; same to same, January 21, 1653/4, ibid., XV, ff. 27-9, wherein Thurloe informed Whitelocke that the reformation of the Chancery would be referred to Sir Thomas Widdrington, Attorney-General Prideaux and Challoner Chute. Thurloe to Whitelocke, February 4, 1653/4, BL, Add. MSS. 37347, Whitelocke Papers, f. 5r.

21 George Cockaine to Whitelocke, April 2, 1654, Whitelocke Papers, Marquis of Bath Collection, Longleat, XV, f. 107. Spalding, , Improbable Puritan, p. 181.Google Scholar

22 Cockaine to Whitelocke, c. April 3, 1654, Whitelocke Papers, Marquis of Bath Collection, Longleat, XV, f. 108; John Lisle to Whitelocke, April 3, 1654, BL, Add. MSS. 37347, Whitelocke Papers, f. 197v; Thurloe to Whitelocke, April 13, 1654, ibid., ff. 199r and v; Eltonhead to Whitelocke, April 14, 1654, ibid., f. 236r.

23 Widdrington to Whitelocke, April 14, 1654, Whitelocke Papers, Marquis of Bath Collection, Longleat, XV, f. 137; Thurloe to Whitelocke, April 7, 1654, ibid., XV, f. 117.

24 Thurloe to Whitelocke, April 13, 1654, ibid., XV, f. 136; CSPD (1653), pp. 282 and 292, (1653/4), p. 31; Gardiner, , Commonwealth and Protectorate, 3:15.Google Scholar

25 Lisle MS., f. 343r.

26 Cockaine to Whitelocke, April 14, 1654, Whitelocke Papers, Marquis of Bath Collection, Longleat, XV, f. 139.

27 Same to same, May 26, 1654, ibid., XV, f. 196.

28 Leigh, Edward, Second Considerations concerning the High Court of Chancery (London, 1658).Google Scholar

29 Whitelocke, , Memorials, 4: 188.Google Scholar

30 Carlyle, Thomas, ed., The Letters and Speeches of Oliver Cromwell, 3 vols. (Boston, n.d.), 2: 412–13.Google Scholar

31 CSPD (1654), p. 87Google ScholarPubMed; Abbott, Wilbur C., ed., The Writings and Speeches of Oliver Cromwell, 4 vols. (Cambridge, 1947), 3: 338 and 381.Google Scholar

32 CSPD (1654), pp. 202, 219, 233-40, 267 and 303Google ScholarPubMed. Firth, C. H. and Rait, R. S., ed., Acts and Ordinances of the Interregnum, 1642-1660, 3 vols. (London, 1911).Google Scholar

33 Roots, Ivan, “‘Cromwell's Ordinances’: the Early Legislation of the Protectorate,” in Aylmer, G. R., ed., The Interregnum (London, 1972), pp. 153–54Google Scholar. Inderwick, F. A., The Interregnum (1648-1660): Studies of the Commonwealth, Legislative, Social and Legal (London, 1891), pp. 229–30Google Scholar. Robinson suspected the ordinance's debt to the earlier work of the Hale Commission, “Anticipations of Changes in the Law,” Select Essays, 1: 471Google Scholar; Holdsworth also recognized the basic similarity of the two documents but believed the first to be the work of the Nominated Parliament (History of English Law, 1: 433Google Scholar).

34 Commons Journal, 7: 373-76, 390, 394, 407, and 414Google Scholar; Lisle MS., f. 477r: Whitelocke, , Memorials, 4: 152-34, 182 and 188.Google Scholar

35 CSPD (1655), pp. 137, 144, 148, 152–53Google ScholarPubMed; Abbot, , Writings of Cromwell, 3: 688, 696 and 704Google Scholar; Firth, C. H., ed., Clark Papers, Camden Society, 4 vols. (London, 1891–1901), 3: 35–7Google Scholar; Thurloe, John, A Collection of the State Papers of John Thurloe, 7 vols. (London, 1742), 3: 570Google Scholar; see also Inderwick, , Interregnum, pp. 188–189Google Scholar and Parkes, Joseph, A History of the Court of Chancery (London, 1828), pp. 169–70.Google Scholar

36 Whitelocke, , Memorials, 4: 191–201.Google Scholar

37 Ibid., p. 182.

38 Ibid., p. 201; see also Black, Stephen F., “Coram Protectore: The Judges of Westminister Hall Under the Protectorate of Oliver Cromwell,” AJLH, 20 (1976): 54.Google Scholar

39 Inderwick, , King's Peace, pp. 201–203Google Scholar; Gardiner, , Commonwealth and Protectorate, 3: 7, 298–301Google Scholar; Black, , “Coram Protectore,” pp. 46–58.Google Scholar

40 See Spalding's, account in Improbable Puritan, pp. 201–202.Google Scholar

41 Whitelocke, , Memorials, 4: 201Google Scholar. CSPD (1655), pp. 137–38.Google ScholarPubMed

42 Lisle MS., ff. 297v, 298v and 408v. Lisle also had his private complaint against the binding quality of the ordinance. “Such rules made into laws may be good, but if all cases be binding as laws, it may be destructive to many a good case,” Ibid., f. 374r. See also Chief Clerk May-dwell's report of November 1655 on executive of decrees without the writ of attachment except through a sheriff. Ibid., f. 405r. For a report by Lisle on the ambiguity which arose concerning bonds for money payment, see Earl of Kingston v. Earl of Oxford (1655), ibid., f. 30r; Hollis v. Earl of Suffolk (1655), ibid., f. 30r; Cole v. Hill (1655), ibid., f. 30r. On the matter of ambiguity Lisle stated that judges in Chancery should follow former rules until the Protector and Council gave their interpretation of the rules in the ordinance (ibid., f. 275v).

43 Firth, and Rait, , Acts and Ordinances, 3: 958–59Google Scholar. See also 29 Car. II, c. 3, (Statute of Frauds, 1677), sects. 4 and 7, and 15 Geo. V, c, 20, (Law of Property Act, 1925), sects. 40 and 53. Lisle MS., f. 22v; and Leigh v. Tracey and Adeane v. Bowman (1657), ibid., f. 397r.

44 Commons Journal, 7: 429, 494, 527-28, 670Google Scholar. CSPD (1657), pp. 149, 282Google ScholarPubMed and (1658/9), p. 263. Lisle MS., ff. 85v, 278v, 295v, 321v, 343v, and 399v. See also Parkes, , History of Chancery, pp. 168–72.Google Scholar