Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/498

 484 IV. THE NINETEENTH CENTURY hanging hlm.'^ In 1649 Whitelock inveighed against the inequahty of punishment; and in 1656 Cromwell repeated his invective.^ One doctrine of Whitelock's was accepted by the Committee: it was that criminals prosecuted by counsel should be defended by counsel; that criminals should have copies of their indictments, and that their witnesses should be heard on oath. But it seems to have been thought that criminals had already too many chances, and therefore these rights and that of appeal were denied them.^ The law of marriage, in a country such as this, is almost the groundwork of the law of property. The variety, the occasional contempt of ceremony in which the Puritans in- dulged, the downfall of that hierarchy which had taken cog- nizance of matrimonial affairs, made legislation unavoid- ble. A form of solemnization had been prescribed by the Presbyterian Directory, but was regarded with ridicule by Churchmen, with suspicion by those who prescribed it ; others did not regard it at all.* The Committee of 1653 proposed a new order: it became law that year, and in 1656 ceased to be compulsory, but, as optional, was ratified. It directed three weeks' advertisement to be given in Church, chapel or market-place of intended marriages ; the parents' or guardians' consent to be obtained; the form to be a mutual agreement expressed before a justice of the peace: girls below fourteen and boys below sixteen were not to be mar- ried.^ That statute unwittingly revived something of the practice of Christian antiquity ; then the faithful, though he might hallow his union by the benediction of the Church, yet, hating paganism, and perhaps being of the lower or- ders, would avoid anything like confarreatio, and, as a Roman citizen, would be bound by the civil contract only; ^ Statt. 1652, c. 27 (cp. 14 "St. Tr." 639 foil., 690 foil.); 1651, c. 12: 6 Somers's Tracts, 190, 235, and statutes cited above, pp. 589, 590: "Exam. legg. Angl." c. 14, §§29, 32. 'Whitelock, 433; "Life," 109-120: 6 Somers's Tracts' 235: Hutton, 133: "Directions for justices of the peace," No. 7 (prefixed to Kelyng) : Mr. Commissioner Hill, "The repression of crime" (1857), pp. 25-41. 89: Cock, "Christian Govt.," p. 52. » Stt. 1653, c. 6; 1656, c. 10: 6 Somers's Tracts, 179. Cp. the New Engl, law (Lechford, I.e. p. 39).
 * Carlyle's "Cromwell" (speech 5): "Exam. legq. Anql." c. 11.
 * St. 1645, c. 51: Grey on " Hudibras," 3, 1, 888. Cp. Nelson, "Bull,"