Oliver Cromwell & Mdash; The Grinch that Stole Christmas
Keeping track of legislative history-even within one`s own jurisdiction-is not always easy. Some sources-even primary sources-are obscure. One such instance is the legislation of the English Interregnum. The English Common Law conveniently smoothes over this disruption to legal continuity by means of a legal fiction. The restored monarchy takes effect as if the discontinuity had never taken place. Although not king de facto until 29 May 1660, Charles II is king de jure from the execution of Charles I on 30 January 1649. The regnal years flow unabated for parliaments without a king, no less than they did for the 11 years that Charles I ruled personally without a parliament. Historians focus on the facts, while lawyers prescribe a greater forcefulness to law. The Interregnum is a fact that for its own time took precedence over law. Nevertheless, what is one to do with the 10 years of intervening and often anomalously enacted legislation? The proponents of the Cromwellian Protectorate say recognise it, while the Restoration Monarchists say ignore it. There has already been a long drawn-out Civil War, so the compromise is to leave the records hard to find and let the legislation languish, thus providing one of the earliest examples of political correctness. Under various rules of recognition, the intervening legislation of the Long and Little Parliaments, together with the Ordinances of the Protectorate, have legislative status. As seen to satisfy the legislative protocols of their own time, such Acts and Ordinances are arguably either statute law, or else, through subsequent parliamentary confirmation, are given the force of statute law. The fact remains that much of this extraordinary legislation remains hard to find. Rumours abound-especially in such areas of highly disputatious, politically controversial, radically reformative, and otherwise outrightly pathological legislation. Until authenticated, one of the most obvious examples of apparently apocryphal, but obviously pathological legislation is that which outlawed the celebration of Christmas in England. This article tracks this legislation down to an Appendix to the Directory for Public Worship. According to its title, this was `an Ordinance for taking away the Book of Common Prayer and for establishing and putting in execution of the Directory for the Publique Worship of God`. Although without royal assent, this was passed by the Lords and Commons assembled in the Parliament on 4 January 1644/1645. This article is as much concerned with the process of legislative research and legal authentication as it is with the substantive and jurisprudential issues.
Publisher: Oxford University Press
Keywords: Legislation; Common law
Research Type: Journal Article