III.

1654.

the end of the month patents were made out to CHAP. Aske, a puisne judge of the upper bench, and Thorpe, a baron of the exchequer. At the same time Matthew Hale, a well known character in the history of English jurisprudence, was made a judge of the common bench; and Robert Nicholas, who had previously been a judge in the upper bench, was added to Thorpe in the exchequer.

the Long Parliament, St. John urged to Cromwel, in a meeting held to consider what was to be done, that it was above all things requisite, that the parliament be forthwith terminated, and that the affairs of the nation could never be beneficially settled so long as they remained in authority (p. 451). On the following day, in the parliament itself, Cromwel is said to have addressed himself to St. John, telling him, that he came to do that which grieved him to the very soul, and which he had earnestly with tears prayed to God against: to which St. John replied, he knew not what the other meant, but prayed that whatever was done, might have a happy issue for the general good. (Dugdale, View of the Troubles, p. 405.) If St. John was really expected to die, and was at the worst, as he says, in December and January, his receiving at that time a new patent of office is in all reason a new proof how much he was valued by Cromwel.

It is worthy of remark, that, when Milton introduces in his Defensio Secunda the panegyric of Cromwel's counsellors and assistants in state-affairs, neither Rolle nor St. John are in the list. Nor are they included among the privy counsellors. (See above, p. 22.) The persons commended by Milton are Fleetwood, Lambert, Desborough, viscount Lisle, Pickering, Strickland, Sydenham, Montagu, afterwards earl of Sandwich, and Lawrence, all privy counsellors, to whom he has added Whalley and Overton (eminent military officers, but not of the council), and Whitlocke.

b Docquet Book of the Crown Office.

See above, Vol. III, p. 99.

IV.

BOOK Wild, who had been made chief baron in the year before the king's death, was desirous of being continued in his office, but could not obtain that favour from the protector.

1654.

Springcircuit of

Shortly after these appointments, a list was the judges, formed of twelve persons to hold the assizes at the principal towns of England for the springcircuit. Rolle and Glyn were named for the western circuit, St. John and Atkins for the Oxford, Aske and Richard Newdigate for the home, Thorpe and Richard Pepys for the midland, Nicholas and William Conyers for the Norfolk, and Hale and Hugh Windham for the northern. Five of these persons, Glyn, Newdigate, Pepys, Conyers and Windham had not received patents as judges, and must therefore have officiated merely pro hac vice. Hale, Pepys, Newdigate and Windham were called to the degree of serjeant at this time, together with Steele, the recorder, Maynard, Thomas Fletcher, and Thomas Twisden Glyn and Conyers had been made serjeants in August 1648. We must conclude from the circumstance of Glyn and Maynard, two of the most accomplished lawyers of that period, who had formerly been deeply engaged in the

See above, Vol. II, p. 621.

Whitlocke, Journal of Ambassy, Vol. II, p. 419.

* Several Proceedings, Feb. 16.

h Docquet Book of the Crown Office.

See above, Vol. III, p. 621.

III.

1654.

presbyterian party, being the former of them em- CHAP. ployed, and the latter promoted on the present occasion, that Cromwel had had the skill to engage them in a certain degree to the government by a protector.

of Hale.

It seems necessary, in justice to Cromwel, that Character we should pause a moment at the name of Hale, the only new judge appointed by him at this period. He was endowed with a quality, particularly requisite in such an officer, and that more than any other excites the admiration of the mass of spectators and readers, a fearless spirit, which regards with indifference the frowns and the smiles of those who conduct the government of the state. Burnet tells two stories of him, that tend strongly to illustrate this.

duct in

"Not long after he was made a judge, when His conhe went the circuit, a trial was brought before office. him at Lincoln, concerning the murder of one of the townsmen, who had been of the king's party, and was killed by a soldier of the garrison there. He was in the fields with a fowling-piece on his shoulder, which the soldier seeing, he came to him, and said, it was contrary to an order which the protector had made, that none who had been of the king's party should carry arms, and so he would have forced it from him; but as the other did not regard the order, so being stronger than the soldier, he threw him down, and having beat him, he left him: the soldier went into the town,

BOOK

IV.

1654.

Another example.

and told one of his fellow-soldiers how he had been used, and got him to go with him, and lie in wait for the man that he might be revenged on him. They both watched his coming to town, and one of them went to him to demand his gun, which he refusing, the soldier struck at him, and as they were struggling, the other came behind, and ran his sword into his body, of which he presently died. It was in the time of the assizes, so they were both tried: against the one there was no evidence of forethought felony, so he was only found guilty of manslaughter, and burnt on the hand; but the other was found guilty of murder and though Colonel Whalley that commanded the garrison, came into the court, and urged that the man was killed only for disobeying the protector's orders, and that the soldier was but doing his duty; yet the judge regarded both his reasons and threatenings very little, and therefore he not only gave sentence against him, but ordered the execution to be so suddenly done, that it might not be possible to procure a reprieve, which he believed would have been obtained, if there had been time enough granted for it.

"Another occasion was given him of shewing both his justice and courage, when he was in another circuit: he understood that the protector had ordered a jury to be returned for a trial in which he was more than ordinarily concerned; upon this information he examined the sheriff

III.

1654.

about it, who knew nothing of it, for he said he CHAP. referred all such things to the under-sheriff, and having next asked the under-sheriff concerning it, he found the jury had been returned by order from Cromwel; upon which he shewed the statute, that all juries ought to be returned by the sheriff or his lawful officer; and this not being done according to law, he dismissed the jury, and would not try the cause: upon which the protector was highly displeased with him, and at his return from the circuit, told him in anger he was not fit to be a judge; to which all the answer he made was, that it was very true."

'Hale is the first example, after sir Edward Coke, of a judge setting himself in opposition to the will of the chief executive magistrate.

Cromwel's

It was one of the provisions of the instrument, Powers of called the Government of the Commonwealth, council. that a parliament should be summoned to meet on the third of September following. It was further provided, that the protector and council should have power to raise money for the public defence, and to make such laws and ordinances as the welfare of the nation might require, previously to the meeting of parliament'. Cromwel looked to this interval as affording him an opportunity of giving stability to his government, and

Life of Sir Matthew Hale, p. 40, et seqq. A curious, but garbled, account of the character of this extraordinary man may be found in North's Life of Lord Keeper North, Vol. I.

! See above, Vol. III, p. 596.