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Assizes against a soldier of the garrison, for the murther of a townsman who had been of the King's party. The latter was in a field with a fowlingpiece on his shoulder, upon which the soldier informed him, he was acting contrary to an order made by the Protector, that no royalist should carry arms,' and would have forced his gun from him; but he, being stronger than his assailant, threw him down, and having beaten him, left him. The soldier, telling a comrade how he had been used, prevailed on him to assist him in taking revenge. Accordingly, they both watched the unsuspecting citizen, upon his return to the town, again demanded his gun which was again refused, and while his new foe was struggling with him, the other came behind, and running his sword into his body killed him on the spot. This happened in the time of the Assizes, so that they were both tried soon after the fact. Against the comrade there was no proof of malice prepense: he was, therefore, found guilty only of manslaughter, and burnt in the hand. But the other, on the clearest evidence, was convicted of murther; and though Colonel Whalley, Governor of the garrison, urged that “ the man was killed for having disobeyed the Protector's order, and that the soldier had only done his duty,' the Judge paid little regard either to his reasoning, or to some menaces which he threw out; not only passing sentence against him, but ordering execution to be done so suddenly, that there could be no time to apply for a reprieve.
He was at this time, we learn from the same authority, elected a member of parliament (for there being then no House of Lords, Judges might be chosen to sit in the House of Commons), and he attended it with the design of obstructing the mad and wicked projects then set on foot by two parties, who had very different principles and ends.
On one hand, some that were perhaps more sincere, yet were really brainsick, designed they knew not what; being resolved to pull down a standing ministry of the law and property of England, and all the ancient rules of this government, and set up in it's room an indigested enthusiastical scheme, which they called the Kingdom of Christ, or of his Saints :' many of them being really in expectation, that one day or another Christ would come down and sit among them, and at least they thought to begin the glorious thousand years mentioned in the Revelation.
Others at the same time, taking advantages from the fears and apprehensions that all the sober men of the nation were in, lest they should fall under the tyranny of a distracted sort of people, who to all their other ill principles added great cruelty, which they had copied from those at Munster in the former age, intended to improve that opportunity to raise their own fortunes and families. Amidst these, Judge Hale steered a middle course; for, as he would engage for neither side, so he with many more worthy men came to parliaments more out of a design to hinder mischief, than to do much good; wisely foreseeing that the inclinations for the Royal Family were daily growing so much, that in time the disorders then in agitation would ferment to that happy resolution, in which they determined in May, 1660. And, therefore, all that could be then done was, to oppose the ill designs of both parties,
the enthusiasts as well as the usurpers. Among the other extravagant motions made in this parliament, one was to destroy all the records in the Tower, and to settle the nation on a new foundation : so he took his province to himself to show the madness of this proposition, the injustice of it, and the mischiefs that would follow on it; and he did it with such clearness and strength of reason, as not only satisfied all sober persons (for it may be supposed, that was soon done), but stopped even the mouths of the frantic people themselves.
Thus he continued administering justice, till the Protector died; but then he both refused the mournings that were sent to him and his servants for the funeral, and likewise to accept the commission tendered to him by Richard Cromwell; alleging, that he could no longer act under such authority. In the parliament convened by the new Protector in January, 1659, he was elected one of the burgesses for the University of Oxford, in gratitude chiefly perhaps for the service which he had formerly rendered that body. In the Healing Parliament of 1660, which recalled Charles II., he sat as representative for the county of Gloucester. *
Averse as he was from those principles, says Mr. Serjeant Runnington, which actuated the government of Cromwell, he nevertheless avoided the extre
* To procure voices, his competitor had spent nearly 10001., a great sum to be employed that way in those days! while Hale had not only been at no cost (far, indeed, from soliciting the station, he had long withstood those, who pressed him to appear) but even declined promising to appear till three days before the election ; yet such was the love and esteem of him in the neighbourhood, that he was preferred.
mities, into which the temerity of the loyalists too often precipitated them. Faction and party he equally despised; nay, attached as he was to monarchy and his Sovereign, upon the Restoration (of which he was a considerable promoter) he was unwilling to receive Charles without reasonable restrictions; conceiving this to be, of all other incidents, the most opportune to limit that prerogative, which had given rise to such recent and unparallelled calamities.
We are taught under every form of government to apprehend usurpation, either from the abuse, or from the extension, of the executive power; and, though it be no advantage to a prince to enjoy more power than is consistent with the good of his subjects, yet this maxim is but a feeble security against the passions and the follies of men. Those who are entrusted with power in any degree are disposed, from the mere dislike of constraint, to remove opposition. Sensible of such truths, Hale moved the Commons that, ' a Committee might be appointed to look into the propositions which had been made, and the concessions which had been offered by the late King; that they might thence digest such propositions, as they should think fit to be sent over to the King'.
This motion, through the influence of Monk, failed of success. It showed, however, that Hale entertained a warm regard for the republic, a high respect for it's laws, and that he was no friend to those opinions which tended to support the indefeasible right of prerogative. The motives, which determined the fate of this motion, were the very reverse of, and equally in extreme with, those which influenced the Commons against Charles I. The ge
neral opinion now seemed to condemn all jealous capitulations with the Sovereign. Harassed with convulsions, men ardently wished for repose, and were terrified at the mention of negotiation or delay. Added to this, the passion for liberty, having produced such horrid commotions, began to give place to a spirit of loyalty and obedience.
Why Monk should disapprove the imposition of rational conditions, is not easily to be accounted for: he seemed resolved, however, that the crown he intended to restore should be conferred on the King free and unincumbered. He knew not, perhaps, that liberty is never in greater danger, than when we measure national felicity by the blessings which a prince may bestow, or by the mere tranquillity which may attend an equitable administration. The Sovereign may dazzle with his heroic qualities; he may protect his subjects in the enjoyment of every animal advantage or pleasure: but the benefits arising from liberty are of a different sort. They are not the effects of a virtue and of a goodness which operate in the breast of one man, but the communication of virtue itself to many, and such a distribution of functions in civil societies, as gives to numbers the exercise and occupations which pertain to their nature.
Charles, immediately after his restoration, came to the House of Peers, and in the most earnest terms pressed an act of general indemnity: urging not only the necessity of it, but the obligation of a promise which he had formerly given; a promise, which he would ever regard as sacred, since to that he probably owed the satisfaction of meeting his parliament.' This measure of the King, though irregular, was received with great satisfaction; and the Commons,