to be better established than ever it had been, to assassinate him. He seemed to be much afyet he never had the same serenity of mind he flicted at the death of his friend the earl of had been used to, after he had refused the Warwick, with whom he had a fast friendship; crown; but was out of countenance, and cha-though neither their humours, nor their natures grin, as if he were conscious of not having been were like. And the heir of that house, who true to himself: and much more apprehensive had married his youngest daughter, died about of danger to his person than he had used to be. | the same time; so that all his relation to, or Insomuch as he was not easy of access, nor so confidence in that family was at an end, the much seen abroad; and seemed to be in some other branches of it abhorring his alliance. disorder, when his eyes found any stranger in | His domestic delights were lessened every day: the room; upon whom they were still fixed. he plainly discovered that his son FaulconWhen he intended to go to Hampton Court, bridge's heart was set upon an interest destrucwhich was his principal delight and diversion, tive to his, and grew to hate him perfectly. it was never known till he was in the coach, But that which chiefly broke his peace, was which way he would go; and he was still hemmed the death of his daughter Claypole; who had in by his guards both before and behind; and been always his greatest joy, and who, in her the coach in which he went was always throng-sickness, which was of a nature the physicians ed as full as it could be, with his servants, who were armed; and he seldom returned the same way he went; and rarely lodged two nights to gether in one chamber, but had many furnished and prepared, to which his own key conveyed him and those he would have with him, when he had a mind to go to bed: which made his fears the more taken notice of and public, because he had never been accustomed to those precautions. "It is very true, he knew of many combinations affected him wonderfully." knew not how to deal with, had several conferences with him, which exceedingly perplexed him. Though nobody was near enough to hear the particulars, yet her often mentioning in the pains she endured, the blood her father had spilt, made people conclude, that she had presented his worst actions to his consideration. And though he never made the least shew of remorse for any of those actions, it is very certain, that either what she said, or her death, ADMINISTRATION OF JUSTICE DURING THE USURPATION OF THE GOVERNMENT. In the period between the death of Charles taxes imposed to no other end, than to support the First, and the Restoration of his sou, there the pride and insolence of a single person. were other judicial Proceedings, the insertion Some there were that openly opposed these opof which, in this Work, might have been desir-pressions. And, amongst others, Mr. George able; as for instances, of the case of sir John Sto-Cony, a merchant, who having refused to pay well, mentioned in the third part of Walker's custom, it was violently taken from him; and History of Independency, p. 48: sir John he thereupon sued the collector at the common Gell's Case, Hist. of Independency, part 3, p.law. But Cromwell, resolving to put a stop to 4, 23, 31, et seq: Concerning this Case, Walker mentions a publication under the title of, "Sir John Gell's Case stated," printed about August, 1650. It has been diligently sought for, but without success: Prosecutions of several merchants for not paying customs, mentioned in Walker's History of Independency, part 2, p. 257. (Prynne had shortly after the death of king Charles the First, resisted the tax of 90.000l. a month, imposed by the Parliament, towards the maintenance of the forces. See his "Legal Vindication of the Libcities of England.") such dangerous precedents, caused the counsel for Mr. Cony, who were, serjeant Maynard, serjeant Twysden, and Mr Wadham Wyndham, to be sent to the Tower; where they had not been above three or four days, when they unworthily petitioned to be set at liberty, acknowledging their fault, and promising to do so no more; chusing rather to sacrifice the cause of their client, wherein that of their country was also eininently concerned, than to endure a little restraint, with the loss of the fees for a few days. By this means, when the cause came to the next hearing, Mr. Cony was neces Mr. Cony's was a remarkable Case: Lud-sitated to plead for himself; which he did in low gives the following account of it: "What the Lieutenant-General [Fleetwood] said concerning the disorders of England, was not without ground; things running every day more and more into confusion; the cavaliers being enraged to see the throne usurped; and those who had hazarded all for their country, finding themselves cheated; custom and excise raised without authority of parliament; and as short a manner as he could; referring it wholly to the judge, whether that tax, being not authorised by parliament, ought to be paid by the law of the land; and declaring that he would abide by his judgment therein. Serjeant Rolls, then Chief Justice of the Upper Bench, though a conscientious man, and a lover of civil liberty, yet not daring to determine it for him, said, that something must be allowed to cases of necessity. To which Mr. Cony replied, That it was never wont to be a good plea in law, for a man to make necessities, and then to plead them. But the judge, wanting courage, would not give judginent against the nsurper; and being too much an honest man to give it for him, he took time till the next ensuing term to consider what rule he should give in the case. In the mean time, upon consideration that his continuance in that station was like to ensnare him more and more, he desired, by a letter to Cromwell, to have his quietus; and serjeant Glyn was appointed to succeed him in his employment, as a fitter instrument to carry on the designs on foot. The new Chief Justice, before he came to sit on the bench, took care to have this business accommodated with Cony; who lost his reputation, by withdrawing himself from a cause, wherein the public was so much concerned. Sir Peter Wentworth, a member of the long parliament, caused also a collector in the country to be arrested, and prosecuted at his suit, though he could hardly procure an attorney to appear, or counsel to plead for him. Cromwell, having received notice of this prosecution, sent a messenger, with an order to bring him before the council; where being examined concerning the ground of his proceeding, he told them, that he was moved to it by his constant principle, That, by the law of England, no money ought to be levied upon the people without their consent in parliament.' Cromwell then asked him, Whether he would withdraw his action or no? To which he replied, "If you 'will command me, I must submit;' and thereupon, Cromwell having commanded it, he withdrew his action. Some time after, taking the liberty, in a discourse with him, to reprove him for that retractation, he made me this answer, That no man could have done more than be did, to the time of his appearing at the council; and that if he had then failed in any thing, it must be attributed to his age of threescore and three years; when, said he, the blood does not run with the same vigour as in younger men " his own, in case of the like nature; so this man remembered him, how great an enemy he had expressed himself to such grievances, and had declared, that all, who submitted to them, and paid illegal taxes, were more to blame, and greater enemies to their country, than they who had imposed them; and that the tyranny of princes could never be grievous, but by the tameness and stupidity of the peo"ple.' ~ When Cromwell saw that he could not convert him, he told him, that he had a will as stubborn as his, and he would try which of them two should be master.' Thereupou, with some expressions of reproach and contempt, he committed the man to prison; whose courage was nothing abated by it; but as goon as the term came, he brought his Habeas Corpus in the King's Bench, which they then called the Upper Bench. Maynard, who was of counsel for the prisoner, demanded his liberty with great confidence, both upon the illegality of the commitment, and the illegality of the imposition, as being laid without any lawful authority. The judges could not maintain or defend either, and enough declared what their sentence would be; and therefore the Protector's attorney required a further day, to answer what had been urged. Before that day, Maynard was committed to the Tower, for presuming to question or make doubt of his authority; and the judges were sent for, and severely reprehended for suffering that licence; when they with all humility, mentioned the law and Magna Charta, Croinwell told them, with words of contempt, and derision, their Magna F**** 'should not controul his actions; which he 'knew were for the safety of the Commonwealth.' He asked them who made them judges? whether they had any authority to sit there, but what he gave them? and if his authority were at an end, they knew well enough, what would become of themselves; and therefore advised them to be more tender of that which could only preserve them;' and so dismissed them with caution, that they should not suffer the lawyers to prate what it would 'not become them to hear.' Thurloe's State Papers abound in the Examinations of different persons, respecting Plots against Cromwell, and his authority. Lord Clarendon relates the matter thus: "One time when he had laid some very extraordinary taxes upon the city, one Cony, an eminent fanatic, and one who had heretofore scrved him very notably, positively refused to pay his part; and loudly dissuaded others from Harris notices, that "Cromwell packed Jusubmitting to it, as an imposition notorious-ries on occasion, and displaced judges for ly against the law, and the property of the refusing to follow his directions. Here are my subject, which all honest men were bound to proofs. When judge Hale was on a circuit, (defend.' Cromwell sent for him, and cajoled he understood that the Protector had orderLim with the memory of the old kindness 'ed a jury to be returned for a trial in which and friendship, that had been between them : he was more than ordinarily concerned; upon and that of all men he did not expect this this information, he examined the sheriff 'opposition from him, in a matter that was so about it, who knew nothing of it; for he 'necessary for the good of the Commonwealth.' said he referred all such things to the underIt had been always his fortune to meet with sheriff, and having next asked the under-shethe most rude, and obstinate behaviour from 'riff concerning it, he found the jury had been those who had formerly been absolutely goreturned by order from Cromwell; upon verned by him; and they commonly put him which he shewed the statute that all juries in mind, of some expressions and sayings of ought to be returned by the sheriff or his law ful 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, he 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.' dy of the great seal into the hands of some others, who might be satisfied that it was their 'duty to perform this command, and to put the ' ordinance in execution!' I have said the Protector possibly, was not to be blamed for his conduct in this affair: the reader, however, must judge of this. that "He committed men illegally to prison, and permitted them not the benefit of the laws.The author of "The World's Mistake in Oliver Cromwell," will supply me with sufficient proofs of this. To prove,' says he, Oliver's time was full of oppression and injustice, I shall but instance, in a few of many particulars, and begin with John Lilburne, 'not that I think him in any kind one that deserved favour or respect, but that equal jus'tice is due to the worst, so well as to the 'best men, and that he comes first in order of 'time.' much good in it to the public, but he con fessed, that every one was to satisfy himself in matters to be performed by him, and that ' he had not the worse opinion of any man for refusing to do that whereof he was doubtful; but in this particular the affairs of the Com'monwealth did require a conformity of the "That this may be true is rendered very 'officers thereof, and their obedience to auprobable by letters to Thurloe, part of which I thority, and (being some of us refused to exewill here transcribe. The first is from Mr. · cute this act, as was enjoined) they were comDove, high-sheriff of Wilts, dated Sarum,pelled thereby to put this charge of the custoMarch 29, 1655, relating to the intended trials for rebellion against the Protector. I under'stand a Commission of Oyer and Terminer is issued out for trial of the rebels in the west; and there is a mistrust of my under-sheriff. Sir, I resolve that no one man shall be return'ed in the one or other juries, but such as 'may be confided in, and of the honest well affected party to his Highness, and the pre'sent government. If there be but enough to be found of them through the whole county, which I hope there is, it is and will be my greatest care for that business, to see it punc'tually done, and not trust my under-sheriff' 'therewith.' I suppose he was as good as his word, for both the juries I find highly commended by the solicitor, and other of his Highness's agents, in their accounts of the trials of the unhappy sufferers.-Colonel Lilburne in a letter to the secretary, dated York, April 10, 1655, has the following passage, on a like subject. As for jurors, happily the law may give liberty to choose them without the liberties of this city, both fact and act rising in the county, and then we shall do pretty well: but, if otherwise, there shall be no diligence or care wanting to pick up such as are right.' Practices of this nature could not but be dangerous to the subject. What is said in the text concerning Oliver's displacing of judges, is founded on the authority of Whitelocke. Baron Thorpe, and judge Newdigate, says he, were put out of their places, for not observing the Protector's pleasure in all his commands. I know not, whether I ought to insert under this head the displacing Whitelocke and Widdrington, commissioners of the great seal, for refusing to proceed according to an ordinance made for the better regulating and limiting 'the jurisdiction of the High Court of Chan3 cery.' Possibly the Protector, however heit might be mistaken, really thought his regula-a tion for the public good, and therefore could not be blamed for dismissing such as were not to be prevailed on to concur with him therein. These gentlemen however, as they were deemed by the Protector men of honour and abilities, were employed in other departments, and enjoyed his countenance and encouragement. His speech on the taking away the seal from these commissioners, was remarkable. The 'Protector in the council chamber, very gravely told us, says Whitelocke, that he was sorry some of us could not satisfy our own consciences, to execute the ordinance concerning 'the Chancery, which they were informed had ، | "1. John, in 1649, was, by order of the then 'parliament, tried for his life, with an intent, I believe, of taking him away, but the jury not finding him guilty, he was immediately, according to law, generously set at liberty by those that had quarrel enough against him. This example in the parliament, of keeping to the laws in the case of one, who was a professed implacable enemy to them, ought to have been copied by Cromwell; but, in the contrary, to shew that there was a difference be'twixt his and his predecessors (the long parliament's) principles, when the law had again, upon a second trial (occasioned by Oliver) 'cleared Lilburne, the parliament's submitting 'to the law was no example to him; for, contrary to law, he kept him in prison, until he was so far spent in a consumption, that he only turned him out to die.' 6 "2. Mr. Cony's Case is so notorious that needs but little more than naming: he was prisoner at Cromwell's suit, and being brought to the King's Bench bar by a Habeas Corpus, had his counsel taken from the bar, ' and sent to the Tower for no other reason, than the pleading of their client's cause; an act of violence, that, I believe, the whole story ' of England doth not parallel. This was on the 18th of May, 1655. The gentlemen thus committed, were Maynard, Twysden and Windham, men of great eminence in their profession, who could find no release from their imprisonment, but by humbly petitioning the Protector. But to go on. 66 6 3dly. Sir Henry Vane, above any other 'person, was the author of Oliver's advance 'ment, and did so long and cordially espouse 6 6 ( 'forthwith: that the same day, in the after- 4thly. In Richard's assembly, certain prisoners in the Tower, under the then lieutenant, and some sent thence to Jersey, and other places beyond the sea, complained of 'false imprisonment. Their gaoler was sent for, and being required to shew by what authority he kept these persons in hold, produceth a paper all under Oliver's own hand, as followeth. Sir, I pray you seize such and "such persons, and all others whom you shall judge dangerous men; do it quickly, and you shall have a warrant after it is done.' The nature of this warrant was by Richard's assembly debated, and having first Richard's own counsel's opinions in the case, as serjeant Maynard, &c. they voted the commitments of the complainants to be illegal, unjust and tyrannical; and that, first, because the warrant by which they were committed, was un'der the hand of the then (as they called him) 'Chief Magistrate, who, by law, ought not to commit any by his own warrant. Secondly, 'because no cause was shewn in the warrant; and thirdly (in the case of those sent out of the reach of a Habeas Corpus, which in law is a banishment), because no Englishman ought to be banished by any less authority than an act of parliament. And, therefore, for these reasons they voted farther, that the prisoners should be set at liberty without paying any fees or charges. But the turning out and punishing the lieutenant by the assembly (for obeying so unjust a warrant) was prevent'ed by their sudden dissolution.'' Most of the facts here recited, are well known to those "The high courts of justice.-The erection versed in this part of the English history, and of a high court of justice for the trial of Charles may be established on the best authorities. gave rise to many others. When the nature of But on consulting the Journals of the parlia- the supposed crime was such as fell not under ment, here referred to, I find a mistake relat- the cognizance of the common law; when the ing to the commitments by Oliver. On Satur- persons accused were of a quality which might day the 26th of Feb. 1658, says the Journals, incline a jury to treat them with compassion Mr. Terillreported from the grand committee and regard; or when they had been engaged of the house for grievances and courts of jus- in actions popular, though illegal, it was then tice, the state of the case concerning Mr. thought proper by those in power to erect high John Portmans, a prisoner in the Tower, as courts of justice, in order that offenders might it appeared to the committee; viz. That the not escape punishment. These courts were lieutenant of the Tower, the 3rd of Feb. 1657, constituted of commissioners named by the goreceived a letter from the late Lord Protec-vernment, who performed the several offices of tor, early in the morning, directing him to ap-judges and juries, and determined concerning prehend Mr. John Portmans (amongst others) the law and the fact. The Attorney-General 6 seemed to give a sanction to it. But what is unreasonable never satisfies. It was urged that trials by juries were the birthrights of Englishmen; that all trials for Treason were to be had and used only according to the due order and course of the common laws of the realm, and not otherwise, upon inquest and presentment by the oaths of twelve good and lawful men, upon good and probable evidence and witness; and that if any thing be done to the contrary, it shall be void in law, redressed and holden for error and nought: and if any statute be made to the contrary, that shall be holden for none. That to proceed against any without legal indictment, presentment and trial, in the way of the high courts of justice, was very unequitable; the Commissioners themselves being both grand and petty jury, and judges likewise, if not parties interested, to whom no peremptory or legal challenges could be made; and finally, that such proceedings were contrary to Magna Charta; the Petition of Right; the Declarations of the Parliament; and to an article in the Instrument of Government which was sworn to by the Protector himself. How good soever these pleas might have been, they were not suffered to be of use to the prisoners. Judges are generally well enough satisfied of the authority by which they act, and will not have it questioned. To demur to the jurisdiction, or refuse to answer, is equivalent to the clearest proof of guilt, and judgment is accordingly given. However, the Protector had his end by this method of proceeding. He generally managed the evidence against the prisoners, and few escaped who were cited before these tribunals. The duke of Hamilton, and the lords Holland and Capel, Christopher Love and Mr. Gibbons, with some others, were sentenced to die by courts thus constituted, who, probably, before another kind of judicature, would have met with a milder treatment, though, as the laws then were, they could not but be deemed offenders. When Cromwell came to the government, he made use of the same methods of trial on several occasions : and in the year 1656, the parliament passed An Act for the security of his highness the Lord Protector's person, and continuation of the nation in peace and safety.' In the preamble it is said, Forasmuch as the prosperity and safety of this nation-very much de'pendeth, under God, upon the security and preservation of the person of his Highness; and, for that it hath manifestly appeared, that divers wicked plots and means have been of late devised and laid, to the great endangering his Highness's person, and the embroiling this Commonwealth in new and intestine wars and seditions: therefore be it enacted, that if any person shall attempt, compass or imagine the death of the Lord Protector, and declare it by open deed; or shall advisedly and maliciously proclaim, declare, publish or promote Charles Stuart, or any other person claiming from the late King; or shall aid and assist, • hold intelligence with, or contribute money towards the assistance of the said Charles Stuart, his brothers or mother, &c. then all and every the offences abovementioned shall be adjudged to be High Treason: and that in all such cases, and upon all such occasions, the Lord Chancellor, the Lord Keeper, or 'Lords Commissioners of the Great Seal of England for the time being, are authorised and required from time to time, by warrant from his Highness, to issue out one or more Commission or Commissions, under the Great Seal of England, to--&c.- or any seven'teen or more of them which said Commis'sioners shall have authority to hear, examine and determine all matters, crimes and offencesable, and upright administration of justice, in aforesaid; and also to hear and determine all 'mnisprisions of the treasons in this act mentioned, and to take order for charging the of'fender or offenders, with all or any the crimes • aforesaid, and for the receiving their personal answer thereunto; and for examination of 'witnesses upon oath, and thereupon, or upon 'the confession of the party, or, in default of 'such answer, to proceed to conviction and final sentence, as in cases of High Treason, and Misprision of Treason, according to justice and the merits of the cause.'- Commis sioners were also appointed for the same por-prises, and for the subsequent protection of pose in Scotland and Ireland. This act was 6 to continue in force unto the end of the last 'session of the next parliament, and no longer.' By this last clause it seems suficiently evident that the framers of this law were sensible of its severity and ill consequences. However, this 6 6 thought it more effectual,' says Whitelocke, than the ordinary course of trials at the common law, and would the more terrify the of'fenders' and terrify it did; for, on the erection of the last high court of justice, according to Clarendon, it put all those who knew how liable they themselves were, under a terrible 'consternation.' Whitelocke would not sit when nominated as a Commissioner, it being, as he says, against his judgment.” Mr. Burke seems to have had a very lively scuse of Cromwell's merit in providing for the cases in which his own interests were not involved. In his "Letter to a Member of the National Assembly," vol. 6, of his Works, pp. 14, 15, ed. 1808, he thus contrasts Cromwell's conduct in this respect with that of the French Revolutionists. "Your rulers brought forth a set of men steaming from the sweat and drudgery, and all black with the smoak and soot of the forge of confiscation aud robbery, ardentis massæ fuligine lippos,' a set of men brought forth from the trade of hammering arms of proof, offensive and defensive, in aid of the enter housebreakers, murderers, traitors, and malefactors; men who had their minds seasoned with theorics perfectly conformable to their practice, and who had always laughed at possession and prescription, and defied all the fundamental maxims of jurisprudence. To the hor |