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to his client, so that he was not to be daunted with threatenings.”
Notwithstanding his aversion to political engagements, we are told by Wood *, that in the year 1643 Hale took the covenant, and appeared several times with other lay persons in the assembly of divines at Westminster. He was held in much esteem by the members of the parlia. mentary party, and in his capacity of counsel was added to the commissioners deputed by parliament to treat with the royal commissioners, as to the reduction of Oxford. On this occasion, he exerted himself to save that ancient seat of learning from the destruction with which it was threatened. On the death of Charles I., and the establishment of the commonwealth, Hale, less scrupulous than his friend Vaughan, who wholly declined practice until the restoration, took the engagement “ to be true and faithful to the commonwealth of England, without a king or house of lords ;” an act which the high court of justice seem to have required before they would permit counsel to argue. t Having by this engagement secured the confidence of the parliament, Hale was, on the 20th of January, 1651-2, appointed one of a committee to consider the reformation of the law. In this labour he had some singular associates, amongst whom may be mentioned Majorgeneral Desborough, Col. Tomlinson, and the celebrated Hugh Peters. The latter was one of the most active members of the committee : according to Whitelocke , “ he understood little of law [Note 29.], was very opinionative, and would frequently mention some proceedings of law in Holland, wherein he was altogether mistaken.” The committee met several times in the house of lords; but considering the nature of the times and of the materials of which it was composed, it is not wonderful that little was effected by its labours. Some resolutions were, however, passed, which may afford suggestions not unworthy of the attention of those who • Ath. Ox., vol. ii. col. 574.
See the trial of Love, 5 State Trials, 211. Memorials, p. 520.
are desirous of seeing the abuses of our suits at law amended.* The following may be taken as a specimen. “ If the defendant in a personal action before pleading tender satisfaction to the plaintiff, with costs of suit, and it appear afterwards at the trial to the jury sufficient, and not accepted of, the plaintiff to lose his own and pay the other's costs in the suit.” [Note 30.]
On the death of the king, and the destruction of that authority from which, according to the theory of the constitution, the judges derived their powers, six out of the twelve judges immediately resigned their offices. The two chief justices, the chief baron, and three of the puisne judges, however, signified their readiness to continue in the exercise of their functions, provided the commons passed a declaration in favour of maintaining the fundamental laws of the realm, and at the same time repealed the oaths of allegiance and supremacy. A vote was also passed for filling up the six vacant seats, which were mostly supplied by the promotion of serjeants. + On a vacancy again occurring in the common pleas, the place was offered to Hale, who had previously, on the 25th of January, 1653, been created a serjeant. It has been supposed, that this offer was made by the desire of Cromwell, who was willing to remove from the bar a man whose honest and resolute character might prove injurious to his service; but it is more probable, that Hale was raised to the bench as one whose early connections with the country party rendered him not un. acceptable to the predominant faction. At first he hesitated as to the acceptance of the proffered dignity. His practice was considerable and lucrative, and he had some doubts as to the propriety of acting under a commission from the then ruling powers. Upon being urged, however, by many persons, and even by Sir Orlando Bridgman and Sir Geoffrey Palmer, men of his own profession, and much attached to the royal party, and having satisfied some of his scruples by conversing with two eminent divines, Dr. Sheldon and Dr. Henchman, he came to the resolution, “ that as it was absolutely necessary to have justice and property kept up at all times, it was no sin to take a commission from usurpers.” [Note 31.] On his appointment to the bench, Hale did not hesitate for some time, in the usual routine of his judicial duties, to preside at the trial of criminals, though he refused to take any part in the proceedings instituted against individuals for political offences. At length he began to entertain scruples, which would appear to be wholly unfounded, with regard to the lawfulness of inAlicting punishment by virtue of the commission under which he sat, and accordingly he refused to sit on the crown side at the assizes. It is probable that this refusal was not unpleasing to the government, as upon more than one occasion Hale had displayed a resolution not to favour the wishes of those in power at the expense of justice. Soon after he was raised to the bench, two soldiers were tried before him at Lincoln for murder, under the following circumstances. An inhabitant of Lincoln, who had been one of the royal party was met by one of the soldiers in the fields with a fowling-piece in his hand. The soldier observing him with the arms informed him that the protector had ordered that none who had been of the king's party should carry arms, and attempted to force them from him. The man resisted, and, throwing the soldier down, beat him and left him. The soldier having met with one of his companions, prevailed upon him to accompany him for the purpose of taking revenge. They accordingly watched for their adversary, and on his approach, the soldier who had before demanded the fowling-piece again addressed him; and while they were struggling for the possession of the arms, the other soldier, coming behind the man, ran his sword through his body. For this act the men were tried: one of them was found guilty of manslaughter, the other of murder. At the trial Col, Whaley, who was in command of the garrison, came into court, and, addressing the bench, urged that the deceased was killed for disobeying the protector's orders, and that the soldier had but done his duty. The judge, however, was neither convinced by the colonel's arguments nor daunted by his threats; and passing judgment upon the prisoner, ordered speedy execution to be done, lest a reprieve should be granted. Upon another occasion, also, he displayed a degree of moral courage, and a sense of justice, highly honourable to him. Understanding that the protector had ordered a jury to be returned to try a cause in which he was particularly interested, the judge called upon the sheriff to give an explanation of this transaction. The sheriff professed himself wholly ignorant of it, and referred to the undersheriff, who admitted the jury had been returned by an order from Cromwell. Hale, having pointed out the statute which directs that all juries shall be returned by the sheriff or by his lawful officer, dismissed the jury, and refused to try the cause. On his return from the circuit the protector expressed his high displeasure at his conduct, and told him, in anger, that he was not fit to be a judge; to which the only answer Hale returned was, that it was very true.
* Memorials, p. 520.
+ Com. Journ. 1 June, 1649. t Wood. Ath. Ox, ubi sup.
In some instances he was prevented, by the exertion of an authority which he could not control, from giving a clear way to the course of justice. Some anabaptists had rushed into a church, and violently disturbed the congregation while engaged in receiving the sacrament. This outrage having reached the ears of Hale while on the circuit, he resolved to have the offenders brought to justice, it being intolerable, as he well observed, that those who pretended so highly to liberty of conscience should molest others in the exercise of their religion. The proceedings against these offenders were, however, stayed by an authority superior to that of the judge. It would, perhaps, have been more honourable to Hale if, notwithstanding the disgust which the injustice of such proceedings occasioned, he had still persevered in distributing the criminal laws of the country with honesty and impartiality. It does not appear that his secession
from the crown courts was the consequence of any hint from the government; for on the trial of Penruddock a special messenger was despatched to him requiring him to assist at it. It was at this time vacation, and the judge was resident at his country house at Alderley. His answer was, that he thought four terms and two circuits were enough, and that the short interval of rest was barely sufficient for the arrangement of his own affairs, and upon this ground he excused himself.
In the year 1654, while filling the office of one of the justices of the common pleas, Hale was elected one of the five knights of the shire returned to parliament for the county of Gloucester. [Note 32.] He does not appear to have entertained any scruples at the lawfulness of appearing in that assembly, where he proposed a resolution which indicated very clearly the nature of his political sentiments. He moved that the legislative authority should be affirmed to be in the parliament of the people of England, and a single person qualified with such instructions as that assembly should authorize, but that the military power for the present should reside in the protector. * He likewise exerted himself as became his character to moderate the wild designs which were brought forward by various enthusiastic members. Amongst other extravagant motions, was one to destroy all the records in the Tower, and to settle the nation on a new foundation. The opposition of Hale, whose intimate acquaintance with those relics of former ages was well known, was successful; and such was the zeal with which he spoke, that “he stopped even the mouths of the frantic people themselves.”
On the death of Oliver Cromwell, Hale refused to act under a commission from the Protector Richard, alleging that he could no longer sit under such authority. In the same year, he was returned as one of the members for the university of Oxford; and, in 1660, he appeared as knight of the shire for the county of Gloucester, in the
* Goddard's Journal, prefixed to Burton's Diary, vol. i. Godwin, vol. iv. p. 118.