ing only by right to the lawful prince, it feemed not warrantable to proceed to a capital sentence by an authority derived from ufurpers; yet at first he made distincti on between common and ordinary felonies, and offences against the state; for the last he would never meddle in them; for he thought thefe might be often légal and warrantable actions, and that the putting men to death on that account was murder; but for the ordinary felonies, he at first was of opinion that it was as neceffary even in times of ufurpation to execute juftice in those cases, as in the matters of property; but after the king was murdered, he laid by all his collections of the pleas of the crown; that they might not fall into ill hands, he hid them behind the wainscotting of his ftudy; for he faid, "There was no more occafion to use them, till the king "fhould be again restored to his right," and fo upon his majesty's restoration he took them out, and went on in his defign to perfect that great work.

Yet for fome time after he was made a judge, when he went the circuit, he did fit on the crown fide, and judged criminals: but having confidered farther of it, he came to think, that it was at least better not to do it; and fo after the second or third circuit, he refused to fit any more on the crown fide, and told plainly the reason, for in matters of blood, he was always to choose the fafer side: and indeed he had fo carried himself in fome trials, that they were not unwilling he fhould withdraw from medling farther in them, of which I fhall give fome inftances.

Not long after he was made a judge, which was in the year 1653, when he went the circuit, a trial was brought before him at Lincoln, concerning the murder of one of the townfmen, who had been of the king's party, and was killed by a foldier of the garrifon there. He was in the fields with a fowling-piece on his fhoulder, which the foldier feeing, he came to him and faid; it was contrary to an order: which the protector had made, "That none who had been "of the king's party thould carry arms," and fo he would have forced it from him; but as the other did not regard the order, fo being ftronger than the foldier, he threw him down, and having beat him, he left him: the foldier went into the town, and told one of his fellow-foldiers how he had been used, and get him to go with him, and ly ire

1

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 refufing, the foldier ftruck at him, and as they were ftruggling, the other came behind, and run his fword into his body. of which he prefently died. It was in the time of the affizes, fo they were both tried: against the one there was no evidence or forethought felony, fo he was only found guilty of man-flaughter, and burnt in the hand; but the other was found guilty of murder: and though colonel Whaley that.commanded the garrison, came into the court and urged, "That the

man was killed only for difobeying the protector's orders, "and that the foldier was but doing his duty;" yet the judge regarded both his reafons and threatnings very little, and therefore he not only gave fentence against him, but ordered the execution to be fo fuddenly done, that it might not be poffible to procure a reprieve, which he believed would. have been obtained, if there had been time enough granted for it.

Another occafion was given him of fhewing both his juftice 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 fheriff about it, who knew nothing of it, for he faid he referred all fuch things to the under-fheriff, and having next asked the under-fheriff concerning it, he found the jury had been returnd by order from Cromwell. Upon which he fhewed the statute, that all juries ought to be returned by the theriff, or his lawful officer; and this not being done according to law, he difmiffed the jury, and would not try the caufe: upon which the protector was highly difpleafed 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 anfwer he made was, "That it was very true."

Another thing met him in the circuit, upon which he' refolved to have proceeded feverely; fome anabaptifts had rushed into a church, and had disturbed a congregation, while they were receiving the facrament, not without fome violence. At this he was highly offended, for he faid It was intolerable for men, who pretended fo highly to liberty of confcience, to go and difturb others;.

66

efpecially thofe who had the incouragement of the law on their fide:" but thefe were fo fupported by fome great magistrates and officers, that a stop was put to his proceedings; upon which he declared he would" meddle 66 no more with the trials on the crown fide."

When Penruddock's trial was brought on, there was a special meffenger fent to him, requiring him to affist at it. It was in vacation-time, and he was at his country-house at Alderly: he plainly refused to go, and faid, "The "four terms, and two circuits, were enough, and the little "interval that was between, was little enough for their private affairs:” and fo he excufed himself: he thought it was not neceffary to speak more clearly; but if he had been urged to it, he would not have been afraid of doing it.

He was at that time chofen a parliament-man (for there being then no houfe of lords, judges might have been chofen to fit in the houfe of commons) and he went to it, on defign to obftruct the mad and wicked project, then on foot, by two parties, that had very different principles and ends.

On the one hand, fome that were perhaps more fincere, yet were really brain-fick, defigned they knew not what, being refolved to pull down a itanding ministry, the law, and property of England, and all the ancient rules of this government, and fet up in its room an indigested enthusiaftical scheme, which they called the kingdom of Christ, or of his faints; many of them being really in expectation, that one day or another, Christ would come down, and fit among them, and at least they thought to begin the glorious thoufand years, mentioned in the Revelation.

Others at the fame time, taking advantages from the fears and apprehenfions, that all the fober men of the nation were in, left they should fall under the tyranny of a distracted fort of people, who to all their other ill principles added great cruelty, which they had copied from thofe 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 courfe; for as he would engage for neither fide, so he, with a great many more worthy men came to parliaments, more out of a defign to hinder mischief, than to do much good; wifely forefeeing, that the inclinations for the royal family were daily growing fo much, that in time, the diforders 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 oppofe the ill defigns of both parties, the enthufiafts as well as the ufurpers. Among the other extravagant motions inade in this parliament, one was, to deftroy all the records of the tower, and to fettle the nation on a new foundation; fo he took this province to himself to thew the madness of this propofition, the injustice of it, and the mischiefs that would follow on it; and did it with fuch clearness, and ftrength of reafon, as not only fatisfied all fober perfons (for it may be fuppofed that was foon done) but stopt even the mouths of the frantic people themselves.

Thus he continued adminiftring juftice till the protector died; but then he both refufed the mournings that were fent to him and his fervants for the funeral, and likewife to accept of the new commiffion that was offered him by Richard; and when the reft of the judges urged it upon him, and imployed others to prefs him to accept of it, he rejected all their importunities, and faid, "He could act "no longer under fuch authority."

He

He lived a private man till the parliament met that called home the king, to which he was returned knight of the fhire from the county of Glocefter. It appeared at that time how much he was beloved and esteemed in his neighbourhood, for though another who stood in competition with him had spent near a thousand pounds to procure voices, a great fum to be employed that way in thofe days, and he had been at no cost, and was fo far from foliciting it, that he had food out long against those who preffed him to appear, and he did not promise to appear, till three days before the election, yet he was preferred. was brought thither almoft by violence, by the lord (now earl of) Berkeley, who bore all the charge of the entertainments on the day of his election, which was confiderable, and had engaged all his friends and intereft for him: and whereas by the writ, the knight of a fhire must be miles gladio cinctus, and he had no fword, that noble lord girt him with his own fword during the election, but he was foon weary of it, for the imbroidery of the belt did not fuit well with the plainnefs of his clothes: and indeed the election did not hold long, for as foon as ever he came into the field, he was chofen by much the greater number, though the poll continued for three or four days.

In that parliament he bore his fhare, in the happy peried then put to the confusions that threatned the utter ruin of the nation, which, contrary to the expectations of the most fanguine, settled in fo ferene and quiet a manner, that those who had formerly built fo much on their fuccefs, calling it an answer from heaven to their folemn appeals, to the providence of God, were now not a little confounded, to see all this turned against themselves, in an instance much more extraordinary than any of thofe were, upon which they had built fo much. His great prudence and excellent temper led him to think, that the fooner an act of indemnity were paffed, and the fuller it were of graces and favours, it would fooner fettle the nation, and quiet the minds of the people; and therefore he applied himself with a particular care to the framing and carrying it on: in which it was visible he had no concern of his own, but merely his love of the publick that fet him on to it.

Soon after this, when the courts in Westminster-Hall came to be fettled, he was made lord chief baron; and when the earl of Clarendon (then lord chancellor) delivered him his commiffion in the fpeech he made according to the custom on fuch occafions, he expreffe his esteem of him in a very fingular manner, telling him among other things, "That if the king could have "found out an honester and fitter man for that employ

ment, he would not have advanced him to it; and "that he had therefore preferred him, because he knew "none that deferved it fo well." It is ordinary for perfons fo promoted to be knighted, but he defired to avoid having that honour done him, and therefore for a confiderable time declined all opportunities of waiting on the king; which the lord chancellor obferving, fent for him upon bufinefs one day, when the king was at his house, and told his majefty, there was his modest chief baron, upon which, he was unexpectedly knighted.

He continued eleven years in that place, managing the court, and all proceedings in it, with fingular juftice. It was observed by the whole nation, how much he raised the reputation and practice of it: and thofe who held places, and offices in it, can all declare, not only the impartiality of his juftice, for that is but a common virtue, but his generofity, his vaft diligence, and his great exactVOL. I.

C

nefs