Objection: "The mortgagor would often be unjustly turned out of possession, and there is more reason for allowing the interference of a Court of Equity on mortgages than on bonds and other securities, where it is and must be allowed. By the negation to the granting of injunctions in cases of waste, timber might be felled, houses pulled down, meadows and ancient pasture ploughed up to the irreparable loss of the plaintiffs and the Commonwealth."* The Lords Commissioners went on for a whole term after the making of the "ordinance,” refusing to observe it. Whitelock said, “that he had taken an oath to execute the place of Commissioner of the Great Seal legally and justly, and for him to execute that 'ordinance' as a law, when he knew that those who made it had no legal power to make law, could not be justified in conscience, and would be a betraying of the rights of the people of England." CHAP. LXXI. 1665. The day after term they were summoned before the Lord June 6. Protector and the Council, and ordered to bring the Great Lords Seal with them, which they knew was the signal of their Commis dismissal. sioners summoned Council. His Highness told them "that every one was to satisfy his before the own conscience in a matter to be performed by himself, and that he had not a worse opinion of any man for refusing to do that which he was dubious of; but that the affairs of the Commonwealth did require obedience to authority, and that the Great Seal must be put into the hands of others who might be satisfied that it was their duty to perform that command." dismissed. Whitelock and Widdrington both tried to justify them- They are selves; but the Protector required them to lay down the Seal, and to withdraw. Having, after the example of the Kings, kept the Seal some days in his own possession, and personally directed the sealing of various instruments, without any Lord Chancellor, or Lord Keeper, or Lords Commissioners, he delivered it to a new Lord Commissioner,Colonel FIENNES, a soldier, and to the noted Major LISLE, I find one regulation, however, more reasonable, "that the Masters in Chancery shall sit in public;" to which the only objection was, "that it was so worded as to take away the power of excepting to their Report." CHAP. Great Seal committed to the keep ing of a Colonel and a Major. History of Lord Com- "a man for all assays, who had no other knowledge of the business he undertook beyond the little he had learned by accompanying the late Commissioners." In presence of his Highness and his Council, they took the oaths appointed by his Highness and his Council to be taken."* "Thus," says Whitelock, "my fortunes and interest decreased; and now my pretended dear friends and frequent visiters withdrew themselves from me, and began neither to own nor to know me: such is the course of dirty worldlings." † He returned to the bar, and at once got into great practice; but Oliver soon made him and Widdrington Commissioners of the Treasury, with a salary of 1000l. a year. Nathaniel Fiennes, the new Lord Keeper,-placed the first in the commission, I presume, on account of his superior military rank, was the second son of Viscount Say and Seal. Having left the University, he passed a short time in the Inns of Court, but merely to finish his general education, without any view to the profession of the law. He sat for Banbury in the parliament which met in the beginning of 1640, and again in the Long Parliament, and was much in the confidence of Pym and the popular leaders. When hostilities began he had a commission given him, first to be a captain, and afterwards a colonel of horse, under the Earl of Essex, General of the parliamentary forces. Inspiring great confidence by his military ardour, he was made Governor of Bristol, but, to the great disappointment and indignation of his whole party, he surrendered that city to Prince Rupert, after a very feeble defence. He was brought to trial before a court-martial for cowardice, and condemned to death; but, by the intercession of his father, he was pardoned, and he afterwards published a justification of his conduct, which very much reinstated him in public opinion. Although not afterwards trusted with any command in the CI. R. 1623, p & a M This is but an indifferent specimen of reputlican manners, and affords a great contrast with our own times, when loss of office does not imply army, he obtained considerable influence in the House of Commons, and was a very active committee-man. He was, for a long time, a violent Presbyterian, and supporter of the Solemn League and Covenant. In consequence, he was expelled from the House by Pride's purge. But he then made a sudden wheel, — struck in with the Independents, favoured the ascendency of the army, and became a tool of Cromwell. Hence his present promotion to the Bench; and the highest civil office in the state was committed jointly to a Colonel and a Major. CHAP. LXXI. conduct of the Colonel and the Major. I do not find any particular account of the manner in Judicial which Lords Commissioners Fiennes and Lisle discharged their judicial duties, although there were loud complaints of their general incompetency. However, their appointment was sanctioned by Oliver's third parliament*, and they continued in office till his death. It may be presumed that they continued the practice of calling in the assistance of the Judges; and we must remember that the common-law bench never was better filled, the Protector not only having said that he wished to govern by "red gowns rather than red coats," but having actually appointed Hale and the most distinguished and honourable lawyers in the profession to preside in the Upper Bench, the Common Bench, and the Exchequer. The Equity business in Chancery must have had great assistance from Lenthal, who, released from his duties as Speaker On the 10th of October, 1656, there came the following message from his Highness, addressed "To Our right trusty and right well beloved Sir Thomas Widdrington, Knight, Speaker of the Parliament: "OLIVER, P. "Right trusty and well-beloved, We greet you well. It being expressed in the 34th article of the Government that the Chancellor, Keeper, or Commissioners of the Great Seal, shall be chosen by the approbation of parliament, and in the intervals of parliament by the approbation of the major part of the Council, to be after approved by the parliament, and We having before the meeting of the parliament appointed, with the approbation of the Council, Our right trusty and right well beloved Nathaniel Fiennes and John Lisle, Commissioners of the Great Seal of England, I have thought it necessary to transmit to you their names, to the end that the resolution of parliament may be known concerning their approbation, which I desire may be with such speed as the other public occasions of the Commonwealth will permit, and so I bid you heartily farewell." The required approbation was given forthwith. Serjeant Glynne was approved of the same day as Chief Justice of the Upper Bench, from which it has been erroneously supposed that he was made a Commissioner of the Great Seal. — CHAP. Political the Lords Commissioners. Sept. 17. 1657. of the House of Commons, continued Master of the Rolls, and was noted for his assiduity and ability as a Judge. The two Lords Commissioners of the Great Seal were, conduct of at all events, very active politicians, and unscrupulously exerted themselves in fulfilling all the wishes of their master. When pressed for money, and trusting to the popularity he thought he had acquired by his successes against Holland and Spain and the submissive manner in which his alliance was courted by France, he ventured to call another parliament, Colonel Fiennes and Major Lisle regulated the preliminary proceedings of the Council of State, by which, to secure a majority in spite of the unfavourable result of the elections, nearly one hundred of the members returned were pronounced disqualified and incapable of sitting, under the pretext of "immorality" or "delinquency." On the day of meeting, when the members had returned to their own House from the Painted Chamber after the Protector had harangued them, none were allowed to enter without a certificate of being "approved by his Highness's Council;" and loud complaints being made of the exclusions, Lord Commissioner Lisle put them in mind, that their first work was to choose a Speaker, and proposed Sir Thomas Widdrington, Ex-commissioner of the Great Seal (now devoted to Cromwell), as a person of great integrity and experience in relation to parliamentary business, and every way qualified for that service. Widdrington being placed in the chair, a motion was made, that the excluded members be permitted to take their places, as it was for the House to decide upon the qualifications of its members; but here Lord Commissioner Fiennes pointed out that by the "Instrument" which now regulated the constitution of the government, the Lords of the Council were to see that no papists or delinquents should be returned to serve in parliament, and asserted that this trust being vested in them, they had discharged it according to the best of their judgment. It could not be denied that such was the provision of the "Instrument;" but that the Council should decide on secret information, and without the knowledge of the constituents or representatives, was alleged to be contrary to the first principles of justice. By dint of num bers, a motion was carried, "that the House should pass to the business of the nation." * CHAP. LXXI. Act for ex Stuarts. Offer of the Crown to Under such management, an act was easily passed for excluding Charles Stuart and his family from the Crown, and cluding the the House was prepared for the motion, that the title of King should be offered to Cromwell. This motion was to have been made by Ex-commissioner Whitelock; but he quailed when the day for it arrived, and the task was devolved on Alderman Pack, one of the representatives for the city of London. The resolution being carried without difficulty, the two Lords Commissioners of the Great Seal, with Whitelock, Lenthal, Lord Broghill, and others were appointed to communicate it to his Highness, and to solicit his concurrence. The conferences lasted several days, during which, Lords Commissioners Fiennes and Lisle repeatedly addressed his Highness, and, in trying to remove his affected scruples, certainly display more legal acuteness and constitutional learning than could possibly have been expected from their military breeding. † There was no difficulty in convincing the person to whom their arguments were addressed, as the scheme was his own, and he ardently wished to accomplish it. The negotiation was prolonged in the hope of softening the opposition to it among the officers of the army who aspired to the office of Protector in their turn, - among the determined republicans, who had sworn never again to submit to hereditary rule, — and among the members of the Protector's own family, several of whom were zealous royalists, and were constantly urging him to restore the ancient family. After long hesitation, his apprehensions of insurrection or assassination pre Some time before, by way of a feeler, Jephson, during a debate in the House of Commons, had thrown out this suggestion in a random manner, and it was not ill received. When Cromwell afterwards asked him in private what could induce him to do so; "As long," said Jephson, "as I have the honour to sit in parliament, I must follow the dictates of my own conscience, whatever offence I may happen to give to your Highness." "Get thee gone," said Cromwell, giving him a friendly slap on the shoulder, "get thee gone for a inad fellow as thou art." The most eloquent speaker on this occasion was Lord Broghill, afterwards famous as Earl of Orrery, and he was ably supported by Whitelock and Lenthal. See the speeches at length in the Life of Whitelock, pp. 275-295., and an ad |