greatly to curtail the prerogatives of the crown, he opposed the resolution brought forward, when the King was a prisoner in the Isle of Wight, against holding any farther communication with him,-the tendency of which was the establishment of a republic. He urged "that by this resolution of making no more addresses to the King, they did, as far as in them lay, dissolve the parliament; and that from the time of that determination he knew not. with what security, in point of law, they could meet together, or any join with them in their counsels; that it was of the essence of parliament that they should upon all occasions repair to the King, and that his Majesty's refusal at any time to receive their petitions, or to admit their addresses, had been always held the highest breach of their privilege, because it tended to their dissolution without dissolving them; and therefore if they should now, on their parts, determine that they would receive no more messages from him, nor make any more address to him, they did upon the matter declare that they were no longer a parliament, and then how could the people look upon them as such ?* The resolution, however, was carried by a large majority, the influence of the presbyterians in the House having very much declined. To intimidate Maynard from repeating any such effort, articles of impeachment were soon after framed against him, accusing him of high treason, and were sent up to the [FEB. 1, 1648.] Lords. The pretext for this prosecution was a tumult which had taken place in the month of July preceding, when a band of apprentices had marched from the City of London to Westminster, with a view to induce parliament to revoke certain ordinances respecting the city militia, which had been passed at the instance of Cromwell and the army. It was alleged that the defendant had incited and encouraged this insurrection, and that it amounted to high treason as a "levying of war against the parliament." Maynard being brought to the bar of the House of Lords in custody of the lieutenant of the Tower, to plead to these articles, he positively refused to do so, saying, with unanswerable reason, "that he being a commoner of England, and a free-born subject, ought to be tried as a commoner by bill or indictment in the inferior courts of justice." He likewise refused to kneel when required so to do, observing sarcastically that "he did admire the justice of the Council Table (against which they had made such complaints,) in regard of the arbitrary proceedings against him in what was called a Parliament." The Lords imposed a fine of 5007. upon him for his contumacy, and committed him to prison during pleasure. However, upon a secret understanding that he was to be quiet for the future, the impeachment was dropped, and he was soon after restored to liberty. He remained very quiet for several years, keeping aloof from politics,§ * Clarendon, iii. 142. 3 Parl. Hist. 831. † 3 Parl. Hist. 839. ‡ Ib. 845. § It has been recently said that Maynard strongly opposed the Ordinance for the trial of Charles I., and that he entered a protest against that proceeding; but till the Protectorate being established he thought, like Hale, Rolle, and other great lawyers, that it was the part of a good citizen [A. D. 1653.] to submit to the existing government, however much he might condemn the hypocrisy and ambition of the man who was at the head of it. He accordingly consented to take the degree of the coif under a writ in the name of OLIVER, and he actually became a "Protector's Serjeant," whereby he was placed at the head of the bar.* When the Crown was offered to Oliver, Maynard, as a lover of monarchy, joined Whitelocke, Glyn, and St. John [MARCH, 1657.] in strongly advising him to accept it, urging "that no new government could be settled legally but by a king; till then, all they did was like building upon sand, and every man that had been concerned in the war and in the blood that was shed,-above all, the King's, was still obnoxious to punishment, and no warrants could be pleaded but what were founded on, or approved of by, a law passed by King, Lords, and Commons; and as no man's person was safe till that was done, so they said all the grants and sales that had been made were null and void, all men that had gathered or disposed of the public money were for ever accountable. So, on public grounds, monarchy was the form of government suitable to all our institutions, and to the genius of the people, and the title of King, with defined prerogatives, was more favourable to liberty than that of Protector, who was often driven to do arbitrary acts from the novelty of his dominion." But he was answered by the fanatics, who said "this was a mistrusting of God and a trusting to the arm of flesh: they had gone out in the simplicity of their hearts to fight the Lord's battles, to whom they had made the appeal; he had heard them, and appeared for them, and now they could trust him no longer; they had pulled down monarchy with the monarch, and would they now build that up which they had destroyed? they had solemnly vowed to be true to the Commonwealth without a king or kingship, and under that vow, as under a banner, they had fought and conquered; would they go back to Egypt? if kings were invaders of God's right, and usurpers upon men's liberties, why must they have recourse to such a wicked engine?" These arguments, fortified by there is no contemporary evidence of his having taken any part in the discussion. It is exceedingly improbable that he should have done an act for which he never could have been forgiven, as it was the policy of his life "so to live with his enemies that he might be reconciled to them as friends," and he was accused of pleading "as if he had taken fees on both sides; one while magnifying the gallant deeds of the army, then firking them for their remonstrance." See Chalmers› Biography, "Maynard." * "In 1653, Oliver Protector, Maynard was, by writ dated February 1, called to the degree of Serjeant at law, having before taken the engagement; and, on May 1st, was by patent made the Protector's Serjeant, and pleaded in his and the then Commonwealth's behalf against several Royalists that were tried in the pretended high court of parliament, whereon several generous cavaliers and noble hearts received the dismal sentence of death." Anthony Wood. "Res dura et regni novitas me talia cogunt." ‡ 1 Burnet, 94. It is curious to consider what would have been the effect if private threats of assassination, prevailed, and the name of OLIVER I. is not inscribed in the list of English sovereigns, although his statue is very properly to appear in the new Palace at Westminster, among our distinguished generals and statesmen. Maynard continued to practise at the bar with his usual assiduity. Notwithstanding his dignity of "Protector's Ser jeant," he did not long conduct the government [A. D. 1657, 1658.] prosecutions, and he sometimes was counsel for those who were illegally proceeded against by his Highness's Attorney General. He gave a written opinion in favour of Lilburne, which the defendant read to the jury; and which greatly contributed to his acquittal.* Afterwards, when Cony had been imprisoned for refusing to pay a tax imposed without authority of parliament, Serjeant Maynard moved the Court of Upper Bench for a habeas corpus in his favour, and "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, not being able to maintain or defend either, pretty plainly declared what their sentence would be, and thereupon the Protector's Attorney required a farther 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 Highness's authority.† But I am sorry to say that Maynard again showed that he had no taste for being a martyr. When he and Serjeant Twisden and Mr. Wadham Wyndham, who had been imprisoned along with him for the same cause, had lain three or four days in custody, "they unworthily petitioned to be set at liberty, acknowledging their fault, and promising to do so no more, choosing rather to sacrifice the cause of their client, whereon that of their country was eminently concerned, than to endure a little restraint with the loss of a few fees.‡ he had accepted the offer, and after being proclaimed King he had lived long enough to assemble a parliament which had passed an act ratifying all that had been theretofore done, and pardoning all past offences. His Majesty, King Oliver, would probably have soon been assassinated or dethroned; but there is great difficulty in seeing how those who sentenced Charles I. to death could have afterwards been brought to trial. * 5 St. Tr. 348, 443. The defendant had earnestly prayed for future time "in regard the counsel assigned him refused to appear for him, only Serjeant Maynard who was sick." This sickness was suspected to have been brought on by a dread of the Tower. † 5 St. Tr. 935. 3 Clarendon, Hist. Reb. 985. The noble historian adds: "The Judges were sent for, and severely reprehended for suffering that license. When they with all humility mentioned the law and MAGNA CHARTA, Cromwell told them, with terms of contempt and derision, Their MAGNA F should not control 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 dismissed them with a caution that they should not suffer the lawyers to prate what it would not become them to hear." Notwithstanding this coarse and violent ebullition, it should be recollected that "in all matters which did not concern the life of his jurisdiction he seemed to have great concern for the law," and that, pressing the Judges to act under him, he said "he would rather rule by red gowns than by red coats." 5 St. Tr. 936. He was soon again on good terms with the Protector, and might have been one of his Peers, but he wisely would not [A. D. 1658, 1659.] accept any promotion which would take him from the practice of his profession; and while parliaments sat under Oliver, he continued a member of the House of Commons as representative for Newton, and afterwards for Beralstone. He is recorded as having entered a solemn protest against two evils which have continued to visit subsequent parliaments-"excessive legislation, and long speeches." "A parliament," said he, "hath passed more laws in one month, than the best student in England can read in a year, and well if he can understand them then. We had a speech to-day (Sir Arthur Haslerig's,) which lasted from nine to twelve: if you go on at this rate to have one speech a day, the Dutch will give you 2000l. a day to do so. On Oliver's demise, Maynard immediately swore allegiance to his successor, and had his patent renewed, as "Protector's Prime Serjeant." But in consequence of the proved incapacity of Richard, and the confusion which followed, the Presbyterians resolved to recall Charles II., trusting to the comprehension promised them privately by Hyde, and by the King's public declaration from Breda,-and Maynard, as one of their leaders, took an active part in the measures devised for supporting Monk's movement to crush the Commonwealth. He was a member of the Council of State, in whom the executive government was for some time vested,† and he took his seat once more as representative for Totness on the restoration of the Rump. Being returned for Beralstone to the “Convention Parliament," he was very useful in repressing the republican spirit, which still showed itself in considerable strength.‡ Charles, on his arrival at Whitehall, very cordially received the Serjeant, now well stricken in years, and little expecting to [A. D. 1660.] live to sit in another" Convention Parliament," or to see the expulsion of the dynasty now so enthusiastically supported. He submitted to the ceremony of again taking the coif under a royal writ, which treated his former serjeantcy as a nullity;-and, to reward his loyalty, he was made a King's Serjeant, and received the honour of knighthood.§ Sir John was likewise offered the situation of a puisne judge, but he preferred his lucrative practice at the bar. Now comes the most discreditable part of his career. Along with Serjeant Glyn, who had acted as the Protector's Chief A. D. 1661.] Justice, he appeared at Westminster among the Crown lawyers to sustain the prosecution of Sir Harry Vane for high treason, -the only overt act being that he (like the two serjeants) had acted under the authority of the Commonwealth:—an instance of tergiversation which even shocked the warmest royalists, and which is thus held up to scorn by Butler: * Burton's Diary. Our only consolation is to read of an American legislator being "five days in possession of the floor." † Martyn's Life of Shaftesbury, i. 231. 4 Parl. Hist. i. 164. § Dugd. Or. Jur. 115. "Did not the learned Glyn and Maynard, To make good subjects traitors, strain hard?”* Maynard, however, strenuously resisted the measures introduced by Clarendon, by which faith was broken with the Presbyterians. Though baffled in the unequal contest, he showed great moderation on the fall of their capital enemy, by contending that [A. D. 1667.] none of the offences charged against him amounted to high treason. "No man," said he, "can do what is just, but he must have what is true before him; where life is concerned, you ought to have a moral certainty of the thing, and every one be able to say, upon this proof, in my conscience, this man is guilty. Common fame is no ground to accuse a man where matter of fact is not clear. To say an evil is done, therefore this man hath done it, is strange in morality, more strange in logic."+ He was now counsel for the Crown in all government prosecutions:‡ but though he had precedence of the Attorney and Solicitor General, he did not take a prominent part in any case which occurred, till Lord Shaftesbury was brought up before the Court of King's Bench on a habeas corpus, having been committed to the Tower by the House of Lords for contending that the parliament was dissolved. The question now arose for the first time, "whether a warrant of commitment by either House of Parliament must be framed with the same strictness as a warrant of commitment by an inferior tribunal," the warrant merely ordering the defendant to be "imprisoned during pleasure, for high contempts committed against this House." Objection was taken "that the cause of commitment returned was not sufficient, for the general allegation of high contempts is too uncertain, as the Court cannot judge of the contempt if it doth not appear in what act it consists." But Maynard argued that the House of Lords was a branch of the legislature and the Supreme Court of the realm, and that its resolutions on its own privileges could not be adjudicated upon by inferior tribunals, whose judgments it was entitled to review. He admitted, that "if the commitment had been by a magistrate, or by the Common Pleas, or Exchequer, it could not have been supported; but it was by a Court not under the control of the Court desired to quash it, and whether the contempts should be specified, was a matter within the deliberation of that Court, not of this; that when a question of privilege incidentally arises in a * Pepys' Diary likewise shows the public scandal excited by the two republican Serjeants become royalists. He thus concludes his account of the coronation: "Thus did the day end with joy every where, and, blessed be God, I have not heard of any mischance to any body through it all, but only to Serjeant Glynne, whose horse fell upon him yesterday, and is like to kill him, which people do please themselves to see how just God is to punish the rogue at such a time as this, being now one of the King's Serjeants, and rode in the cavalcade with MAYNARD, to whom people wish the same fortune." † 4 Parl. Hist. 572, 577. See Rex v. Tonge and others for high treason, 6 St. Tr. 232. Lord Morley's Trial, ib. 776, Lord Mordaunt's Trial, ib. 796. § Ante, Vol. III. Chap. LXXXVIII. |