In what we have said of him as a lawyer we are sure that in every essential respect we have not overstated or misstated his powers and characteristics as they were known and conceded by lawyers and judges in Massachusetts. We have confined ourselves mainly to his jury-trials, because into them he threw the whole force and vitality of his nature, and because we could thus more completely indicate the variety of his accomplishments and the essential characteristics of his genius and individuality. A knowledge of them is indispensable to a just estimate of the man, and it must die with him and his hearers, excepting only as it may be preserved by contemporaneous written criticism and judgment, and by indeterminate and shadowy tradition.
The labors of so great a lawyer are as much more useful as they are less conspicuous than those of any prominent politician or legislator, unless he be one of the very few who have high constructive or creative ability. There is little risk of overestimating the value of a life devoted to mastering that complex system of jurisprudence, the old, ever-expanding, and ever-improving common law which is interwoven with our whole fabric of government, property, and personal rights, and to applying it profoundly through trial by jury and before courts of law, not merely that justice may be obtained for clients, but that decisions shall be made determining the rights and duties of men for generations to come. And when such a life is not only full of immense work and achievement, but is penetrated and informed with genius, sensibility, and loving-kindness, it passes sweetly and untraceably, but influentially and immortally, into the life of the nation.
[THE REGICIDE COLONELS IN NEW ENGLAND]
Before the restoration of Charles the Second, in 1660, to the throne of his ancestors, he had issued a "Declaration," promising to all persons but such as should be excepted by Parliament a pardon of offences committed during the late disorderly times. In the Parliamentary Act of Indemnity which followed, such as had been directly concerned in the death of the late King were excepted from mercy. Colonel Whalley and Colonel Goffe were members of the High Court of Justice which convicted and sentenced him. It was known that they had fled from England; and one Captain Breedon, lately returned from Boston, reported that he had seen them there. The Ministry sent an order to Endicott, the Governor of Massachusetts, for their apprehension and transportation to England.
The friendly welcome which had in fact been extended to the distinguished fugitives cannot be confidently interpreted as an indication of favorable judgment of the act by which their lives were now endangered. No one of the New- England Colonies had formally expressed approval of the execution of King Charles the First, nor is there any other evidence of its having been generally regarded by them with favor. It is likely that in New England, as in the parent country, the opinions of patriotic men were divided in respect to the character of that measure. In New England, remote as it was from the scene of those crimes which had provoked so extreme a proceeding, it may be presumed that there was greater difficulty in admitting the force of the reasons, by which it was vindicated. And the sympathy of New England would be more likely to be with Vane, who condemned it, than with Cromwell. But the strangers, however one act of theirs might be regarded, had been eminent among those who had fought for the rights of Englishmen, and they brought introductions from men venerated and beloved by the people among whom a refuge was sought.
Edward Whalley, a younger son of a good family, first cousin of the Protector Oliver, and of John Hampden, distinguished himself at the Battle of Naseby as an officer of cavalry, and was presently promoted by Parliament to the command of a regiment. He commanded at the storm of Banbury, and at the first capture of Worcester. He was intrusted with the custody of the King's person at Hampton Court; he sat in the High Court of Justice at the trial of Charles, and was one of the signers of the death-warrant. After the Battle of Dunbar, at which he again won renown, Cromwell left him in Scotland in command of four regiments of horse. He was one of the Major-Generals among whom the kingdom was parcelled out by one of the Protector's last arrangements, and as such governed the Counties of Lincoln, Nottingham, Derby, Warwick, and Leicester. He sat as a member for Nottinghamshire in Cromwell's Second and Third Parliaments, and was called up to "the other House" when that body was constituted.
William Goffe, son of a Puritan clergyman in Sussex, was a member of Parliament, and a colonel of infantry soon after the breaking out of the Civil War. He married a daughter of Whalley. Like his father-in-law, he was a member of the High Court of Justice for the King's trial, a signer of the warrant for his execution, a member of the Protector's Third and Fourth Parliaments, and then a member of "the other House." He commanded Cromwell's regiment at the Battle of Dunbar, and rendered service particularly acceptable to him in the second expurgation of Parliament. As one of the ten Major-Generals, he held the government of Hampshire, Berkshire, and Sussex.
When Whalley and Goffe, upon the King's return, left England to escape what they apprehended might prove the fate of regicides, the policy of the Court in respect to persons circumstanced as they were had not been promulgated. Arriving in Boston, in July, and having been courteously welcomed by the Governor, they proceeded the same day to Cambridge, which place for the present they made their home. For several months they appeared there freely in public. They attended the public religious meetings, and others held at private houses, at which latter they prayed, and prophesied, or preached. They visited some of the principal towns in the neighborhood, were often in Boston, and were received, wherever they went, with distinguished attention.
At the end of four months, intelligence came to Massachusetts of the Act of Indemnity, and that Whalley and Goffe were among those excepted from it, and marked for vengeance. Three months longer they lived at Cambridge unmolested; but in the mean while affairs had been growing critical between Massachusetts and the mother country, and, though some members of the General Court assured them of protection, others thought it more prudent that they should have a hint to provide for their safety in some way which would not imply an affront to the royal government on the part of the Colony. The Governor called a Court of Assistants, in February, and without secrecy asked their advice respecting his obligation to secure the refugees. The Court refused to recommend that measure, and four days more passed, at the end of which time--whether induced by the persuasion of others, or by their own conviction of the impropriety of involving their generous hosts in further embarrassment, or simply because they had been awaiting till then the completion of arrangements for their reception at New Haven--they set off for that place.