NICHOLAS, Robert (1595-1667), of the Middle Temple, London; Devizes, and Roundway, Wilts.

A pious lawyer with a record of opposition to the ecclesiastical innovations of the 1630s, from the mid-1640s Nicholas was at certain critical moments very useful to those in power at Westminster. Most notably, he was among prosecution counsel at the trial of Archbishop William Laud and later, as a judge, he proved capable of stout defence of the regime. Confident and opinionated, he could be tenacious in argument. However, his contribution to Commons business was spasmodic. Ill-health provides some explanation for this. Otherwise, apart from preoccupations with his professional career and his hobby as an antiquary, there are signs that a characteristic lawyer’s conservatism acted as a brake on participation in parliamentary reform.

Counsel, clerk and antiquary

Nicholas belonged to the senior branch of a family established as gentry at Roundway since before 1300.31VCH Wilts. vii. 191; The Gen. n.s. xii. 170; Vis. Wilts. 1623 (Harl. Soc. cv, cvi), 140–2; Wilts. N and Q iii. 505-10. By the second quarter of the seventeenth century some from junior branches enjoyed greater prosperity, including Robert Nicholas of All Cannings, who in 1631 paid composition for knighthood, and especially Sir Oliver Nicholas of Manningford Bruce, cupbearer to James I and carver to Charles I, and Edward Nicholas† of Winterborne Earls.32Wilts. N and Q i. 108; CSP Dom. 1640, p. 253; VCH Wilts. x. 115. A contemporary of the future MP both at Queen’s College and the Middle Temple, Edward benefitted from aristocratic and episcopal patronage on his way to becoming clerk of the privy council and finally, in 1641, secretary of state.33HP Commons 1604-1629; ‘Sir Edward Nicholas’, Oxford DNB. Apparently lacking such contacts in his youth, this MP’s career trajectory was more modest. Following in the footsteps of his father, in October 1629 he became a burgess of Devizes, where there was a family home.34Wilts. RO, G20/1/17, ff. 6v, 67v. A year later he became a conscientious town clerk.35Wilts. RO, G20/1/17, f. 74v; Cunnington, Devizes, pt ii. 86-7, 91, 95. Disappointed in hopes of property acquisition through his first marriage, by 1636 he was the unanticipated heir of his uncle Griffin Nicholas to land at Roundway.36VCH Wilts. viii. p. 254; Wilts. IPMs 1822, 187-9; Add. 34008, ff. 20-9; Wilts. N and Q iii. 540; Coventry Docquets, 337, 693. In the meantime it was probably he, using the profits of his practice at the bar, rather than his kinsman Robert, who was involved in at least some of the land transactions and wardship acquisitions in north Wiltshire by a man of this name.37Wilts. IPMs 1822, 66-7; Coventry Docquets, 468, 645; CSP Dom. 1638-9, pp. 186, 375; 1640, p. 253.

What was perhaps a key moment in Nicholas’s career came in February 1633 when he was defence counsel at the star chamber trial of puritan lawyer Henry Sherfield†, recorder of Salisbury, indicted for smashing a church window in the city.38W. Prynne, Canterburies Doome (1646), 103; HMC Lords, n.s. xi. 419; ‘Sherfield, Henry’, Oxford DNB. It would be incredible if Nicholas did not already share the godly sentiments of his client. From at least 1634 to at least 1642 he was a member of the vestry of St Mary, Devizes.39Wilts RO 189/2, ff. 6, 10v, 14v, 35. Like his uncle Griffin, he was a benefactor to the church and he also witnessed a charitable bequest in a nearby parish.40Wilts. N and Q iii. 541.

According to fellow Wiltshireman John Aubrey, ‘Nicholas was the greatest antiquary as to evidences that this county hath had in the memory of man’; he ‘had taken notes in his Adversaria of all the ancient deeds that came into his hands’.41Aubrey, Wilts. Top. Collections ed. Jackson, 3. Commencing as a student in 1614, he also accumulated manuscript reports of readings at the inns and of cases in king’s bench and other courts.42J.H. Baker and J.S. Ringrose, Catalogue of English Legal MSS in Cambridge Univ. Lib. (1996), pp. li-lii, 424 and passim. It seems plausible that it was Nicholas who was responsible for obtaining a new charter for Devizes in June 1639, under the terms of which he became recorder for life.43Wilts. N and Q iii. 540; Wilts RO, G20/1/17, f. 133v. A month earlier he had made a second, more financially advantageous marriage to the daughter of a knight.44Wilts. N and Q v. 387-8.

Righting the wrongs of the personal rule, 1640-2

In the spring elections of 1640, Edward Bayntun*, son and namesake of a prominent local landowner, was elected to represent Devizes with Henry Danvers I*, perhaps irresistible at that juncture on account of his family connections. It is not clear whether Danvers, another Middle Temple lawyer, stood again in the autumn, but it is conceivable that old animosities between the Bayntuns and their Danvers cousins had erupted again, or that a potentially more dynamic candidate was preferred in at a time of heightened political tension. Nicholas was returned with Bayntun junior on 23 October.45C219/43/3, no. 42.

By 3 September 1641 the corporation was sufficiently satisfied with its choice to award their recorder £40 ‘as gratuity for his great pains and expense in his long attendance at this present Parliament’, and to add another £20 at Michaelmas and at Christmas.46Cunnington, Devizes, pt. ii. 98. Yet in his first two years in the Commons Nicholas appeared only occasionally and erratically in the Journal. His first six committee nominations occurred in February and March 1641, and then there were none until 4 November and 1 December.47CJ ii. 84a, 85b, 93b, 95a, 107a, 114a, 305b, 329a. In the meantime he was omitted (for reasons unknown) from the subsidy commissioners for Westminster (6 May), made the protestation (13 May, a few days late) and on 19 July was given leave to go into the country.48CJ ii. 137a, 145a, 217a. He had a mere six nominations in 1642 (4, 5 and 23 May; 17 and 20 June; 12 Aug.), made no appearance in January, March or April and was again absent from the record from September 1642 to February 1643.49CJ ii. 557b, 558b, 583b, 630a, 634a, 716b. But this is just part of the story. Nicholas’ limited committee work seems to have engaged him actively and played to his strengths. He also had a discernible presence as a speech-maker, sometimes when he might otherwise have been deemed absent.

Nicholas doubtless owed his earliest nominations to his legal expertise, but he had already registered a (hostile) lawyer’s reaction to the role of the judges in bolstering unpopular policies of the personal rule of Charles I.50Esp. CJ ii. 85b, 93b. He twice intervened in debate to support fellow Wiltshire Member Sir Francis Seymour*, first in his criticism of Sir John Denham’s pronouncement on Ship Money (8 Dec.) and secondly to expedite proceedings against the lord keeper, John Finch†, Baron Finch (15 Dec.).51Northcote Note Bk. 43, 85. On 12 February 1641 Sir Simonds D’Ewes* heard Nicholas demonstrate that ‘the oppression of Ship Money was beyond all others’ and affirm that Sir Robert Berkeley†, judge of king’s bench (and a Middle Templar) who had opined that Ship Money was not a tax, was ‘guilty of high treason’.52Procs. LP ii. 431. The next day Berkeley was plucked from court by Black Rod and imprisoned; added on 5 May 1642 to the committee to manage the evidence at his trial, Nicholas reported on the 7th (recommending speedy examination and trial of all the judges implicated in the decision), argued at length on the 24th that Berkeley’s erroneous opinion constituted endeavour to ‘set up arbitrary government’, and was still involved in prosecuting the charge against Berkeley in May 1643.53‘Sir Robert Berkeley’, Oxford DNB; CJ ii. 558b, 562b; iii. 94b; LJ v. 81a-82a; PJ ii. 289, 291, 330. Nicholas was no less vehement in debate (17 Apr. 1641) on the impeachment of Thomas Wentworth†, 1st earl of Strafford, declaring that the lord deputy’s ‘sending of soldiers to force men to pay money both in Ireland and Yorkshire was a levying of war’ according to a statute of 25 Edward III, as was ‘his endeavour to bring in the Irish army into England’.54Procs. LP iii. 606-7. In this context it is possible to detect even an oblique attack on the king in Nicholas’s reported declaration in debate (30 June 1641) on the role of star chamber, high commission and the privy council that ‘the king proprio ore [by his own mouth] cannot imprison any man, for that an action of false imprisonment will not lie against the king’.55Procs. LP v. 424.

It is likely that Nicholas approached in no conciliatory mood his nomination (18 Mar. 1641) to the committee preparing a bill for a three-year limited grant of tonnage and poundage and considering supply for the navy.56CJ ii. 107a. Added on 2 March to the committee reviewing the disputed election at Bridport and placed on a committee to reform disorderly elections in general (30 Mar.) – both notable inclusions for a novice Member – he was probably actively engaged.57CJ ii. 95a, 114a. On 24 June he preferred a petition from William Coryton*, in which the Cornish Member defended himself against perceived misdemeanours in elections to the Short Parliament.58Procs. LP v. 313. This ultimately failed, but Nicholas was more successful in securing vindication of his own probity. On 25 May the Commons heard that one Edward Rockell had alleged that the voters of Devizes had ‘chosen a fool’ to represent them, but the words were pronounced ‘scandalous’ and Rockell was sent for as a delinquent.59Procs. LP iv. 545, 547, 551, 552.

Having returned to the Commons after an indeterminate break, in the winter of 1641-2 Nicholas did brief service relating to the security of England and Ireland. Listed second after Serjeant John Wylde* (probably a friend) on the committee entrusted with the act for raising force to defend Ireland (4 Nov. 1641), on 7 February 1642 Nicholas was appointed a reporter, with Wylde, of a conference with the Lords on the ‘bill for pressing soldiers’.60CJ ii. 305b, 419a; Procs. LP vi. 7. He was also added (1 Dec. 1641) to the committee taking examinations in the cases of conspirators Henry Wilmot* and Owen Roe O’Neill, implicated in the ‘army plot’ of the previous summer, and in the latter case also in the unfolding rebellion in Ireland.61CJ ii. 329a. That Nicholas’s interest in the province persisted is attested by the fact that on 4 June 1642 it was he who brought to the House a narrative of recent events in Ulster.62PJ iii. 20. Meanwhile, echoing Wylde among others, he also spoke on 2 February in favour of the disablement from sitting of Sir Edward Dering*, the erstwhile critic of royal ecclesiastical policy who, alarmed by the increasingly strident tone of religious controversy, had published his parliamentary speeches in an attempt to vindicate his conversion to a more ‘moderate’ position.63PJ i. 264.

Having resurfaced in May mainly in connection with the business of Judge Berkeley, on the 23rd Nicholas was nominated to the committee charged with countering the propaganda emanating from the royal court at York.64CJ ii. 583b. Over the summer he was placed on committees promoting the Militia Ordinance, considering intelligence from the port of Newcastle, and adjourning the Surrey assizes to a safer place; having promised what was probably, considering his means, a reasonably generous £20 to the parliamentary cause (10 June), he advocated a swift publication of the votes against the commission of array (21 June), but was defeated by those who wished to wait until a careful justification could be appended.65CJ ii. 630a, 634a, 716b; PJ iii. 47, 110. Most notably, at the beginning of July Nicholas delivered to Robert Devereux, 3rd earl of Essex, the ordinance entrusting him with command of the fleet for Parliament, and relayed back to the House (6 July) the letter from Warwick’s secretary which was subsequently published.66CJ ii. 650a; PJ iii. 167-8, 176-7, 179. This suggests that the lawyer had, after all, some aristocratic connections, perhaps as retained counsel. That D’Ewes remembered him being sent with messages to the Lords on 23 July tends to reinforce this.67PJ iii. 255.

War, religion and the trial of Archbishop Laud, 1642-6

Once hostilities were underway Nicholas went back to Devizes, possibly for a prolonged period since he was invisible in the Commons. On 3 February 1643 he was made a commissioner for the war effort in the county.68A. and O. According to D’Ewes he was ‘lately come from Wiltshire’ when on 24 February he recounted to Members the details of the fall of his home town to the royalists after it had been vacated by local commander Sir Edward Hungerford*. D’Ewes’ account suggests that Nicholas’s remarks were measured, but they were succeeded by apparently sharp exchanges between Hungerford’s defenders and young Bayntun, whose father Sir Edward Bayntun* was Hungerford’s bitter rival.69Harl. 164, f. 306. The feud between these two parliamentarian grandees, and the related disintegration of the war effort in north Wiltshire (not least in the wake of the defeat at Roundway Down), provides a sufficient explanation for Nicholas’ unusually sustained presence in London thereafter.

Over the 12 months until March 1644, when the military tide began to turn in the area, Nicholas was more consistently visible in the House than at any other period. A proportion of the 40 or so committee nominations he garnered drew on his expertise in drafting legislation. Among a series of appointments related to sustaining the parliamentarian armies, he chaired a committee communicating with the 2nd Baron Fairfax (Sir Ferdinando Fairfax*, 14 June), and drew ordinances for continuing weekly assessments (14 July), giving substantial powers to the earl of Essex as lord general (24 July) and affording indemnity to watermen who put themselves under the command of Sir William Waller* (12 Sept.).70CJ ii. 994b; iii. 101a, 129a, 159b, 166b, 180b, 214a, 244b, 247a, 309b, 342a, 345b, 383a Involved at various points in refining bills on sequestrations and managing related conferences with the Lords (17 Aug.), he was added to the Committee for Sequestrations early in April 1644.71CJ iii. 74b, 152b, 207a, 208a, 208b, 209a, 448a. He also worked on indemnity for tenants from assessments on their landlords and on preparing excise ordinances; twice he was delegated to convey instructions to excise commissioners (14 Sept.). These and similar matters were the subject of several messages he took to the Lords over the summer of 1643, while on 5 October he reported information from William Fiennes, 1st Viscount Saye and Sele.72CJ iii. 211a, 214b, 215b, 217a, 240a, 263a, 263b, 303a, 304a Alongside this he was occasionally named to committees dealing with security, the disposal of prisoners and (8 Mar. 1644) alleged treason; he chaired that preparing what D’Ewes considered an ‘arbitrary and indefinite’ ordinance to secure London and Westminster ‘of most dangerous consequence to the subjects of this kingdom’ (Aug. 1643).73CJ ii. 1001a; iii. 67b, 192b, 202a, 208a, 208b, 421b; Harl. 165, f. 151v. Among those deputed to devise a formula for the exercise of executive power should the House adjourn (16 Aug.), he was also a manager of a conference with the Lords against the cessation of arms in Ireland (29 Sept.).74CJ iii. 206b, 259a.

All this in itself amounted to a solid contribution to the parliamentarian cause, with signs of preparedness to implement uncompromising measures in particular circumstances. A possible indication of his loyalties at this juncture is provided by D’Ewes’ statement that it was ‘Mr Nichols an utter barrister of Middle Temple’ rather than ‘Mr Nicholl’ (Anthony Nichols*) who was mooted as a defence witness for Nathaniel Fiennes I* at his court martial in St Alban’s in December.75Harl. 165, f. 245; cf. CJ iii. 344a. Meanwhile Nicholas continued to be involved in periodic judicial matters such as the rival London and Oxford law courts and the disposition of the great seal, on which with Wylde and Edmund Prideaux I* he was manager of a conference with the Lords (20 Oct.).76CJ iii. 43b, 269a, 283a, 318a, 344b From time to time he was called on for committees dealing with private disputes or economic and social business; he prepared an East India Company ordinance (22 June, 1 July) and was added to those reviewing the Charterhouse (23 Sept.).77CJ iii. 140a, 150b, 214b, 254a, 333a, 361b, 389a.

A running thread, ever since his very first appointment on 12 February 1641 to the committee discussing the 1640 Canons, was religion.78CJ ii. 84a. On 27 May 1643 he was among lawyers entrusted with dismantling the altar rails and other liturgical accoutrements introduced lately into the Temple church and with surrendering altar plate to swell the public treasury.79CJ iii. 106b. Having taken the Covenant on 6 June, he was part of a small committee nominated later to prepare a vindication to accompany its wider imposition (19 July), while in August, in response to petitioning from the Westminster Assembly, he among those deputed to examine controversial publications, and in September he was a manager of a conference with the Lords on the suspension from the Assembly of Dr Cornelius Burges for his opposition to the Covenant.80CJ iii. 118b, 173b, 201a, 225b.

Underlying this was preparation for the trial of Archbishop Laud, which opened on 12 March 1644 and on which Nicholas had probably been engaged since being nominated to the relevant committee on 3 May 1643, if not earlier.81CJ iii. 68a. He was twice among managers of related conferences with the Lords (20 Oct. 1643; 3 Jan. 1644) and was chosen as counsel for the prosecution.82CJ iii. 283a, 357b. The demands of his brief account for his lone committee nomination and appearance in the Journal between 8 March and 17 August 1644, although he did attend the Committee for Sequestrations on at least four occasions.83CJ iii. 504b; SP20/1, ff. 131, 132, 157, 168v. According to D’Ewes ‘Nicholas the lawyer’ was also in the Commons on 14 June, when he was among the ‘violent spirits’ who ‘strongly’ (if on this occasion unsuccessfully) pressed for the impeachment of Henry Grey, 1st earl of Stamford, for surrendering Exeter to Prince Maurice.84Harl. 166, f. 73b. This is surprising given Nicholas’s professional commitments and sits oddly with any previous defence of Nathaniel Fiennes in similar circumstances, but the reported vehemence rings true.

As Laud’s trial proceeded, partly as a result of the illness of Wylde, Nicholas was responsible for delivering more than half of the prosecution’s submissions.85Prynne, Canterburies Doome, 49; Laud, Works ed. W. Scott, J. Bliss (Oxford, 1847-60), iv. 244. Taking up the baton from John Maynard* on 16 April, he recapitulated (according to his working notes) ‘what an arch-tyrant and subverter of laws and liberties’ the archbishop had proved to be as a privy councillor and a judge in temporal courts, and how he had

such a transcendent influence as obstructed and perverted the course of justice and made some of the judges ... protest in open court that they durst not do justice to them those that demanded it.

Nicholas then set out to demonstrate that Laud had ‘usurped as arbitrary [a] power in the church and ecclesiastical courts’ and was responsible for Canons ‘contrary to the laws of this realm, the rights and privileges of Parliament, the liberty and property of the subject and tending to sedition’.86SP16/499, f. 9. Prynne thought the evidence ‘excellently well pressed’ by all concerned; equally unsurprisingly, Peter Heylyn considered it overstretched.87Prynne, Canterburies Doome, 49; P. Heylyn, Cyprianus Anglicus (1668), 520. Although scornful of Nicholas’s presumption of theological knowledge, Laud himself clearly viewed him as his most formidable – and unpleasant – interrogator. ‘From Mr Nicholas’ in contrast to his colleagues ‘I had some sense, but’ (also unlike his colleagues) ‘extreme violent and foul language’, ‘such language as no Christian would give a Jew’.88Laud, Works, iv. 155, 157-8, 168, 176, 179, 195, 231, 271, 360, 364, 367; Wood, Ath. Ox. iii. 129. With a vengeful Prynne at his elbow instead of Wylde, Nicholas’s confidence grew.89Laud, Works, iv. 247, 306-7, 325 ‘Among other titles bestowed upon me, many and gross, he called me over and over again, “pander to the whore of Babylon”’, claimed Laud.90Laud, Works, iv. 308-9, 314, 335, 348. This is not evident in Nicholas’s notes, where the recurrent epithets are ‘tyrannous’, ‘arbitrary’, ‘popish’ and ‘jesuitical’, but there is ample demonstration during Nicholas’s days in court of a vehement and theologically literate opposition to anything that smacked of Catholicism and of a predictable determination to derive maximum damning effect from every available testimony.91Wood, Ath. Ox. iii. 129; SP16/499, ff. 39v-63v; HMC Lords xi. 419.

As the trial adjourned and then the defence responded, Nicholas returned to the Commons, but his involvement in court proceedings continued. He, Maynard, Wylde and other lawyers in the Commons were appointed to consider a paper on the trial sent from the Lords (14 Sept.).92CJ iii. 628a. Laud was told that Nicholas had ‘made a great noise about me in the House’ on 4 October, and that ‘no less would serve his turn but that I must be hanged’.93Laud, Works, iv. 385. Thwarted in this, if it was indeed his goal, on 6 January 1645 Nicholas finally carried to the Upper House the order for Laud’s attainder and execution, only to be deputed the next day with Bulstrode Whitelocke* and two others to justify the Commons’ refusal to assent to any change in the manner of the archbishop’s death.94CJ iv. 11a, 11b, 12b; Laud, Works, iv. 419.

Between the summers of 1644 and 1646 (during which period he had about 20 committee nominations) Nicholas was associated in several ambitious aspects of religious policy. Added to the Committee for Plundered Ministers (19 Nov. 1644), he was also named to prepare ordinances against immorality, drunkenness and blasphemy (29 Jan. 1645); to disseminate the Westminster Assembly’s Directory for Worship and abolish the Book of Common Prayer (17 Apr.); to extirpate popery and papal jurisdiction from Ireland (20 Jan. 1646); and to promote sabbath observance (20 Jan. 1646).95CJ iii. 699b; iv. 35b, 114a, 411b, 412a. On 13 March 1645, with the solicitor general, Oliver St John*, he was ordered to thank John Arrowsmith and Richard Vines for their sermons to Parliament the previous day.96CJ iv. 76b. If, as the order in which they were named implies, Nicholas’s link was particularly to Vines rather than Arrowsmith, then it provides distinct pointers to the lawyer’s piety and his milieu. At that time minister of St Clement Danes, where he numbered the earl of Essex among his parishioners, Vines had supported Burges against strict imposition of full-blown Presbyterianism, and continued to work with those who sought a settlement inclusive of godly episcopalians and non-separating Independents.97‘Richard Vines’, ‘John Arrowsmith’, Oxford DNB.

Retreat from militancy

In the meantime, Nicholas had probably enhanced his reputation in the House, impressing both religious Presbyterians and those disposed to prosecute the war vigorously. In August 1644 he, Maynard and Wylde were named with others to draw peace propositions to be put to the king, an appointment which probably testified more to an appreciation of robust preparation of the documentation rather than of a predisposition towards accommodation on soft terms.98CJ iii. 594a. Lasting acknowledgement of Nicholas’s efforts was manifest in orders of 26 October 1644 he should have the Middle Temple chamber of George Beare, confiscated for delinquency, and of 27 November 1645 that he should also be awarded Beare’s legal books and manuscripts, as it was in the separate grant of his Members’ weekly allowance despite being less often in the House.99CJ iii. 663a; iv. 217b, 356a. It perhaps explains his limited, but important, committee nominations, usually – it seems – fulfilled. One of six lawyers deputed to draft a plan for the abolition of the court of wards (14 Oct. 1644), he was named again in this connection two years later (30 Oct. 1646) and was in charge of preparing a proposition on it for despatch to the king (21/22 Oct. 1647).100CJ iii. 663a, 710a; v. 339a, 340a. He was among those deputed to refine what became the Self-Denying Ordinance (24 Mar. 1645), in his case likely to have been an indication of continuing commitment to the war party.101CJ iv. 88a. Alongside very occasional but not inconsiderable duty related to excise, fees and accounts, and after a brief period during which he had resumed attendance at the Committee for Sequestrations, he was a chairman of the committee preparing the ordinance for selling delinquents’ lands (17, 22 May 1645).102CJ iii. 402a; iv. 29b, 146b, 151b, 491a; SP20/1, ff. 258, 302v, 342, 245v, 353v, 356, 365, 377. With Edmund Prideaux I, he persuaded a reluctant Commons to accept a recommendation from the Lords that maintenance might be given to women from the Drake family ‘in respect they had lost all’ through their husbands’ allegiances (13 May).103Harl. 166, f. 209. He dealt with a few high-profile cases of individual royalists, including those of John Paulet, the Catholic 5th marquess of Winchester, following the capture of Basing House in October 1645, and Sir Hamon L’Estrange, who had hitherto escaped sequestration (2 Mar. 1646).104CJ iv. 166a, 313b, 460a. In the summer of 1645 he also took a leading part in the impeachment of the earl of Stamford for assaulting Sir Arthur Hesilrige*.105CJ iv. 152b, 159a, 162a, 179a, 215a. This time the offence was breach of privilege. Armed with this experience, Nicholas was added to the committee for privileges that autumn (16 Oct.), while he was later (7 Mar. 1646) called on to investigate another potential breach relating to leakage from the Committee of the West of discussion related to the establishment of parliamentarian forces there under the controversial Colonel Edward Massie*.106CJ iv. 311a, 467b.

By spring 1646 the war in England was almost won, but Wiltshire was one of many areas where dangerous unrest and divisions lingered. An initiative by Edward Bayntun the younger in October 1645 secured the exoneration of his father and of Nicholas from an indictment for high treason made at Salisbury by local enemies during the royalist ascendancy.107CJ iv. 323a. It was perhaps to address the task of rebuilding his local standing as well as strengthening the parliamentarian administration in the county that on 28 July 1646, after four months in which he had already been absent from the Journal, Nicholas obtained leave to go into the country.108CJ iv. 628b. There is no direct evidence of his movements, but it seems implausible, given his pre-war record and evident thoroughness, that he did not pick up the reins of his recordership. In addition, after his return to London he addressed to the Westminster committee of accounts a report on the difficulties of the Wiltshire sub-committee under Colonel Edmund Ludlowe II* (of whom he himself was one of the faithful few), extolling the importance of such employment.109CSP Dom. 1645-7, p. 491.

In the winter months of 1646-7 Nicholas put in another burst of select and characteristic activity at Westminster. In addition to further work on the court of wards, he was named three times to committees for regulating chancery (21 and 23 Oct. 1646; 13 Feb. 1647).110CJ iv. 701a, 703b; v. 87a. Three nominations related to delinquency included work on the ordinance extending the remit of the committee at Goldsmiths’ Hall (10 Dec.1646) and on the prosecution of those excepted from pardon (25 Jan. 1647).111CJ iv. 702b; v. 8b, 61b. As a member of the Committee for Plundered Ministers, he was an obvious nominee to that discussing ministers’ maintenance (11 Nov. 1646).112CJ iv. 719b.

On 15 March 1647 Nicholas again obtained leave from Parliament.113CJ v. 112a. By this time a member of the Wiltshire as well as of the Devizes commission of the peace, he was recorded as attending both the April quarter sessions in his home town and the October sessions in Marlborough.114Wilts. RO, A1/160/1, ff. 80, 94. How long he spent in London in between is unclear. He received two Commons committee nominations in May (land settlement on General Sir Thomas Fairfax*; regulation of the University of Oxford), but is invisible in listings associated with the confrontations that summer between Presbyterians and those who supported the army, and in subsequent Commons’ investigations of the ‘tumults’.115CJ v. 167a, 174a. It is possible he was maintaining a prudent distance, and like other conservative-minded lawyers reassessing his political allegiances in the light of radical agitation on the one hand, and manoeuvring by Presbyterians seeking a precipitate peace settlement on the other.

From mid-October until mid-February 1648 Nicholas was once more apparent in the Journal, garnering over the four months rather more nominations than the previous winter. Before Christmas, in addition to work on the court of wards, he received a series of appointments to do with the army, principally arrears, as well as one dealing with the troublesome Leveller officer, Colonel John Lilburne.116CJ v. 334a, 339a, 340a, 396a, 397b, 405b. On 30 October he was among Members chosen to meet with the Lords to formulate peace propositions to be sent to the king.117CJ v. 346b. Two months later, on the day after the Commons voted against further negotiations with Charles, Nicholas was among the first of many nominees to the committee to review the grievances of the people (4 Jan. 1648).118CJ v. 417a. Within a few days he was entrusted with further work on delinquents (5 Jan.), placed on committee to explore the rebuilding of towns (like Devizes) damaged in the wars (10 Jan.), and added to committees for hospitals and (again) for the regulation of Oxford University (both 6 Jan.); in the last he was specifically chosen to replace the deceased Presbyterian leader Sir Philip Stapilton*.119CJ v. 419a, 421a, 425a, 441a. He was also among lawyers ordered to expedite proceedings against various traitors and seditious persons (including Lewis Dyve) (19, 27 Jan.; 16 Feb.) and named to the committee tasked with improving the payment of tithes in London (9 Feb.).120CJ v. 437b, 446b, 460b, 465b.

None of this suggests a man discontented with the latest turn of political events. Yet it was the prelude to another unexplained absence from the Journals, which this time lasted from mid-February to the beginning of June. Wiltshire business may partly account for this: in mid-April Nicholas attended quarter sessions in Devizes.121Wilts. RO, A1/160/1, f. 108. Added to the committee for receiving military accounts on 1 June, he collected three more not inconsequential nominations (investigating insurrection in Surrey, 11 July; drafting the declaration celebrating victory over the rebels, 12 July; raising subsidies for the north, 12 Aug.) and conveyed to the preacher at the Temple the day for public thanksgiving (12 July), before he was given leave to go into the country to recover his health (21 Aug.).122CJ v. 581b, 631b, 633a, 669b, 677a. That the illness was, or had been, genuine is suggested by the fact that his absence was excused at the call of the House on 26 September.123CJ vi. 34b. All the same, it is intriguing that Nicholas chose 13 July to send a present of sack to another lawyer who was cautiously negotiating the political minefield between Presbyterian peace-makers and army sympathisers, Bulstrode Whitelocke*.124Whitelocke, Diary, 218.

Sufficiently recovered to attend sessions at Marlborough on 3 October, Nicholas was apparently back at Westminster before the end of the month, his standing high.125Wilts. RO, A1/160/1, f. 123. On the day Parliament agreed to extend the deadline for negotiation of the Treaty of Newport, he was among the lawyers deputed to reduce to bills the propositions the king had agreed and placed on a committee considering how to proffer the Covenant to him in an acceptable manner (27 Oct.).126CJ vi. 62b, 63a. Four days later a writ was issued creating Nicholas serjeant-at-law, but just as his career appeared to be flourishing, he again vanished from the record, collecting no committee nominations in the three months following 1 November, when he was named in connection with another sequestration ordinance.127CJ vi. 64b, 66a, 67a; C202/31/4. Perhaps he had grasped how hollow the treaty was likely to be. Like other prominent lawyers who displayed no obvious signs of radicalism but were promoted by Parliament in the next few years, he escaped Pride’s Purge on 6 December but was not included among die-hard Rumpers listed on the 20th.128Cf. C. Walker, Anarchia Anglicana, 48-9 (E.570.4). On the 23rd he was among several leading lawyers and others appointed to consider legal proceedings against the king and others, and he was subsequently nominated as a commissioner for the king’s trial, but there is no evidence that he ever attended the latter, and he may well have avoided the former.129CJ vi. 103a; A. and O.

It is possible that Nicholas suffered a recurrence of illness. Even if this was the case, however, there are signs that he was also, like Whitelocke, lying low. On 13 January 1649 the latter heard that, together with John Bradshaw*, the president at Charles’s trial, Nicholas had been appointed a commissioner of the great seal, but he expressed himself ‘not troubled at such discourses’, suggesting that he had received reassurances otherwise; nothing came of the rumours.130Whitelocke, Diary, 228; Wood, Ath. Oxon. iii. 130. He waited until more than two weeks after the king’s execution before taking the dissent to December’s vote to continue negotiations with him (17 Feb.), and it is probably significant that Nicholas’s sole nomination in the Commons until April was to the committee chaired by Whitelocke which was entrusted with the legislation abolishing the House of Lords (6 Feb.).131PA, Ms CJ xxxiii, p. 711; CJ vi. 132b, 144b. This small group certainly contained radicals, but like Whitelocke, Nicholas may have been motivated more by pragmatism than by ideology. His last contributions to the Rump in April and May could be regarded in the light of tidying up business already embarked on or clarifying legal confusion: committee appointments related to the sale of crown fee farm rents (3 Apr.), the jurisdiction of the marshal’s court (10 May) and provision for maimed soldiers and army widows (14 May); his report from the Committee for Sequestrations on the inheritance dispute between fellow north Wiltshire Member Sir John Danvers* and his sister Lady Gargrave (17 May).132CJ vi. 178b, 206b, 209b, 211a.

Service outside the House, 1649-1655

In the short term, a brief as counsel for the commonwealth in the trial of John Lilburne and other Leveller leaders (announced 2 May) may have absorbed Nicholas’s full attention.133CSP Dom. 1649-50, p. 121. In the longer term, for a man who had once spoken so vehemently for the independence of the judiciary, his appointment on 1 June 1649 as a judge of upper bench provided an occasion to withdraw from the House.134CJ vi. 222a. On the 13th he also resigned his offices as justice of the peace, recorder and burgess of Devizes, although he remained on the commission of the peace for Wiltshire.135Wilts. RO, 765/8. Over the next eight years he rode at least 14 circuits, predominantly in Oxford and the west.136J.S. Cockburn, A Hist. of English Assizes (1972), 273-4. He was also made a commissioner under the act of April 1650 for establishing a high court of justice and in 1654 a baron of the exchequer.137CJ vi. 391b, 392a; Baker, Serjeants at Law, 528. On the sympathetic testimony of Whitelocke, he made a determined attempt to justify the actions of the government to local populations who sometimes gave him and his colleagues a hostile reception.138Whitelocke, Mems. iii. 167, 171, 227, 294; Cockburn, Hist. of English Assizes, 244. Even Wood managed to convey a certain effectiveness when he observed that as judges on the western circuit, Nicholas and Henry Rolle*

in their charges given at several places ... vindicated the proceeding of the parliament and of theirs and the people’s power, and the original of it, and endeavoured to settle their minds as to the then present government without king or lords.139Wood, Ath. Oxon. iii. 130.

Rolle’s and Nicholas’s reports to the Commons in August 1650 certainly gave an impression that careful sifting of evidence lay behind their mitigation of the severity of previous parliamentary orders regarding malefactors in Wiltshire and Somerset, particularly those indicted for confrontation with soldiers.140CJ vi. 456.

Benefactions by Nicholas to the poor of Devizes in 1650 and 1652 presumably sustained his hold on the loyalty of some and enhanced his authority when he next came on circuit.141Wilts. N and Q iii. 542. Yet when Penruddock’s rebels took Salisbury in March 1655 and captured the assize judges and the sheriff, Nicholas, Rolle and John Dove* seem to have been momentarily in danger of their lives.142Clarendon, Hist. v. 413-18; Cockburn, Hist. of English Assizes, 274, 284; CSP Dom. 1655, pp. 187, 604; Wilts. N and Q iii. 542. The threat to the judges may have been symbolic or incidental, however, and personal animosity focussed on Dove.143W.W. Ravenhill, ‘Records of the rising in the West’, Wilts. Arch. Mag. xiii. 119-88; s.v. ‘John Dove’. Nicholas stayed on into April as the leading Wiltshire insurgents were indicted, although as an interested party he was spared taking charge of proceedings, his ‘lips being tied fast as his condition stood’.144TSP iii. 361, 365, 371, 372, 376, 378.

Re-engagements at Westminster, 1656-60

It was surely as a government nominee that Nicholas was elected to sit for Breconshire in 1656. There is no evidence of his participation in proceedings. He had no discernible connection with Wales, although his connections with the west of England may be greater than meet the eye. At some point, perhaps when on circuit or perhaps through fellow Middle Templar William Sheppard, writer on law and Gloucestershire committeeman, Nicholas developed a regard for the authorities of godly Gloucester sufficient to prompt his donation to its library of some 900 folios of manuscript law reports, several runs of newsbooks (revealing a reader well-informed of current affairs from different perspectives) and numerous books. That Richard Baxter’s The Saints Everlasting Rest (3rd edn. 1652) was among them may provide some further indication that Nicholas’s religious preferences were of a non-sectarian Protestant variety.145S.M. Eward, Catalogue of Gloucester Cathedral Lib. (1972), 7; Gloucester Cathedral Lib. ‘Book of Donors’, p. 8; draft library catalogue.

His toleration, if that is what it was, had its limits. On subsequent circuits Nicholas came under fire for harshness in some of his judgements, especially towards Quakers.146CSP Dom. 1655, p. 97-8, 106, 115; 1657-8, p. 156; 1658-9, pp. 159, 169; Add. 38856, ff. 734; Cockburn, Hist. of English Assizes, 274; G. Benson, The cry of the oppressed from under their oppressions (1656), 40. On the other hand, it was reported that on 2 October 1658 he and Judge Richard Wyndham ‘were questioned before the council, for seditiously declaring in some of their charges that unless ministers would administer the sacrament the people were not bound to pay them tithes’. Since this both undermined ministerial right to control access to communion and put conditions on parochial obligation to fund the clergy, the informant could plausibly claim that the judges ‘were both put out of the commission’, but this may have been a mistake: the death of the protector had theoretically voided their appointments anyway.147Clarke Pprs. iii. 164–5. Whitelocke, who should have known, noted on 27 November that Serjeants Windham and Nicholas, his ‘friends, were made judges’ by Protector Richard.148Whitelocke, Diary, 501. However, by the spring political turbulence had bred confusion around the renewal of judges’ patents; while some were apparently formally dismissed for refusing to take the oath, the eventual cancellation of all assizes undermined the whole process.149Cockburn, Hist. of English Assizes, 245, 274, 284; CSP Dom. 1658-9, pp. 281, 367, 375; 1659-60, pp. 2, 18.

It was variously as ‘serjeant’ and ‘baron’ that Nicholas was named a commissioner of oyer and terminer for London and Middlesex on 18 May 1659 and around this time took his seat in the restored Rump.150CJ vii. 657b; A Catalogue of the Names of this Present Parliament, interrupted April 19. 1653 (1659). A sign of the prevailing uncertainty was that one of his three committee nominations that month was to review that legislation which had been passed since the Rump’s dissolution in 1653 and provide an opinion on whether it should be renewed (21 May).151CJ vii. 658b, 661b, 663a. On 16 June ‘Justice Nicholas’ was among those resolved to be going on the next circuit and on the 20th was he placed on a committee to devise an oath to be administered to judges and others, but nothing came of it.152CJ vii. 686b, 687b, 689b. It appears that soon after he absented himself: following a call of the much-depleted House on 30 September he was fined £20.153CJ vii. 790a.

Encouraged perhaps by the prospect of a more secure settlement, Nicholas promptly reappeared when the Rump re-assembled at the end of December. Within the first fortnight he received four committee nominations: two of them related to delinquents’ lands (28 Dec.; 9 Jan. 1660); two addressed the politically-sensitive questions of the qualifications to be demanded of those who might be elected to replace deceased Members (3 Jan.) and of potential illegality in the record of the April 1653 dissolution (7 Jan.).154CJ vii. 798b, 803a, 805a, 805b. On 18 January, when it was announced his commission as a baron of the exchequer (like that of his old friend Wylde) was confirmed as still in force, he was once again appointed a judge of upper bench.155CJ vii. 814b; Whitelocke, Diary, 562. But not for the first time, just as it seemed Nicholas’s parliamentary career was resurrected, it was abruptly terminated. He had had his last nominations. Excused attendance by reason of ill-health on 1 March, he never sat in Parliament again.156CJ vii. 857b.

Retirement

The Restoration deprived Nicholas again of his appointments. Pardoned in September, he was none the less vulnerable to attack from those seeking redress for unfavourable legal decisions during the commonwealth and protectorate.157CSP Dom. 1660-1, p. 283; LJ xi. 207a. He retired first to Devizes castle and then, by early 1663, to Seend, a village to the east of the town where he was active in the vestry.158Add. 34008, f. 40; Cunnington, Devizes, pt. ii. 132; Wilts. N and Q i. 321; iii. 543-4. Even here he did not escape calumny. In 1664 two local men deponed that they had heard ‘in discourse’ that the former judge

in a bragging and boasting way did glory that he was the man that drew up the charge against his late Majesty; and being reproved thereof, said that if it were to do again he would do same, for that his Majesty was of the Norman race and unfit to reign.159Wilts. N and Q iii. 544; ii. 478–9.

But this is hardly consistent with the man who did not participate in the king’s trial and earned the respect of John Aubrey.

In his will of May 1667 Nicholas declared that he was ‘fully assured’ by God’s mercy of obtaining forgiveness of sins and everlasting life. He left all his lands in Wiltshire to his daughters Mary Nicholas and Anne Hulbert, with a £50 annuity to his wife and many small bequests to kin.160PROB11/329/131. Following his death on 20 December, an inventory was taken which reveals (despite its incompleteness) greater than expected wealth and £216 worth of books and manuscripts.161Add. Roll 37593. Nicholas had given some books to the Middle Temple in 1658 and had possibly already made his donation to Gloucester; by means unknown about 25 volumes of manuscript law reports made their way to Cambridge University, but that appears to leave a quite substantial collection subsequently unaccounted for.162MTR iii. 1122; Baker, Ringrose, Catalogue of English Legal Mss in Cambridge Univ. Lib. pp. li-lii Nicholas’s sons had probably all predeceased him, and it was left to representatives of the junior branch of the family to sit in Parliament.163HP Commons 1660-1690.