Sir Matthew Hale

Lord Chief Justice Of England

"Old England's Worthies,
Being Full And Original Biographies Of The Most Eminent Statesmen, Lawyers, Warriors, Men Of Letters And Science, And Artists Of Our Country
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Published c1862, London,
James Sangster and Company, Paternoster Row, E.C.

Sir M. Hale

Matthew Hale was born on the 1st of November, 1609, at Alderley, a small village located in Gloucestershire, about 2 miles from Wotton-under-Edge. His father, Robert Hale, was a barrister of Lincoln's Inn, and his mother, whose maiden name was Poyntz, belonged to an ancient and respectable family which had resided for several generations at Iron Acton. Hale's father is represented to have been a man of such scrupulous delicacy of conscience, that he abandoned his profession, because he thought that some things, of ordinary practice in the law, were inconsistent with that literal and precise observance of truth which he conceived to be the duty of a Christian. "He gave over his practice," says Burnet, in his Life of Hale, "because he could not understand the reason of giving colour in pleadings, which, as he thought, was to tell a lie."

Hale had the misfortune to lose both his parents very early in life, his mother dying before he was three years old, and his father before he had attained his fifth year. Under the direction of his father's will, he was committed to the care of a near relation, Anthony Kingscote, Esq., of Kingscote, in Gloucestershire. This gentleman, being inclined to the religious doctrines and discipline of the Puritans, placed him in a school belonging to that party; and, intending to educate him for a clergyman, entered him in 1626 at Magdalen Hall in Oxford. The strictness and formality of his early education seem to have inclined him to run into the opposite extreme at the university, where he became to a certain extent his own master. He is said to have been very fond at this time of theatrical amusements, and of fencing, and other martial exercises; and giving up the design of becoming a divine, he at one time determined to pass over into the Netherlands, and to enlist as a volunteer in the army of the Prince of Orange. An accidental circumstance diverted him from this resolution. He became involved in a lawsuit with a gentleman in Gloucestershire, who laid claim to part of his paternal estate; and his guardian, being a man of retired habits, was unwilling to undertake the task of personally superintending the proceedings on his behalf. It became necessary therefore that Hale, though then only twenty years old, should leave the university and repair to London for the purpose of arranging his defence. His professional adviser on this occasion was Serjeant Glanville, a learned and distinguished lawyer; who, being struck by the clearness of his young client's understanding, and by his peculiar aptitude of mind for the study of the law, prevailed upon him to abandon his military project, and to enter himself at one of the Inns of Court with the view of being called to the bar. He accordingly became a member of the society of Lincoln's Inn in Michaelmas term 1629, and immediately applied himself with unusual assiduity to professional studies. At this period of his life, he is said to have read for several years at the rate of sixteen hours a day.

During his residence as a student in Lincoln's Inn, an incident occurred which recalled a certain seriousness of demeanour, for which he had been remarkable as a boy, and gave birth to that profound piety which in after-life was a marked feature in his character. Being engaged with several other young students at a tavern in the neighbourhood of London, one of his companions drank to such excess that he fell suddenly from his chair in a kind of fit, and for some time seemed to be dead. After assisting the rest of the party to restore the young man to his senses, in which they at length succeeded, though he still remained in a state of great danger, Hale, who was deeply impressed with the circumstance, retired into another room, and falling upon his knees prayed earnestly to God that his friend's life might be spared; and solemnly vowed that he would never again be a party to similar excess, nor encourage in temperance by drinking a health again as long as he lived. His companion recovered, and to the end of life Hale scrupulously kept his vow. This was afterwards a source of much inconvenience to him, when the reign of licentiousness commenced, upon the restoration of Charles II.; and drinking the King's health to intoxication was considered as one of the tests of loyalty in politics, and of orthodoxy in religion. His rapid proficiency in legal studies not only justified and confirmed the good opinion which had been formed of him by his early friend and patron, Serjeant Glanville, but also introduced him to the favourable notice of several of the most distinguished lawyers of that day. Noy, the Attorney-General, who some years afterwards devised the odious scheme of ship-money, and who, while he is called by Lord Clarendon "a morose and proud man," is also represented by him as an "able and learned lawyer," took particular notice of Hale, and advised and assisted him in his studies. At this time also he became intimate with Selden, who, though much older than himself, honoured him with his patronage and friendship. He was induced by the advice and example of this great man to extend his reading beyond the contracted sphere of his professional studies, to enlarge and strengthen his reasoning powers by philosophical inquiries, and to store his mind with a variety of general knowledge. The variety of his pursuits at this period of life was remarkable: anatomy, physiology, and divinity formed part only of his extensive course of reading; and by his subsequent writings it is made manifest that his knowledge of these subjects was by no means superficial.

The exact period at which Hale was called to the bar is not given by any of his biographers; and in consequence of the non-arrangement of the earlier records at Lincoln's Inn, it cannot be readily ascertained. It is probable, however, that he commenced the actual practice of his profession about the year 1636. It is plain that he very soon attained considerable reputation in it, from his having been employed in most of the celebrated trials arising out of the troubles consequent on the meeting of parliament in 1640. His prudence and political moderation, together with his great legal and constitutional knowledge, pointed him out as a valuable advocate for such of the court party as were brought to public trial. Bishop Burnet says that he was assigned as counsel for Lord Strafford, in 1640. This does not appear from the reports of that trial, nor is it on record that he was expressly assigned as Strafford's counsel by the House of Lords: but he may have been privately retained by that nobleman to assist in preparing his defence. In 1643, however, he was expressly appointed by both Houses of Parliament as counsel for Archbishop Laud: and the argument of Mr. Herne, the senior counsel, an elaborate and lucid piece of legal reasoning, is said, but on no certain authority, to have been drawn up by Hale. In 1647 he was appointed one of the counsel for the Eleven members: and he is said to have been afterwards retained for the defence of Charles I. in the High Court of Justice; but as the King refused to own the jurisdiction of the tribunal, his counsel took no public part in the proceedings. He was also retained after the King's death by the Duke of Hamilton, when brought to trial for treason, in taking up arms against the parliament. Burnet mentions other instances, but these are enough to prove his high reputation for fidelity and courage, as well as learning.

In the year 1643 Hale took the Covenant as prescribed by the parliament, and appeared more than once with other laymen in the assembly of divines. In 1651 he took the "Engagement to be faithful and true to the Commonwealth without a King and House of Lords," which, as Mr. Justice Foster observes, "in the sense of those who imposed it, was plainly an engagement for abolishing kingly government, or at least for supporting the abolition of it." In consequence of his compliance in this respect, he was allowed to practice at the bar, and was shortly afterwards appointed a member of the commission for considering of the reformation of the law. The precise part taken by Hale in the deliberations of that body cannot now be ascertained; and indeed there are no records of the mode in which they conducted their inquiries, and, with a few exceptions, no details of the specific measures of reform introduced by them. A comparison, however, of the machinery of the courts of justice during the reign of Charles I., and their practice and general conduct during the Commonwealth, and immediately after the Restoration, will afford convincing proofs that, during the interregnum improvements of great importance were effected, - improvements which must have been devised, matured, and carried into execution by minds of no common wisdom, devoted to the subject with extraordinary industry and reflection. It was unquestionably with the view of restoring a respect for the administration of justice, which had been wholly lost during the reign of Charles I., and giving popularity and moral strength to his own government, that Cromwell determined to place such men as Hale on the benches of the different courts. Hale, however, had at first many scruples concerning the propriety of acting under a commission from an usurper; and it was not without much hesitation, that he at length yielded to the importunity of Cromwell, and the urgent advice and entreaties of his friends; who, thinking it was no small security to the nation to have a man of his integrity and high character on the bench, spared no pains to satisfy his conscientious scruples. He was made a serjeant, and raised to the bench of the Court of Common Pleas in January, 1653-4.

Soon after he became a judge he was returned to Cromwell's first parliament of five months, as one of the knights of the shire for the county of Gloucester; but he does not appear to have taken a very active part in the proceedings of that assembly. Burnet says that "he, with a great many others, came to parliaments, more out of a design to hinder mischief than to do much good." On one occasion, however, he did a service to his country, for which all subsequent generations have reason to be grateful, by opposing the proposition of a party of frantic enthusiasts to destroy the records in the Tower and other depositories, as remnants of feudality and barbarism. Hale displayed the folly, in justice, and mischief of this proposition with such authority and clearness of argument, that he carried the opinions of all reasonable members with him; and in the end those who had introduced the measure were well satisfied to withdraw it. That his political opinions at this time were not republican, is evident from a motion introduced by him, that the legislative authority should be affirmed to be in the parliament, and an individual with powers limited by the parliament; but that the military power should for the present remain with the Protector. He had no seat in the second parliament of the Protectorate, called in 1656; but when a new parliament was summoned upon the death of Cromwell, in January, 1658-9, he represented the University of Oxford.

His judicial conduct, during the Commonwealth, is represented by contemporaries of all parties as scrupulously just, and nobly independent. Several instances are related of his resolute refusal to submit the free administration of the law to the arbitrary dictation of the Protector. On one occasion of this kind, which occurred on the circuit, a jury had been packed by express directions from Cromwell. Hale discharged the jury on discovering this circumstance and refused to try the cause. When he returned to London, the Protector severely reprimanded him, telling him that "he was not fit to be a judge;" to which Hale only replied that "it was very true."

It appears that at this period, he, in common with several other judges, had strong objections to being employed by Cromwell as commissioners on the trial of persons taken in open resistance to his authority. After the suppression of the feeble and ineffectual rebellion in 1655, in which the unfortunate Colonel Penruddock, with many other gentlemen of rank and distinction, appeared in arms for the King, in the western counties, a special commission issued for the trial of the offenders at Exeter, in which Hale's name was inserted. He happened to be spending the Lent vacation at his house at Alderley, to which place an express was sent to require his attendance; but he plainly refused to go, excusing himself on the ground that four terms and two circuits in the year were a sufficient devotion of his time to his judicial duties, and that the intervals were already too small for the arrangement of his private affairs; "but," says Burnet, "if he had been urged to it, he would not have been afraid of speaking more clearly."

He continued to occupy his place as a judge of the Common Pleas until the death of the Protector; but when a new commission from Richard Cromwell was offered to him, he declined to receive it, and, though strongly urged by other judges, as well as his personal friends, to accept the office on patriotic grounds, he firmly adhered to his first resolution, saying that "he could act no longer under such authority."

In the year 1660 Hale was again returned by his native county of Gloucester to serve in the Parliament, or Convention, by which Charles II. was recalled. On the discussion of the means by which this event should be brought about, Hale proposed that a committee should be appointed to look into the propositions and concessions offered by Charles I. during the war, particularly at the tree of Newport, from whence they might form reasonable conditions to be sent over to the king. The motion was successfully opposed by Monk, who urged the danger which might arise in the present state of the army and the nation, if any delay should occur in the immediate settlement of the government. "This," says Burnet, "was echoed with such a shout over the house, that the motion was no longer insisted on." It can hardly be doubted that most of the destructive errors of the reign of Charles II. would have been spared, if express restrictions had been imposed upon him before he was permitted to assume the reins of government. On the other hand, it has been justly said, that the time was critical; that at that precise moment, the army and the nation, equally weary of the scenes of confusion and misrule which had succeeded to Richard Cromwell's abdication, agreed upon the proposed scheme; but that if delay had been interposed, and if debates had arisen in parliament, the dormant spirit of party would in all probability been awakened, the opportunity would have been lost, and the restoration might after all have been prevented. These arguments, when urged by Monk to those who were suffering under a pressing evil, and had only a prospective and contingent danger before them, were plausible and convincing; but to those in aftertimes who have marked the actual consequences of recalling the king without expressly limiting and defining his authority, as displayed in the miserable and disgraceful events of his "wicked, turbulent, and sanguinary reign," and in the necessary occurrence of another revolution within thirty years from the Restoration, it will probably appear that our ancestors paid rather too dearly on that occasion for the advantages of an immediate settlement of the nation.

Immediately after the restoration of the king in May, 1660, Lord Clarendon, being appointed Lord Chancellor, sought to give strength and stability to the new government, by carefully providing for the due administration of justice. With this view, he placed men distinguished for their learning and high judicial character upon the benches of the different courts. Amongst other eminent lawyers, who had forsaken their profession during the latter period of the Commonwealth, he determined to recall Hale from his retirement, and offered him the appointment of Lord Chief Baron. But it was not without great difficulty that Hale was induced to return to the labours of public life. A curious original paper, containing his "reasons why he desired to be spared from any place of public employment," was published some years ago by Mr. Hargrave, in the preface to his collection of law tracts. Amongst these reasons, which were stated with the characteristic simplicity of this great man, he urged "the smallness of his estate, being not above 500l. per annum, six children unprovided for, and a debt of 1000l. lying upon him; that he was not so well able to endure travel and pains as formerly; that his constitution of body required some ease and relaxation; and that he had of late time declined the study of the law, and principally applied himself to other studies, now more easy, grateful, and seasonable for him." He alludes also to two "infirmities, which make him unfit for that employment, first, an aversion to the pomp and grandeur necessarily incident to it; and secondly, too much pity, clemency, and tenderness in cases of life, which might prove an unserviceable temper." "But if," he concludes, "after all this, there must be a necessity of undertaking an employment, I desire that it may be in such a court and way as may be most suitable to my course of studies and education, and that it may be the lowest place that may be, to avoid envy. One of his Majesty's counsel in ordinary, or at most, the place of a puisne judge in the Common Pleas, would suit me best." His scruples were, however, eventually overcome, and on the seventh of November, 1660, he accepted the appointment of Lord Chief Baron; Lord Clarendon saying, as he delivered his commission to him, that "if the King could have found an honester and fitter man for that employment he would not have advanced him to it; and that he had therefore preferred him, because he knew no other who deserved it so well." Shortly afterwards he reluctantly received the honour of knighthood.

The trials of the regicides took place in the October immediately preceding his appointment, and his name appears among the commissioners on that occasion. There is however no reason to suppose that he was actually present; his name is not mentioned in any of the reports, either as interfering in the proceedings themselves, or assisting at the previous consultations of the judges; and it can hardly be doubted but that, if he had taken part in the trials, he would have been included with Sir Orlando Bridgman and several others in the bitter remarks made by Ludlow on their conduct in this respect. It has been the invariable practice from very early times to the present day, to include the twelve judges in all commissions of Oyer and Terminer for London and Middlesex; and as, at the time of the trials in question, only eight judges had been appointed, it is probable that Hale and the other three judges elect were named in the commission, though their patents were not made out till the following term, in order to preserve as nearly as possible the ancient form.

Sir Matthew Hale held the office of Lord Chief Baron till the year 1671, and during that period greatly raised the character of the court in which he presided, by his unwearied patience and industry, the mildness of his manners, and the inflexible integrity of his judicial conduct. His impartiality in deciding cases in the Exchequer where the interests of the Crown were concerned, is admitted even by Roger North, who elsewhere charges him with holding "demagogical principles," and with the "foible of leaning towards the popular." "I have heard Lord Guildford say," says this agreeable but partial writer, "that while Hale was Chief Baron of the Exchequer, by means of his great learning, even against his inclination, he did the Crown more justice in that court, than any others in his place had done with all their good-will and less knowledge."

Whilst he was Chief Baron he was called upon to preside at the trial of two unhappy women who were indicted at the assizes at Bury St. Edmunds, in the year 1665, for the crime of witchcraft. The Chief Baron is reported to have told the jury that "he made no doubt at all that there were such creatures as witches," and the women were found guilty and afterwards executed. The conduct of Hale on this occasion has been the subject of much sarcastic animadversion. It might be said in reply, that the report of the case in the State Trials is of no authority whatever; but supposing it to be accurate, it would be unjust and unreasonable to impute to Sir Matthew Hale as personal superstition or prejudice, a mere participation in the prevailing and almost universal belief of the times in which he lived. The majority of his contemporaries, even among persons of education and refinement, were firm believers in witchcraft; and though Lord Guildford rejected this belief, Roger North admits that he dared not to avow his infidelity in this respect in public, as it would have exposed him to the imputation of irreligion. Numerous instances might be given to show the general prevalence at that time of this stupid and ignorant superstition; and therefore the opinion of Hale on this subject does not appear to be a proof of peculiar weakness or credulity.

On the occurrence of the great fire of London in 1666, an act of parliament passed containing directions and arrangements for rebuilding the city. By a clause in this statute, the judges were authorised to sit singly to decide on the amount of compensation due to persons whose premises were taken by the corporation in furtherance of the intended improvements. Sir Matthew Hale applied himself with his usual diligence and patience to the discharge of this laborious and extra-judicial duty. "He was," says Baxter, "the great instrument for rebuilding London; for it was he that was the constant judge, who for nothing followed the work, and by his prudence and justice removed a multitude of great impediments."

In the year 1671, upon the death of Sir John Kelyng, Chief Justice of the Court of King's Bench, Sir Matthew Hale was removed from the Exchequer to succeed him. The particular circumstances which caused his elevation to this laborious and responsible situation at a time when his growing infirmities induced him to seek a total retirement from public life, are not recorded by any of his biographers. For four years after he became Chief Justice he regularly attended to the duties of his court, and his name appears in all the reported cases in the Court of King's Bench, until the close of the year 1675. About that time he was attacked by an inflammation of the diaphragm, a painful and languishing disease, from which he constantly predicted that he should not recover. It produced so entirely a prostration of strength, that he was unable to walk up Westminster Hall to his court without being supported by his servants. "He resolved," says Baxter, "that the place should not be a burden to him, nor he to it," and therefore made an earnest application to the Lord Keeper Finch for his dismission. This being delayed for some time, and finding himself totally unequal to the toil of business, he at length, in February 1676, tendered the surrender of his patent personally to the King, who received it graciously and kindly, and promised to continue his pension during his life.

On his retirement from office, he occupied at first a house at Acton, which he had taken from Richard Baxter, who says "it was one of the meanest houses he had ever lived in: in that house," he adds, "he lived contentedly, without any pomp, and without costly or troublesome retinue of visitors, but not without charity to the poor; he continued the study of mathematics and physics still as his great delight. It is not the least of my pleasure that I have lived some years in his more than ordinary love and friendship, and that we are now waiting which shall be first in heaven; whither he sayeth he is going with full content and acquiescence in the will of a gracious God, and doubts not but we shall shortly live together." Not long before his death he removed from Acton to his own house at Alderley, intending to die there; and having a few days before gone to the parish churchyard and chosen his grave, he sunk under a united attack of asthma and dropsy, on Christmas-day, 1676.

The judicial character of Sir Matthew Hale was without reproach. His profound knowledge of the law rendered him an object of universal respect to the profession; whilst his patience, conciliatory manners, and rigid impartiality engaged the good opinion of all classes of men. As a proof of this, it is said that as he successively removed from the Court of Common Pleas to the Exchequer, and from thence to the King's Bench, the mass of business always followed him; so that the court in which he presided was constantly the favourite one with counsel, attorneys, and parties. Perhaps indeed no judge has ever been so generally and unobjectionably popular. His address was copious and impressive, but at times slow and embarrassed: Baxter says "he was a man of no quick utterance, and often hesitant; but spake with great reason." This account of his mode of speaking is confirmed by Roger North, who adds, however, that "his stop for a word by the produce always paid for the delay; and on some occasions he would utter sentences heroic." His reputation as a legal and constitutional writer is in no degree inferior to his character as a judge. From the time it was published to the present day, his history of the Pleas of the Crown has always been considered as a book of the highest authority, and is referred to in courts of justice with as great confidence and respect as the formal records of judicial opinions. His Treatises on the Jurisdiction of the Lords' House of Parliament, and on Maritime Law, which were first published by Mr. Hargrave more than a century after Sir Matthew Hale's death, are works of first-rate excellence as legal arguments, and are invaluable as repositories of the learning of centuries, which the industry and research of the author had collected.

After his retirement from public life, he wrote his great work called 'The primitive Origination of Mankind, considered and examined according to the light of Nature.' Various opinions have been formed upon the merits of this treatise. Roger North depreciates the substance of the book, but commends its style; while Bishop Burnet and Dr. Birch greatly praise its learning and force of reasoning.

Sir Matthew Hale was twice married. By his first wife, who was a daughter of Sir Henry Moore, of Fawley in Berkshire, he had ten children, most of whom turned out ill. His second wife, according to Roger North, was "his own servant-maid;" and Baxter says, "some made it a scandal, but his wisdom chose it for his convenience, that in his age he married a woman of no estate, to be to him as a nurse." Hale gives her a high character in his will as "a most dutiful, faithful, and loving wife," making her one of his executors, and entrusting her with the education of his grand-children. He bequeathed his collection of manuscripts, which he says had cost him much industry and expense, to the Society of Lincoln's Inn, in whose library they are carefully preserved.

The published biographies of Hale are extremely imperfect, none of them containing a particular account of his personal history and character. Bishop Burnet's Life is the most generally known, and, though far too panegyrical and partial, is perhaps the most complete; it has been closely followed by most of his subsequent biographers. In Baxter's Appendix to the Life of Hale, and in his account of his own Life, the reader will find some interesting details respecting his domestic and personal habits; and Roger North's Life of Lord Guildford contains many amusing, though ill-natured and sarcastic anecdotes of this admirable judge.

(Text transcribed with the generous assistance of Bear)



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