Copyright
Thomas Jackson.

Christian biography .. online

. (page 2 of 18)
Online LibraryThomas JacksonChristian biography .. → online text (page 2 of 18)
Font size
QR-code for this ebook


he was pleading in defence of those laws which
they declared they would maintain and preserve ;
and he was doing his duty to his client ; so
that he was not to be daunted with threatenings.

Upon all these occasions he had discharged
himself with so much learning, tidelity, and
courage, that he came to be generally employed
for all that party : nor was he satistied to ap-



22 LIFE OF SIR MATTHEW HALE.

pear for their just defence in the way of his
profession, but he also relieved them often in
their necessities ; which he did in a way that
was no less prudent than charitable, consider-
ing the dangers of that time: for he did often
deposit considerable sums in the hands of a
worthy gentleman of the king's party, who
knew their necessities well, and was to distri-
bute his charity according to his own discretion,
without either letting them know from whence
it came, or giving himself any account to whom
he had given it.

Cromwell seeing him possessed of so much
practice, and he being one of the most eminent
men of the law, who was not at all afraid of
doing his duty in those critical times, resolved
to take him off from it, and raise him to the
bench.

Mr. Hale saw well enough the snare laid for
him : and though he did not much consider the
prejudice it would be to himself to exchange the
easy and safer profits he had by his practice, for
a judge's place in the common pleas, which he
was required to accept of; yet he did delibe-
rate more on the lawfulness of taking a com-
mission from usurpers : but having considered
well of this, he came to be of opinion, that it
being absolutely necessary to have justice and
property kept up at all times, it was no sin to
take a commission from usurpers, if he made
no declaration of his acknowledging their au-
thority ; which he never did. He was much
urged to accept of it by some eminent men of



LIFE OF SIR UATTHKW HALE. 23

his own profession, who were of the king's
party ; as Sir Orlando Bridgeman, and Sir
Geoffery Palmer ; and was also satisfied con-
cerning the lawfulness of it, by the resolution
of some famous divines, in particular Dr. Shel-
don and Dr. Henchman, who were afterward
promoted to the sees of Canterbury and
London.

To these were added the importunities of all
his friends ; who thought that in a time of so
much danger and oppression, it might be no
small security to the nation to have a man of
his integrity and abilities on the bench : and
the usurpers themselves held him in that esti-
mation, that they were glad to have him give a
countenance to their courts ; and by promoting
one that was known to have difl'erent principles
from them, aftected the reputation of honouring
and trusting men of eminent virtues, of what
persuasion soever they might be in relation to
public matters.

But he had greater scruples concerning the
proceeding against felons, and putting offenders
to death by that commission ; since he thought,
the sNvt)rd of justice belonging only by right to
the lawful prince, it seemed not warrantable to
proceed to a capital sentence by an authority
derived from usurpers. Yet at first he made
distinction between common and ordinary felon-
ies, and off«;nct\s aa;iinst the state : for the last,
he would never meddle in tliem ; for he thought
these might i)e often leaal and warrantable ac-
tions, and that the putting men to death on that



24 LIFE OF SIR MATTHEW HALE.

account was murder. But for the ordinary-
felonies, he at first was of opinion that it was
as necessary, even in times of usurpation, to
execute justice in those cases, as in matters of
property. But after the king was murdered, he
laid by all his collections of the pleas of the
crown ; and that they might not fall into ill
hands, he hid them behind the wainscoting of
his study ; for he said, there was no more occa-
sion to use them, till the king should be again
restored to his right ; and so, upon his majesty's
restoration, he took them out, and went on in
his design to perfect that great work.

Yet, for some time after he was made a judge,
when he went the circuit, he did sit on the crown
side, and judged criminals : but, having consi-
dered farther of it, he came to think, that it was
at least better not to do it ; and so, after the
second or third circuit, he refused to sit any
more on the crown side, and told plainly the
reason ; for in matters of blood he was always
to choose the safer side: and indeed he had so
carried himself in some trials, that they were
not unwillinghe should withdraw from meddling
farther in them ; of which I shall give some in-
stances.

Not long after he was made a judge, which
was in the year 1653, when he went the circuit,
a trial was brought before him at Lincoln, con-
cerning the murder of one of the townsmen, who
had been of the king's party, and was killed by
a soldier of the garrison there. He was in the
fields with a fowling-piece on his shoulder ;



LIFE OF SIR MATTHEW HALE. 25

which the soldier seeing, he came to him, and
said, it was contrary to an order which the pro-
tector had made, that none who had been of the
king's party shoukl carry arms : and so he would
have forced it from him : but as the other did
not regard the order, so being stronger than the
soldier he threw him down, and having beat
him, he left him. The soldier went into the
town, and told one of his fellow-soldiers how he
had been used, and got him to go with him, and
lie in wait for the man that he might be avenged
on him. They both watched his coming to
town, and one of them went to him to demand
his gun ; which he refusing, the soldier struck
at him ; and as they were struggling, the other
came behind, and ran his sword into his body,
of which he presently died. It was in the time
of the assizes, so they were both tried. Against
the one there was no evidence of forethought
felony, so he was only found guilty of man-
slaughter, and burned on the hand ; but the
other was found guilty of murder. And though
Colonel Whaley, that commanded the garrison,
camo into the court, and urged that the man
was killed only for disobeying the protector's
order, and that the soldier was but doing his
duty, yet the judge regarded both his reason
and ihreatenings very little ; and therefore he
not only gave sentt?nce against him, but order-
ed the execution to be so suddenly done that it
might not be possible to procure a reprieve ;
which he believed would have been obtained,
if there had been time enough granted for it.



26 LIFE OF SIR .MATTHEW HALE.

xA.nother occasion was given him of showing
both his justice and coinage, when he was in
another circuit. He understood that the pro-
tector had ordered a jury to be returned for trial,
in which he was more than ordinarily concern-
ed. Upon this information, he examined the
sheriff about it, who knew nothing of it ; for he
said he referred all such things to the under-
sheriff: and having next asked the under-sheriff
concerning it, he found the jury had been re-
turned by order from Cromwell : upon which
he showed the statute, that all juries ought to
be returned by the sherifi', or his lawful officer ;
and this not being done according to law, he
dismissed the jury, and would not try the cause ;
upon which the protector was highly displeased
with him, and at his return from his circuit, he
told him in anger, he was not fit to be a judge :
to which all the answer he made was, that it
was very true.

Another thing met him in the circuit, upon
which he resolved to proceed severely. Some
Anabaptists had rushed into a church, and had
disturbed a congregation while they were re-
ceiving the Lord's supper, not without some
violence. At this he was highly oflended ; for
he said, It was intolerable for men, who pre-
tended so highly to liberty of conscience, to go
and disturb others ; especially those who had the
encouragement of the law on their side. But
these were so supported by some great magis-
trates and officers, that a stop was put to his
proceedings ; upon which he declared, he would



LIFE OF SIU MATTHEW HALE. 27

meddle no more with the triuls on the crown
side.

When Penriiddock's trial was brou)^ht on,
there was a special messenger sent to him, re-
quiring him to assist at it. It was in vacation
time, and he was at his country house at Alder-
ley. He plainly refused to go, and said, the
four terms and two circuits were enough, and the
little interval that was between was little enough
for their private aff\iirs ; and so he excused him-
self. He thought it was not necessary to speak,
more clearly ; but if he had been urged to it, he
would not have been afraid of doing it.

He was at that lime chosen a parliament man,
(for there being then no house of lords, judges
might have been chosen to sit in the house of
commons,) and he went to it, on design to ob-
struct the mad and wicked projects then on
foot by two parties, that had very diflerent prin-
ciples and ends.

On the one hand, some that were perhaps
more sincere, yet were really brainsick, de-
signed they knew not what, being resolved to
pull down a standing ministry, the law and pro-
})erty of England, and all the ancient rules of
this government, and set up on its room an in-
digested enthusiastical scheme, which they
called " the kingdom of Christ," or of his saints ;
many of them being really in expectation, that
one day or another Christ would come down
and sit among them ; and at least they thoujrht
to begin the glorious thousand years mentioned
in the Revelation.



28 LIFE OF SIR MATTHEW HALE.

Others at the same time taking advantages
from the fears and apprehensions that all the
sober men of the nation were in, lest they should
fall under the t\Tanny of a distracted sort of
people, who, to all their other ill principles
added great cruelty, which they had copied
from those at Munster in the former age, in-
tended to improve that opportunity to raise their
own fortunes and families. x\midst these Judge
Hale steered a middle course ; for as he would
engage for neither side, so he, with a great
many more worthy men, came to parliaments
more out of a design to hinder mischief, than
to do much good ; wisely foreseeing, that the
inclinations for the royal family were daily
growing so much, that in time the disorders
then in agitation would ferment to that happy
resolution in which they determined in May,
1660. And therefore all that could be then
done was to oppose the ill designs of both par-
ties, the enthusiasts as well as usurpers. Among
the other e.xtravagant motions made in this par-
hament, one was to destroy all the records in
the Tower, and to settle the nation on a new
foundation : so he took this province to himself,
to show the madness of this proposition, the in-
justice of it, and the mischiefs that would fol-
low on it ; and did it with such clearness and
strength of reason, as not only satisfied all sober
persons, (for it may be supposed that was soon
done.) but stopped even the mouth of the fran-
tic people themselves.

Thus he continued administering justice till



LIFE OF SIR MATTHEW HALE. 29

the protector died ; but then he both refused
the mournings that were sent to him and his
servants for the funeral, and likewise to accept
of the new commission that was offered him by
Richard ; and when the rest of the judges urged
it upon him, and employed others to press him
to accept of it, he rejected all their importuni-
ties, and said he could act no longer under such
authority.

He lived a private man till the parliament met
that called home the king, to which he was re-
turned knight of the shire from the county of
Gloucester. It appeared at that time how much
he was beloved and esteemed in his neighbour-
hood ; for though another who stood in compe-
tition with him had spent near a thousand
pounds to procure voices, a great sum to be
employed that way in those days, and he
had been at no cost ; and was so far from so-
liciting it, that he had stood out long against
those who pressed him to appear ; and he
did not promise to appear till three days before
the election, yet he was preferred. He was
brought thither almost by violence, by the lord
(now earl of) Berkely, who bore all the charge
of the entertainments on the day of his election,
which was considerable, and had engaged all
his friends and interest for him. And whereas
by the writ, the knight of a shire must be miles
gladio cinctus, and he had no sword, that noble
lord girt him with his own sword during the
election : but he was soon weary of it ; for the
embroidery of the belt did not suit well with



30 LIFK OF SIR MATTHEW HALE.

the plainness of his clothes : and indeed the
election did not hold long ; for as soon as ever
he came into the field, he was chosen by much
the greater number, though the poll continued
for three or four days.

In that parliament he bore his share in the
happy period tlien put to the confusions that
threatened the utter ruin of the nation ; which,
contrary to the expectation* of the most san-
guine, settled in so serene and quiet a manner,
that those who had formerly built so much on
their success, calling it an answer from heaven
to their solemn appeals to the providence of
God, were now not a little confounded to see all
this turned against themselves, in an instance
much more extraordinary than any of those
were, upon which they had built so much. His
great prudence and excellent temper led him to
think, that the sooner an act of indemnity were
passed, and the fuller it were of graces and
favours, it would sooner settle the nation, and
quiet the minds of the people ; and therefore he
applied himself with a particular care to the
framing and carrying it on ; in which it was
visible he had no concern of his own, but merely
his love of the public that set him on it.

Soon after this, when the courts in Westmin-
ster Hall came to be settled, he was made lord
chief baron ; and when the earl of Clarendon
(then lord chancellor) delivered him his com-
mission, in the speech he made, according to
the custom on such occasions, he expressed his
esteem of him in a very singular manner ; tell-



LIFE OF SIR MATTHEW HALE. 31

ing him, among other things, that if the king
coukl have found out an honester and fitter man
for that employment, he would not have ad-
vanced him to it ; and that he had therefore
preferred him, because he knew none that de
served it so well. It is ordinary for persons so
promoted to be knighted ; but he desired to
avoid having that honour done him, and there-
fore for a considerable time declined all oppor-
tunities of waiting on the king ; which the lord
chancellor observing, sent for him upon busi-
ness one day, when the king was at his house,
and told his majesty, there was his modest
chief baron, upon wliich he was unexpectedly
knighted.

He continued eleven years in that place,
managing the court and all proceedings in
it, with singular justice. It was observed by
the whole nation how much he raised the repu-
tation and practice of it ; and those who held
places and offices in it can all declare, not only
the impartiality of his justice, for that is but a
common virtue, but his generosity, his vast
diligence, and his great exactness in trials.
Tiiis gave occasion to the only complaint that
ever was made of him, that he did not despatch
matters quick enough. But the great care he
used to put suits to a final end, as it made him
slower in deciding them, so it had this good
efiect, — that causes tried before him were sel-
dom, if ever, tried again.

Nor did his administration of justice lie only
in that court : he was one of the principal judges



32 LIFE OF SIR MATTHEW HALE.

that sat in Clifford's Inn, about settling the dif-
ference between landlord and tenant, after the
dreadful fire of London ; he being the first that
offered his service to the city, for accommodating
all the differences that might have arisen about
the rebuilding of it ; in which he behaved himself
to the satisfaction of all persons concerned : so
that the sudden and quiet building of the city,
which is justly to be reckoned one of the won-
ders of the age, is in no small measure due to the
great care which he and Sir Orlando Bridgeman
(then lord chief justice of the common pleas,
afterward lord keeper of the great seal of Eng-
land) used, and to the judgment they showed
in that affair ; since, without the rules then laid
down, there might have otherwise followed such
an endless train of vexatious suits, as might have
been little less chargeable than the fire itself had
been. But without detracting from the labours
of the other judges, it must be acknowledged,
that he w^as the most instrumental in that great
work ; for he first, by way of scheme, contrived
the rules upon which he and the rest proceeded
afterward ; in which his readiness at arithmetic,
and his skill in architecture, were of great use
to him.

But it will not seem strange that a judge be-
haved himself as he did, who at the entry into
his employment set such excellent rules to
himself, which will appear in the following
paper, copied from the original under his own
hand : —



LIFE OF SIR MATTHEW HALE. 33

Things necessary to be continiialhj had in
rcmeinbrancc.

1. That in the administration of justice, I am
intrusted for God, the king, and country ; and
therefore,

2. That it be done, (1.) Uprightly, (2.) De-
liberately, (3.) Resolutely.

3. That I rest not upon my own understand-
ing or strength ; but implore and rest upon the
direction and strength of God.

4. That in the execution of justice I care-
fully lay aside my own passions, and not give
way to them, however provoked.

5. That I be wholly intent upon the business
I am about, remitting all other cares and
thoughts as unseasonable, and interruptions.

6. That I suffer not myself to be prepossess-
ed with any judgment at all, till the whole
business and both parties be heard.

7. That I never engage myself in the begin-
ning of any cause, but reserve myself unpreju-
dii-ed till the whole be heard.

8. That in business capital, though my na-
ture prompt me to pity, yet to consider, that
there is also a pity due tc *he country.

9. That I be not too rigid in matters purely
conscientious, where all the harm is diversity
of judgment.

10. That I be not biassed with compassion
to the poor, or favour to the rich, in point of
justice.

11. That popular or court applause or dis-

3



34 LIFE OF SIR JIATTHEW HALE.

taste have no influence into any thing I do in
point of distribution of justice.

12. Not to be solicitous what men will say
or think, so long as I keep myself exactly ac-
cording to the rules of justice.

13. If in criminals it be a measuring cast, to
incline to mercy and acquittal.

14. In criminals that consist merely in words,
when no harm ensues, moderation is no in-
justice.

15. In criminals of blood, if the fact be evi-
dent, severity of justice.

16. To abhor all private solicitations, of
what kind soever, and by whomsoever, in mat-
ters depending.

17. To charge my servants, (1.) Not to in-
terpose in any business whatsoever. (2.) Not
to take more than their known fees. (3.) Not
to give any imdue precedence to causes. (4.)
Not to recommend counsel.

18. To be short and sparing at meals, that J
mav be the fitter for business.



CHAPTER III.

He would never receive private addresses or
recommendations from the greatest persons in
any matter, in which justice was concerned.
One of the first peers of England went once to
his chamber, and told him, that having a suit in
law to be tried before him, he was then to ac-



LIFE OF SIR MATTffKW HALE. 35

quaint him with it, that he might the better un-
derstand it, when it should come to be heard in
court. Upon which the k)rd chief baron inter-
rupted him, and said, he did not deal fairly to
come to his chamber about such affairs ; for he
never received any information of causes but in
open court, where both parties were to be heard
alike ; so he would not suffer him to go on.
Whereupon his grace (for he was a duke) went
away not a little dissatisfied, and complained of
it to the king, as a rudeness that was not to be
endured. But his majesty bade him content
himself that he was no worse used ; and said,
he verily believed he would have used himself
no better, if he had gone to solicit him in any
of his own causes.

Another passage fell out in one of his circuits,
which was somewhat censured as an affectation
of an unreasonable strictness ; but it flowed
from his exactness to the rules he had set him-
self. A gentleman had sent him a buck for his
table, that had a trial at the assizes ; so when
he heard his name, he asked if he was not the
same person that had sent him venison ; and
finding he was the same, he told him he could
not suffer the trial to go on till he had paid him
for his buck. To which the gentleman an-
swered, that he never sold his venison ; and
that he had done nothing to him which he did
not do to every judge that had gone that circuit;
which was confirmed by several gentlemen
then present : but ail would not do ; for the
lord chief baron had learned from Solomon, that



36 LIFE OF SIR MATTHEW HALE.

" a gift perverteth the ways of judgment ;" and
therefore he would not suffer the trial to go on,
till he had paid for the present, upon which the
gentleman withdrew the record. And at Salis-
bury, the dean and chapter, having, according
to custom, presented him with six sugar-loaves
in his circuit, he made his servants pay for the
sugar before he would try their cause.

It was not so easy for him to throw off the
importunities of the poor, for whom his com-
passion wrought more powerfully than his
regard to wealth and greatness ; yet, when jus-
tice was concerned, even that did not turn him
out of the way. There was one that had been
put out of a place for some ill behaviour, who
urged the lord chief baron to set his hand to a
certificate to restore him to it, or provide him
with another ; but he told him plainly his fault
was such that he could not do it. The other
pressed him vehemently, and fell down on his
knees, and begged it of him with many tears ;
but finding that could not prevail, he said he
should be utterly ruined if he did not, and
he should curse him for it every day. But
that having no effect, then he fell out into all the
reproachful words that passion and despair
could inspire him with ; to which all the an-
swer the lord chief baron made was, that he
could very well bear all his reproaches, but he
could not for all that set his hand to his certifi-
cate. He saw he was poor, so he gave him a
large charity and sent him away.

But now he was to go on after his pattern.



LIFE OK SIR MATTHEW HALE. 37

Pomponius Alticiis, still to favour and relieve
them that were lowest ; so besides great chari-
ties to the nonconformists, who were then, as
lie thought, too hardly used, he took great care
to coyer them all he could from the severities
some designed against them, and discouraged
those who were inclined to stretch the laws too
much against them. He lamented the differ-
ences that were raised in the church very much;
and, according to the impartiality of his justice,
he blamed some things on both sides, which 1
shall set down with the same freedom that he
spake them. He thought many of the noncon-
formists had merited highly in the business of
the king's restoration, and at least deserved that
the terms of conformity should not have been
made stricter than they were before the war.
There was not then that dreadful prospect of
popery that has appeared since. But that which
afflicted him most was, that he saw the heats
and contentions which followed upon those dif-
ferent parties and interests, did take people off
from the indispenable things of religion, and
slackened the zeal of otherwise good men for
the substance of it ; so much being spent about
external and indinereiit things. It also gave
advantages to atheists to treat the most sacred
points of our holy faith as ridiculous, when they
saw the professors of it contend so fiercely, and
with such bitterness, about lesser matters. He
was nuich offended at all those books that were
written to expose the contrary sect to the scorn
and contempt of the age, in a wanton and petu-



38 LIFE OF SIR MATTHEW HALE.

lant style. He thought such writers wounded
the Christian religion through the sides of those
who differed from them ; while a sort of lewd
people, who, having assumed to themselves the


2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Online LibraryThomas JacksonChristian biography .. → online text (page 2 of 18)