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, when 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

intemperance 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 practise 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 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 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,

injustice, 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 treaty 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 have 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 after times 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, 1668, 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 £500 per annum,

six children unprovided for, and a debt of £1000 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 7th 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 a part in the trials, he would have been included

with Sir Orlando Bridgeman 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 Guilford

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 Guilford 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 authorized 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 extrajudicial 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 entire 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 liveth

contentedly, without any pomp, and without costly or troublesome retinue

of visitors, but not without charity to the poor; he continueth 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 saith 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 church-yard and chosen his grave, he sunk

under a united attack of asthma and dropsy, on Christmas-day, 1676.

The Gallery of Portraits: with Memoirs. Volume 3 (of 7) · 第 7 / 20 段