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.