1 mm i iill IBll ISAAC FOOT A- / ■P rite ongmal - ~^Af "rJ.ie',ltiii Ril'- li^'i^— :-Jigraved "byHAdlard- .EM. M. :^*^ MALE. ■'■ ^^ OA^^^ ^'^t^J^C^- ^^y^ Lonaon. JicksoiiSc'Walford.l8,S*PaTilE ChiirclYald, 1835. i. MEMOIRS LIFE, CHARACTER, AND WRITINGS, SIR MATTHEW HALE, KNIGHT, aor» «rf);rf ,?|u9ttrc of ([Fnglanlr. Esy J. B. WILLIAMS, ESQ. LL.D. F.S.A. LONDON: JACKSON AND WALFORD, 18, ST. PAULS CHURCH-YARD. MDCCCXXXV. /'; 5V K. CLAY, PRINTER, BREAD-STREET-HII. I,, DOCTORS'-COMMONS. TO THE REVEREND THOMAS CHALMERS, D.D. PROFESSOR OF THEOLOGY IN THE UNIVERSITY OF EDINBURGH, THIS VOLUME IS INSCRIBED, AS A MEMORIAL OF FRIENDSHIP AND ESTEEM, BY THE AUTHOR. } PREFACE. How carq^ully soever the catalogue of laymen, which embellishes the Church, is perused, it would be difficult to select from it, an individual more distinguished than Sir Matthew Hale. To his memory, as well as Hooker's,' even " princes, and the most learned of the nation, have paid reverence." The lavish praises bestowed upon him may, in part, be attributed to the relics of his own in- dustry ; and, in part, to the fragrant memorial of his virtues, by Bishop Burnet : a memorial 1 " His memory deserves the same honour as St. Simplicius ; for kings and chief magistrates, throughout the learned world, do honour themselves, by wearing of S.S. in memory of the name of St. Simplicius, and in acknowledgment of his eminent justice." Short account of Hale, in " The ancient and present State of Gloucestershire," by Sir Robert Atkyns, p. 208. fol. 1712. VI PREFACE. which not only registered facts, hut appealed to sui'vivors for their accuracy, while the Judge was fresh in their recollection ; and wliich, though pre- pared without personal knowledge, was no " dry, and withered branch of composition." It was trans- lated hy Louis Dumesnil into French : ^ in the list of books recommended by Dr. Johnson,^ it is the only piece of biography mentioned : and the venerated Wilberforce, numbers it among those lives of eminent Christians, which are most prac- tically useful.'* An abridgement of it speedily appeared, from the pen of the Rev. Samuel Clark^' it was re- duced yet more, in the Biographia Britannica ; in Tomes's Biographical Collections ; in Middleton's Biographia Evangelica ; in the General Biography of Dr. Aikin, and others ; and the invaluable Dictionary of my lamented friend, the late Mr. Chahners. The whole was reprinted, not long since, by the Rev. Dr. Wordsworth,^ now Master of Trinity College, Cambridge. Other editions might be noticed, but three only are deserving of particular mention. Two of them were edited by the late Mr. Knox, of Dublin, and 2 In the year 1688, and published at Amsterdam. 3 Life by Boswell, vol. v. p. 195. 12mo. 1811. * Practical View, c. 7. s. 2. ^ pol. 1683. Eccles. Biog. 8vo. 1810. vol. vi. pp. 1—106. PREFACE. vii the other by a distinguished prelate.' As, how- ever, the latter copy embraces both Mr. Knox's Prefaces, that alone will be used in the following pages. A life of Hale was written by Mr. Serjeant Runnington, preliminary to his edition of the " History of the Common Law;"^ and, by the Venerable Archdeacon Wrangham, in his British Plutarch ; in each case, with great taste, and ele- gance : but neither of those sketches, made any approach to a reprint of the Memoir by Burnet ; and they were too brief to interfere with that now adventured. A writer in the " Gallery of Por- traits," published by the Society for Diffusing Useful Kjiowledge, has pointed out the imperfect condition of all the accounts of Hale ; Burnet's, as too partial and panegyrical ; ^ and the rest, as not sufficiently minute. That the eminent individual in question, has a strong, if not a pecuKar, claim to regard, will, it is thought, be admitted: for, independently of the ' Lives, Characters, and an Address to Posterity, by Gilbert Burnet, D.D. Lord Bishop of Sarum ; with the two Prefaces to the Dublin edition, edited, with an Introduction and Notes, by John Jebb, D. D. F. R. S. Bishop of Limerick, Ardfert, Aghadoe. 8vo. 1833. Bishop Jebb recommended the Life of Hale, by Burnet, in his Primary Charge, p. 13. " 8vo. 1779. In a subsequent edition, he much enlarged the Memoir, a No. XIX. p. 76. Viii PREFACE. natural, aiid acquired, endowments which have ren- dered him famous ; and, independently of public attachment to a portion, at least, of his writing, evinced by their constant sale ; ^^ he, like his devout contemporary, De Renty, was no " retired, or clois- tered person."" He was one who, besides dis- charging the ordinary duties of domestic life, occupied several exalted stations ; and filled all of them, so as to rivet attention ; to extort applause, even from enemies. Opposition, when it arose against him, was borne down by the weight of liis character: so resplendent, in short, were his excellencies, that, to this day, if an instance of singular virtue and uprightness, especially in the legal profession, is to be adduced, the mind turns as instantly to Lord Hale, as the needle to the pole. He contributed more, by his example,^^ to remove those vulgar ei'rors which once were enter- tained, and are still not extinct, respecting pro- fessional men, than any argument could have effected. It was by conversation with him, and with Selden, that the prejudices cherished by "^ Some of his Letters have been embodied in an elegant little volume, entitled " Practical Wisdom," or the Manual of Life, the Counsels of Eminent Men to their Children. 12mo, 1824. 11 The Holy Life of Monsieur De Renty, Chancellor to Louis XIIL 12mo. 1658. 12 Mr. Hayley styles him the " blameless Sir Matthew Hale ; the favourite model of integrity." Life of Milton, p. 129. 'tto. 17Do. 2d edition. PREFACE. IX Archbishop Usher, against lawyers, were ba- nishedJ^ There will be some danger, lest the ensuing narrative, viewed as an illustration of practical Christianity, should produce amazement, rather than emulation ; but such a misuse, alike unfavour- able to personal advantage, and dishonouring to God, is to be vigilantly avoided. It should be deeply impressed upon the reader, that the most promi- nent features in the moral image of Hale — his " delight in the law of the Lord ; " his patient, and faithful diligence, as a member of society ; his studiousness of peace ; his urbanity and serious- ness ; his self-denial ; his freedom from ambition ; — identified, as they are, ^\^th personal religion, are qualities never set forth in the Bible, as wonderful, or rare ; but as essential, and ordinary lineaments of the christian character. It is, therefore, evi- dent, that the acquisition of the " same mind," the doing of the " same things," is, in the case of every individual, no less a duty ; no less indis- pensable to felicity ; no less necessary to the divine glory ; than in the case of Hale, and the countless host of believers. Upon the life, by Burnet, the Memoir before us. " See Hale's Histor. Plac. Cor. vol. i. Pref. p. vi. fol. 1736. and post, p. 131. ' A 3 X PREFACE. as to its basis, rests : but the arrangement is en- tirely new ; and the whole increased, from the " Notes" of Baxter and Stephens; the Judge's own manuscrij)ts ; and every other accessible source. The facts have been thoroughly examined ; and, as much as possible, attended to, chronologically. In addition to this, the labours of others, in the same department, have been freely used. When any thing not noticed by Burnet is introduced, the authority is quoted : but the Bishop's work is seldom formally referred to ; every circumstance in it, connected with the Judge, being avowedly retained. It is not improbable, that some persons may, for a moment, feel surprised, if not offended, that the style of that standard book should have been abandoned : and the feeling is entitled to sympathy. "At the same time it must be observed, that it ap- peared impossible to give it entire, and use, as it seemed desirable to use them, the materials which will be found in the present volume. For, had the Bishop's narrative been reprinted, the new matter must have been exhibited separately ; which would have seriously affected the arrangement ; and oc- casioned, too, in addition to other awkwardnesses, intolerable repetitions. Beside which, (to make no allusions, by way of shelter, to the criticisms of PREFACE. xi Pope, or Swift, upon Burnet as a writer ; nor yet to the observations of Mr. Stephens,''*) it may be anticipated that the offence, if it be such, will appear the more venial, when it is recollected, that the admirers of the beautiful Memoir alluded to, have the easiest possible means of gratification : numerous copies are to be obtained, particularly the one recently edited by Bishop Jebb ; and as that edition contains the other " Lives" Burnet wrote, and wrote so well, the expectation is justi- fied, that the supply will continue to be mifailing. While, for purposes of verification, the collected edition of our author's writings, " moral and re- ligious," pubhshed in the year 1805, under the superintendence of the Rev. T. Thirlwall, M.A.'^ has been employed ; the title of each " Contem- plation" is, also, given, in order that any other edition may, the more readily, be consulted. The introduction of his Lordship's Will ; the account furnished of his numerous publications ; and the notice taken of them (with unfeigned diffidence), will not, it is hoped, be considered superfluous. The parenthetical explanation just given, is applicable, and I wish it applied, to the whole work. Nor can I, with Mr. Serjeant Runnington, " See post, p. 390. " !„ 2 vols. 8vo. Xii * PREFACE. on an occasion somewhat similar, help saying, that it is " dismissed — with fear and trembling." For, in spite of every effort, and attention studiously vigilant and sedulous, imperfections will present themselves ; quite sufficient, if it were not for the estimate commonly made in such cases, to induce an appeal to the reader's candour, and indulgence. It may be mentioned, however, without any apo- logy, that the undertaking has been strictly that of an amateur ; that it has been prosecuted under the pressure of duties, rendering more than occa- sional progress impracticable ; confining, indeed, in a great measure, recreative engagements like that before us, to moments abridged from sleep. In the " Notes," some regard has been paid to illustration ; and, unless I am deceived, without unnecessary minuteness. That service might have been greatly extended, and in a manner gratifying to the curious ; especially in relation to philo- sophical subjects ; the times ; Sir Matthew's official conduct; and the use, moreover, he occasionally made, by alteration, of other writers : an instance of the latter occurs at page 75, in reference to one of the sayings of Plautus. All attempts to furnish a complete pedigree of the Judge's family and representati^'es, have failed ; an acknowledgment made \vith the more regret, be- cause had it not been so, Burnet's fond and PREFACE. ' xiil accurate anticipations — that " in after-times," it would " be reckoned no small honour to be de- scended ^^ from " Lord Hale — might have been fully met ; as well as that " reckoning up " of his Lordship's " issue," which the good Bishop com- menced,"'' best continued, and displayed. The pedigree Mr. Thirlwall framed, was limited to the eldest son of Sir Matthew, and his descendants.'^ To my esteemed friend, Joshua Wilson, Esq., Barrister at Law, Highbury-place, London, I am afresh indebted, for the use of books out of his well-furnished library ; and also, for the liberal communication of an authentic transcript of Lord Hale's " History, and Analysis of the Common Law." By the kind assistance of Sir Henry Ellis, and the obliging librarians of the British Museum, I 16 Life, p. 184. 12mo. 1682, The Rev. Robert Uvedale, M.A., Vicar of Fotherby, near Louth, Lincolnshire, in a letter with which, with unsolicited kindness, he favoured me, states, that " Mary, second daughter of Edward Stephens, Esq. of Cherrington, Gloucestershire, by his wife Mary, eldest daughter of Sir Mathew Hale, married the Rev. Robert Uvedale, LL.D. Rector of Orpington, in Kent. Dr. Uvedale," he adds, " who was my great grandfather, died in 1722, aged 80, and his wife, in 1740, aged 84. Rachel, eldest daughter of Mr. Stephens, married the Rev. Robert Bull, (son of Bishop Bull), Prebendary of Gloucester, and Rector of Tortworth, in Glou- cestershire. — See Nelson's Life of Bishop Bull, p. 475." 17 See post, p. 160. '« Works, vol. i. p. 193. xiv PREFACE. was enabled to acquire, with facility, all the in- formation to be gained in that splendid depository, as well from the Hargrave Collection of Lord Hale's papers, as from not a few printed volumes, and uncommon pamphlets. The politeness of the Librarian of Lincoln's Inn, in whose care are the valuable MSS. bequeathed by Lord Hale ; as also the ready acquiescence of the Benchers in my wish to transcribe the cata- logue, demand most grateful acknowledgment. The name, likewise, of my friend, Joseph Blower, Esq., of Lincoln's Lm Fields, is entitled to par- ticular mention ; not only for offices of kindness, rendered in person, but for the willing use of his time and influence, for the promotion of my object. Through him, too, I obtained an introduction to the possessor of the Judge's private MSS. and various relics — Robert Hale Blagden Hale, Esq., of Cottles, near Melksham, in Wiltshire. The obliging readiness of that gentleman to further, by all the information within his power, the present undertaking ; his permission to copy the very fine family picture ^^ of the Judge, in his possession ; his " An excellent full-length portrait of Sir Matthew Hale, is in the possession of the Right Honourable the Lord Kenyon, at Gre- dington, in Flintshire. A list of the various engraved portraits of Sir Matthew, may be seen in Granger's Biog. Hist. vol. v. pp. 119, 120. 8vo. 1824: and in Walpole's Anecdotes of Painting, &c. by Dallaway, vol. v. PREFACE. XV communication of the MS. for the facsimile of the hand-writing ; and his cordial Hberality, in reference to the whole of those unrivalled treasures which he possesses, — have laid me under the deepest obligations ; for, although the selections made, from the rich and unique MSS. alluded to, owing to their nature, and the studied compression of the following account, not to mention his Lord- ship's wishes respecting them, are comparatively few, they have imparted, with respect to some statements, a degree of confidence, which could not, in their absence, have been felt : they have shed a light upon Hale's own course, as well as the period in which he lived : and, by supplying a guide to his opinions, both of men and things, have given to the work a value, it could no other- wise have possessed. Miss Hale must permit me to express my cordial thanks, for the trouble she so handsomely took, in furnishing the drawing of the armorial bearings, which is engraved at the foot of the portrait. It would have been pleasant, to have enlarged upon various subjects collateral to the following pages ; to have dwelt upon themes of general pp. 114,203,301. A copy of the portrait in Lincoln's Inn Li- brary, is given by Mr. Lodge, in his Ihustrious Heads, fol. ed. No. XX. ; and by the Society for Diffusing Useful Knowledge, in the number of their " Gallery," ah-eady quoted. Xviii PREFACE. and wealth, have, as he has done, " passed away ;" and to connect with the computation, the assurance — that a similar event must happen to every living person ; how speedy, and entire would be the change, in their character, opinions, and habits! Instead of the shortness of time, furnishing, after the fashion of the Epicureans, an argument for sensuality, and indifference, would there not be one universal supphcation ? — " So teach us to number our days, that ive may apply our hearts unto WISDOM." JOHN BICKERTON WILLIAMS. The Crescent, Shrewsbury, March 4, 1835. CONTENTS. CHAPTER I. FROM Hale's birth, a. d. 1609, to a. d. 1629. PAGE Birth. Descent. Education. Removal to College. His Tutor. Habits. Resolution to be a Soldier. Change of Purpose. . 1 CHAPTER II. A.D. 1629 TO HIS CALL TO THE BAR. He enters at Lincoln's Inn — is impressed for a Sailor. Occur- rence which broke oft' liis vain Company. Altered Character. Rules of Conduct. Noy. Selden. Vaughan. Usher. Pur- suits. Common-place Book. Anecdote 6 CHAPTER III. FROM HIS CALL TO THE BAR TO A. D. 1648. Called to the Bar. National Troubles. Atticus. Is Counsel for Lord Straff"ord. The Covenant. Is Counsel for Arch- bishop Laud. Anecdote. Negotiation respecting Oxford. En- gagements as Counsel. Is Counsel for King Charles the First. 12 XX CONTENTS. CHAPTER IV. A.D. 1648 TO A.D. 1653. PAGE State of Public Affairs. The Engagement. Baxter's Remark upon it. Pleas of the Crown. Is Counsel for the Duke of Hamilton, the Earl of Holland, the Lord Capel, and Lord Craven. Took the Engagement. Is appointed one of the Committee for Reforming the Law. Is Counsel for Chris- topher Love. His Conduct. Is created a Serjeant. Instal- lation of Cromwell. Selected for one of his Judges. Scruples. Acceptance of Office , 27 CHAPTER V. A.D. 1653 TO A.D. 1660. His Conduct as a Judge. Trial of two Soldiers at Lincoln. Interview with Cromwell. Conduct of some Pretenders to Liberty. Refuses to assist at Colonel Penruddock's Trial, Elected M. P. for Gloucestershire. Parliamentary Conduct. Saves the Tower Records. Proposal as to the Government. Death of Selden. Out of Parliament. Death of Cromwell. Refuses a Commission under Richard. Elected M. P. for Oxford. Correspondence with the Vice-Chancellor of Oxford. Sits in the Convention Parliament as M. P. for Gloucester- shire. His Remarks upon the projected Restoration. ... 37 CHAPTER VI. A.D. 16G0. His Proposal as to the Restoration of the King. His Remarks upon the Times. The Act of Indemnity 51 CHAPTER VII. A.D. 1660 TO A.D. 1662. Lord Clarendon's Appointments. Hale's Reasons against his offered Promotion. Is made Lord Chief Baron. Lord Cla- rendon's Speech. Mr. Knox's Remarks. Is Knighted. His Rules for Judicial Conduct. His Illness. His Reflections upon it 79 CONTENTS. XXI CHAPTER VIII. A. D. 1662 TO A. D. 1666. PAGE Anecdotes of him as a Judge. Trial of Witches. Memorandum respecting the Judges lOi CHAPTER IX. A. D. 1666 TO A. D. 1671. Is engaged in settling the Disputes after the Fire of London. Becomes acquainted with Baxter. Favours a Comprehen- sion. Burnet's Account. Remarks upon Knox's Observations. Hale's Remarks upon Popery. Acquaintance with Bishop Wilkins. Others of his Friends. Publishes a Preface to Rolle's Abridgment. His Account of Lord RoUe. His Conduct towards Baxter 112 CHAPTER X. A.D. 1671 TO A. D. 1676. Promotion to be Chief Justice of the King's Bench. His Conduct. His Behaviour and Counsel to young StiMents. His Essay touching the Gravitation and Non-gravitation of Fluid Bodies. His " Difficiles Nugee." His Health declines. His Memoranda in reference to his Office. Determines to resign. His Interview with the King. His Resignation. A Pension assigned him. His Conduct. His Translation from Seneca's Thyestes. His Character by the Lord Chancellor. Sir R. Rainsford's Reply I34 CHAPTER XL A.D. 1676 TO HIS DEATH, A.D. 1676-7. Retii-es to Alderlej-. His Habits. His Conduct on the Sabbath. The Publication of his Contemplations. His own Account of his History. His Writings against Atheism— they are sub- mitted to Bishop Wilkins and Dr. Tillotson. The " Primitive Origination " of Mankind published. Burnet's Account of it. XXll CONTENTS. PAGE His last Illness. His Meditations upon Death. His Inter- views with his Parish Minister. His Observation of Christ- mas-day — a Poem upon it. His Choice of a Grave. His Death. His Person. His Family 145 CHAPTER XII. HIS PIABITS AND CHARACTER, His private .Deportment. Attention to his Children. Family Worship. Conduct to his Servants. Diligence. Exercise. Modesty. Disregard to Wealth. Conduct as a Landlord. Counterfeit Money. Plainness in Furniture, &c. Tempe- rance. Negligence in Dress. Baxter's Account of his manner of Conversation. Correspondence between his Public and Private Domgs. His Delight in Social Intercourse. His Habits. Concealment of his Opinions. Prudence. Right- eousness. His Pleading. Disinterestedness. His Regard for, and Conduct to, the Poor. Love of Building. Mercifulness. Deportment as a Judge. His delight to commend. His Moderation and catholic Charity. Nobleness of his Mind. His Aversion to Bigotry and violent Controversialists. His Self-Discipline — Self-Control — Forgiveness of Injuries — Conduct in Affliction — Regard to God. His Protestantism. His Preference of the Established Church. His Conduct at Church-»-Secret Devotions. His Reserve upon Religious Subjects— Regard to the Lord's-day. His general and un- common Excellence — does not escape Censure. Mr. Har- grave's Observations in Reply to the Hon. Roger North's Calumnies 164 CHAPTER XIIL SOME ACCOUNT OF HIS GENIUS, LEARNING, AND WRITINGS. His vast PoAvers — Learning — Science. Greek Philosophers — Hebrew. Taste for Antiquities — Poetry. Plan of Study. Comprehensive Plans and Reading. Attention to Natural Curiosities. Did not aim at being thought a Philosopher — Guarded against such a Construction. Conscientious in all his Pursuits. Dispute with Dr. H. More. Conduct as to Sel- den's Books. His own IMS. Collections. Catalogue of his MSS. Works improperly ascribed to him. His published CONTENTS. xxiii PAGE Works. His surprising Attainments — how accounted for. Humour as an Author. Habits, as a Lawyer, trausfused into his Writings. Illustrations. Extreme Minuteness a defect. Defects of Style, &c. Redeeming Points— Gentleness— Un- ambitiousness— Imagination— Illustrations— Sententiousness — Soliloquies — Regard to the Scriptures. Some of his State- ments objectionable — Facts in mitigation. His Writings of high authority. His Sagacity, &c. General Observations on the Age of Hale. His Honesty, &c. His Writings on Theo- logy chiefly noticed here. Practical nature of his Habits. Usefulness a recommendation. Conviction of the Truth of Religion. Modest Diffidence. Mr. Thirlwall's Misapprehen- sions, Bishop Warburton. Attention to his Profession. Character of his Works on Legal Subjects. Oratory. Ge- neral Character of his Writings and Style. Comparison between Hale and Coke 240 The Will of Sir Matthew Hale 397 Notes .••.-.......,,,., , , 361 ERRATA. Page 6, note, for ' Note E E,' read ' Note GG.' 105, line 13, after 'Happy,' insert 'would it have been. 123, ... 4, after ' all,' insert ' oV 159, ... 4, from bottom, for ' 1676,' read ' 1677.' • 161, ... 21, /or 'Alderley,'rearf 'Adrterley.' 325, ... 14, for ' occupation,' read ' occupations.' " The last year of my abode at Acton, I had the liappiness of a neighbour, whom 1 cannot easily praise above his worth — Sir Matthew Hale, Lord Chief Baron of the Exchequer — whom all the judges and lawyers of England admired for his skill in law, and for his justice ; and scholars honoured for his learning ; and I highly valued for his sincerity, mortification, self-denial, humility, conscientiousness, and his close fidelity in friendship." R. Baxter. Immortal Hale! for deep discernment praised, And sound integrity, not more than famed For sanctity of manners undefiled." COWPER. MEMOIRS OF SIR MATTHEW HALE. CHAPTER I. FROM HIS BIRTH, A.D. 1609, TO A.D. 1629. Matthew, the only child of Robert Hale, Esq., by Joan, daughter of Matthew Poyntz, of Alderley, in the county of Gloucester, Esq., was born at Alderley, November 1, 1609. His mother was a scion of the " noble " family of Poyntz, of Acton ; but his grandfather, Robert Hale, of Wotton-under-Edge, in Gloucestershire, like many of his progenitors, was a clothier : emi- nent, however, in his line ; affluent also ; and " rich in good works." The father of our author was trained to the bar, and became a member of Lincoln's Inn ; but early in Hfe was embarrassed by scruples respecting the phraseology used in pleadings. It is in vain to conjecture the extent of his diffi- culties ; and equally impossible to estimate, with B 2 accuracy, their character; but the direction con- tained in his will — that his son should follow the law — appearing so entirely to negative the fact of their continued influence, they would seem, inde- pendently of other reasons, to have been unfounded. That they, at one period, operated forcibly upon his own mind, may, nevertheless, be concluded from the circumstance, that, in consequence of them, he early abandoned his profession,* and with it the only means in his power of increasing the paternal inheritance, already, nominally at least, reduced by a disposition eminently benevolent. He not only liberally dispensed his alms in his lifetime, but at his decease charged his small estate (about 100/. a year) with a perpetual annuity of 201. in favour of the poor of Wotton : an act of kindness well approved of by his son, and after- wards confirmed by him, with some addition ; and with this regulation also, that it should be distri- buted among such poor housekeepers only as lived without parochial relief. Before young Hale attained his fifth year, both his parents were removed by death. The God of Orphans, however, "took him up;" and after some opposition from Mr. Thomas Poyntz, his mother's brother, he was committed to the care of one of his near kinsmen, Anthony Kingscot, of Kingscot, Esq. That gentleman being puritanically in- clined, and intending his young charge for a divine, ' Some judicious remarks upon Mr. Hale's conduct occur in Edgeworth's Essays on Professional Education, ch. vi. p. 348. 4to. 1809. 3 bestowed upon his education correspondent care, a circumstance which seems to have provoked An- thony Wood's wrath ; for, noticing Sir Matthew's grammar-learning, he remarks, that it was obtained at Wotton-under-Edge ; " not in the free school, but under one Mr. Staunton, the scandalous vicar." ^ Of Hale's early years nothing further is known, than that, while at school, he had the reputation of being an extraordinary proficient in learning ; and that, before he was seventeen, he removed to Magdalen Hall, Oxford. His college tutor was the Rev. Obadiah Sedg- wick ; Burnet merely mentions it : the editor of Hale's " Moral and ReHgious Works''-^ does more ; and having, in a note, endeavoured, very ob^douslv, by extracts from the " Athenae Oxonienses," to degrade Mr. Sedgwick, it is necessary to remark, that if the union of piety, and learning, and wealth, could have formed a shield against those surly prejudices which chastised even Dr. South for his wit, it would have protected Sedgwick. But, the circumstance of Sedgwick being a Puritan, roused Wood's malignity to the utmost ; he, there- fore, regarded and represented him as, on account of his pohtics, he did the father and tutor of John Locke, as fanatical. Sedgwick, after all, notwith- standing some blemishes, was a man of distin- guished excellence : * were nothing more known of him than that he was chaplain to the renowned « Ath. Oxon. vol. iii. p. 1090. 4to. 1817. ^ Ut supra. It is pleasant to notice, that Dr. Wordsworth, in his Ecclesiastical Biography, has not followed Mr. Thirlwall's example. * See Brook's Lives of the Puritans, vol. iii. p. 295. b2 Lord Verc, of Tilbury, and Hale's tutor, his me- mory would be sufficiently embalmed. While at Oxford, Hale became so enamoured of stage entertainments, as almost wholly to forsake his studies : the gravity of his deportment, for which he had been remarkable, was abandoned ; a fondness for dress succeeded ; and he delighted much in company. It is said, however, and it furnishes no slight encomium upon his education, that, although addicted to many youthful vanities, he preserved his purity and great probity of mind. Scarcely were the bonds of early discipline thus slackened, than he gave full scope to his constitu- tional vigour ; and the attractions of gymnastic ex- ercises became so dominant, as to threaten an entire disregard of the charms of literature. In proof of the proficiency he made in fencing, the following incident has been mentioned, and it demands attention, as direct evidence of his good-nature, and as an illustration also of that abhorrence which seems to be involved in the due hatred of flattery. One of his instructors persisting that he could teach him no more. Hale regarded the assertion as insincere ; and, to prove it, promised the flat- terer, who was his tenant, the house he lived in if he could hit him a blow upon the head. As might have been expected, the master succeeded ; and so satisfied was the chivalrous youth with the discovery, that, in spite of the indiscreet nature of the engagement, he freely performed it. By no unnatural transition, Mr. Hale's thoughts were now, for a time, turned to military affairs ; and lais tutor, Sedgwick, having engaged to attend Lord Vere to the Low Countries, he determined to accompany him " to trail a pike" in the army of the Prince of Orange. The resolution was unex- pectedly, but very happily, frustrated. Circumstances connected with a law-suit, which involved part of liis estate, led him to London, and brought him into the society of his counsel, Mr. (afterwards Serjeant) Glanville.^ That eminent man, struck with his cKent's clearness of intellect, soHd judgment, and other indications favourable to legal studies, recommended them to his attention. At first the subject was irksome, for Mr. Hale felt an aversion to lawyers ; he regarded them as a barbarous race ; and as unfit for any thing be- yond their own profession. The learned Serjeant's prudence and candour, nevertheless, idtimately prevailed ; and that entire change in the pursuits of his young acquaintance, which he so much de- sired, was efi^ected. It seems necessary to remark here, that before the period just alluded to, the good efiects of Hale's early disciphne had begun once more to appear ; reflection upon past indo- lence and vanity had produced considerable regret ; and, under a conviction often alluded to in his writings, how much the one and the other had arisen from inordinate attachment to plays, he had resolved, on quitting college for the metropolis, never to enter a theatre ; a resolution which, in the letter of advice to his grandchildren,'' hereafter quoted, he tells us he faithfully kept. 5 See Note A. « See Chap. XIII. post. CHAPTER II. A.D. 1629, TO HIS CALL TO THE BAR. On the 8th of November, 1629, Mr. Hale was admitted a student of Lincohi's Inn ; and under the deepest impression of time abeady lost, he at once brought to bear upon his books the whole energy of his powerful mind. So intense was his ardour, that difficulties only stimulated him to exertion : for a while ^ he studied at the rate of sixteen hours a day ; and not only threw aside his gay attire, but sunk, unhappily, into the opposite extreme. So unlike a gentleman did he become in his personal appearance, as actually, on one occasion, to be impressed for the king's service. His retreat from vain company was more gradual: not, in fact, till he was driven to it by a sad, though to him felicitous,^ occurrence. Having joined some young men in a convivial party out of town, one of their number, notwith- standing all Mr. Hale's efforts to prevent it, indulged in wine to such a degree, as to become insensible ; and, at length, apparently dead. Mr. ' Burnet says /or many years; but that statement appears to have been too unqualified. See post, Note E E. a Note B. Hale retired to another room; and having shut the door, prayed to Him " who seeth in secret," that his friend might be restored, and that the countenance given by himself to such excess might be pardoned. He vowed also against the indulgence in such companionship in future, and that he would not even drink a health. His friend recovered, and the vow was performed, occasionally to the inconvenience and reproach of its framer ; for, in after days, when drinking the " Kiyiy's Health" was deemed a distinguishing mark of loyalty, Mr. Hale was sometimes uncivilly treated because of his refusal to observe the ceremony. That change being now wrought which made virtuous attainments thenceforth the main objects of his desire and effort, he was well able to endure both the opposition and the scorn of men: his late associates were forsaken without regret ; and he industriously divided his time between the sacred occupations of piety, professional duties, and general science. So uniform was he in the former, as during six-and-thirty years not to have failed once in going to church on the Lord's-day : he made the observation, when his attendance was first interrupted by an ague ; and he reflected upon the circumstance with grateful acknowledgments for God's great goodness. It is uncertain at what time he composed that interesting summary of " Rules," which, though intended merely for private use, has been scarcely less admired than Jeremy Taylor's elaborate Treatise on " Holy Living ;" but, follomng the 8 path marked out by Bishop Burnet, it will be best perused in this connexion. Any disposition the reader may feel for criticism, will yield, it may be hoped, to those inspiring traces which it reveals of devout elevation ; to that earnest seriousness which ought to characterize all such as, fully alive to present evils, are intent upon the momentous concerns of eternity. MORNING. I. To lift up the heart to God, in thankfulness, for renewing my life. II. To renew my covenant with God in Christ : 1 . By renewed acts of faith, receiving Christ, and rejoicing in the height of that relation. 2. Reso- lution of being one of his people, doing him alle- giance. III. Adoration and prayer. IV. Setting a watch over my own infirmities and passions, over the snares laid in our way. Perimus licitis. DAY EMPLOYMENT. There must be an employment — two kinds : — I. Our ordinary calling, to serve God in it. It is a service to Christ, though never so mean, Coloss. iii. Here, faithfulness, diligence, cheer- fulness. Not to overlay myself with more business than I can bear. II. Our spiritual employments. Mingle some- what of God's immediate service in this day. REFRESHMENTS. I. Meat and drink, moderation, seasoned with somewhat of God. II. Recreation: 1. Not our business. 2. Suit- able. No games, if given to covetousness or passion. IF ALONE. I. Beware of wandering, vain, lustful, thoughts; fly from thyself, rather than entertain these. II. Let thy solitary thoughts be profitable ; view the evidences of thy salvation, the state of thy soul, the coming of Christ, thy own mortality; it will make thee humble and watchful. COMPANY. Do good to them. Use God's name reverently. Beware of leaving an ill impression of ill example. Receive good from them, if more knowing. EVENING. Cast up the accounts of the day. If aught amiss, beg pardon. Gather resolution of more vigilance. If well, bless the mercy and grace of God that hath supported thee. Mr. Hale's habits soon attracted the attention of Sir WilHam Noy, afterwards Attorney General. That distinguished man, whom James Howell's facetious statements^ have rendered additionally 5 Familiar Letters, vol. i. p, 261. 12mo. 1655. b3 10 celebrated, often called upon him, directed hk reading, and occasioned him, by his kindness, the appellation of Young Noy. It was his happiness to obtain, likewise, the notice and friendship of the immortal Selden ; of Mr. Vaughan, afterwards Lord Chief Justice of the Common Pleas ; and of " the most reverend, learned, humble, and pious " ^ Dr. Usher, the Lord Primate of Ireland. Under the eye and patronage of these renowned individuals, he prosecuted his studies with increased enthusiasm and diligence. He kept the hours of the hall in term time, and seldom put himself out of commons during the vacation. He took nothing upon trust ; and, like his friend the Attorney General, was unwearied in searching records:^ he made collections, moreover, out of the books he read, and, mingling them with his own observations, digested them into a common- place-book : a plan of procedure which, whatever objection may be urged against it, as sometimes managed, has had the sanction, and been recom- mended by the example, of not a few of the most illustrious men. The volume referred to now enriches the Library of Lincoln's Inn. One of the Judges who borrowed it from its compiler, declared that, although composed before Mr. Hale was called to the bar, no lawyer in England could have done it better. Having surmounted the difficulties of his pro- * Reliq. Baxter, p. 206. fol. 1696, ' Familiar Letters, tit supra. 11 fession, he at once extended his inqmries. The civil law,^ arithmetic, some branches of the mathe- matics, and natural philosophy, medicine, anatomy, surgery, ancient history, and chronology, and, especially, divinity, were severally subjected to the most inquisitive investigation. So great was his mental vigour, that he regarded philosophical and mathematical pursuits as diversions — in which, when weary with studying law or theology, he found recreation. As his studious pains and exemplary deport- ment, as well as the patronage he received, were known, it is not surprising that he should have become the theme of applauding conversation : and that he was spoken of, as likely to rise. A draper, with whom, in bargaining for a " new suit," he differed about the price, told him he should have the cloth for nothing, if he would promise him lOOl. when Lord Chief Justice of England. The offer was of course declined, but the draper lived to see his customer advanced to that high dignity. « See Note C. 12 CHAPTER III. FROM HIS CALL TO THE BAR, TO A.D. 1648. In what year Mr. Hale was called to the bar, is doubtful ; nor can it, because of the imperfect state of the earlier records of Lincoln's Inn, be ascertained. It was certainly not long prior to the commencement of those unhappy feuds, from which there was no refuge, and which issued, as is well known, in results the most disas- trous and solemn. For some time before the general agitation reached its climax, it had been no easy matter for a man either to preserve his integrity, or to live securely. But then the diffi- culty was increased a thousand fold ; and few more keenly felt it, or deplored it with a deeper sorrow, than the subject of this biographical record. In his " Discourse of Religion \" to mention no other of his writings, there is, in spite of the feverish excitement which so universally prevailed, the calmest, and, on that account, the most affecting reference to the subject ; he seems to have been charmed by the almost universal perturbation into " quiet thoughts," — just as Walton eloquently 1 Works, vol. i. p. 306. 13 supposed some persons to be affected by a recital of the " spiritual conflicts" of George Herbert. Having observed, in the " Life of Pomponius Atticus," how a season of uncommon distraction was spent by him, not merely free from danger, but without the least blemish to his character, nay, with universal esteem, Mr. Hale selected him^ as his pattern: and observing that, besides those virtues which are necessary to all men, and at all times, there were two things to which that Roman citizen was particularly indebted ; the one, en- gaging in no faction, and meddling in no public business ; and the other, a constant favouring and relieving those that were lowest, — he determined to guide himself by the same rules. The high reputation he had at this compa- ratively early period of his history attained, is demonstrated by the extent and magnitude of his practice. Burnet says, that he was one of the counsel assigned to the Earl of Stralford on his arraignment in the year 1640: though it has been accurately noticed by Mr. Sergeant Runnington,^ that there is no evidence of it from the " trial" itself. There were, however, such allusions made by Hale in another case of treason, where he ivas engaged, as confirm the bishop's assertion,'* and upon which, in conjunction with that testimony, the reader may, it is thought, rely. a See Note D. ^ Life of Sir M. Hale, prefixed to the History of the Common Law, p. 5 ; and see Hargrave's State Trials, vol. i. p. 759. * State Trials, vol. ii. p. 160. 14 Whether Hale took any part in the loyal offer of services which was now made by the members of the inns of court, it is impossible to affirm. The probability is, that he did. But whether it were so or not, his loyalty is no more a matter of correct doubt than whether he preferred the Church of England to any other section of Christendom. Wood, obviously with a view to make him, if possible, disloyal, stated that, in 1643, he took " the covenant," and appeared several times, as he had often been informed, with other lay persons, among the assembly of divines.^ But this representation rests upon no other testi- mony. Burnet is silent ; nor is it mentioned by Roger North. Without, therefore, denying or admitting it, and without attempting to justify the test itself, which, as a test, appears unjustifiable, and, according to Baxter, who took it and re- pented, " a snare," also, " to the conscience ;" still its leading featvu'e was well calculated to make a deep impression upon such a mind as Hale's. Its avowed design, as to England and Ireland, was " a reformation of religion in doctrine, wor- ship, discipline, and government, according to the word of God, and the example of the best re- formed churches."** On the supposition, for a moment, that Wood's account is correct, it will not be amiss for those who • feel more inclined to censure than approve, to "take" (the counsel is Mr. Thirlwall's) "a sober and dispassionate survey of the times and cu'cum- * Ath. Oxon. vol. iii. p. 1091. « See Note E. 15 stances in which the subscription was called for. If," observes that reverend gentleman, "he refused, he was deprived of the privilege of exercising his profession, in which he was advancing to fortune and celebrity by rapid strides. He could not, therefore, be disposed to take his measures without revolving in his mind the very serious alternative which was presented to his choice. He was not unwilling to abridge the prerogative of the king, and reconcile it with the liberties of the peoj^le ; he could feel no difficulty in joining with parlia- ment to a limited extent ; and whilst they still proclaimed their allegiance to the king, and respect for his person and authority, he consoled himself with the prospect of an amicable adjustment be- tween the crown and parliament, and the esta- blishment of a constitution that would balance the just rights of the king mth the inahenable privi- leges of the subject. Of this the covenant afforded a satisfactory pledge. He saw in it an express acknowledgment of the sovereign's rights, and the elements of national peace and concord. His love for his country, loyalty to the king, and attachment to a free constitution, would dispose him to give the most favourable construction to an instrument which, apparently, led to such important and happy consequences. The mere form and outward struc- ture of the Church, always appeared to him an object of a secondary nature."' Mr. Hale, it is worthy of remark, had no scruples about the doctrine of " divine right," in 7 Works, vol. i, p. 130. 16 reference to any "form of government;"® a fact sufficient, in the absence of every thing else, to account for his taking "the covenant," if such were really the case. " It is incumbent," he writes, " upon him that affirms a divine right, to prove these two things — That some determinate form of government is of divine institution ; and, that the form for which he contends, is that form which is so. For, if he doth only the former, and not the latter, his second assertion contradicts and destroys his first asser- tion ; for it were ridiculous to say there is a form ,of government of divine institution, and yet he knows not what it is. We will, therefore, suppose the assertion to be of episcopal, or presbyterial, or congregational government ; and of all, or any of these, we say there is 710 evidence of such divine institution. " Although the primitive practice, since the apostles' times, seems to be episcopal, yet, since the reformation from the papacy, many churches, sound in their professions of the truth, have used a presbyterial form of government, being most con- sistent with the constitution of the time and places of such reformation, as the French, the Dutch, the Swiss, the Genevan, and others ; and it were hard to censure either the one or the other for schism, or an apostasy from an indispensable institution, when, doubtless, they were the true churches of Christ, who might, on all hands, challenge an 8 Orior. MS. 17 interest in that promise of his, ' that he would be with them to the end of the world.' " Under both forms, men of singular piety, learning, and soundness in the truth, have been brought forth, to the honour and glory of God, and the profession of the christian rehgion. " Every man must needs agree, that these external forms are but in order to a greater end ; the shell, or the corners of badger skins, to the tabernacle ; the mint and cummin, in comparison of the true and real kingdom of Christ in the soul ; such as, without the latter, are but empty shells and forms ; and the latter, as it may be, and hath been, with- out this external formality, so it is infinitely be- yond it, and therefore, certainly, the disputes and controversies about these external forms of govern- ment can no way countervail the neglect of that inward, powerful, and sovereign kingdom of Christ in his church and people, by his Spirit subduing the heart to a wilhng obedience to his sceptre and will. " It is most apparent, that the affixing of the seal of the King of heaven to any form of govern- ment, without a commission from him, is a pre- sumption and crime of a high nature, and such as is derogatory to his glory and truth, in a very high degree ; and therefore men had need be careful how they coin their own conjectures and imagina- tions, or it may be their own designs, interests, and afiectation of power, with the stamp of a divine authority ; and so much the rather, because, if detected of falsity (as it is impossible for all the 18 claims of the several pretenders to be true), the damage that comes to religion thereby is scarcely reparable. " The several claims of divine authority, in the several pretenders to ecclesiastical government, under differing shapes, namely, the papal, the pre- latical, the presbyterian, the congregational, and the controversies concerning them, have been the great instruments of disquietude in Christendom ; the great scandal of religion ; the great breaker of clu'istian charity amongst the professors of the same Christ ; the great occasion of effusion of christian blood, and embroiling of states and king- doms in civil wars ; the great upholders of tyranny over the consciences of men, in points dogmatical and practical, upheld to maintain the credit and infalhbility of their cause ; and which is worse, if it may be worse than all the rest, the canker that hath eaten out the heart and life of true religion, Christianity, and the power of godliness in the hearts and lives of men, and overthrown the true kingdom of Christ when the pretence is to establish it ; so that, if the Son of God should now come to judgment, and should look for faith, humility, self-denial, heavenly-mindedness, charity, gentle- ness, contempt of the world, waiting for his second appearing to judgment, and the fruit of the seeds which his divine doctrine and Spirit hath sowed amongst mankind ; instead thereof, nothing but factions, pohcies for establishing power and great- ness in the ministers, with uncharitableness, tearing one another for the earth, and the things of the 19 earth ; and all religion turned into nothing but professions of distrust, forms of governments, and zeal for that, and new hard names and titles of pontifical, prelatical, presbyterial, and such words of distinction and dissemination. Surely we have great cause to fear that the envdous man hath sown the seeds that produce this kind of crop, who, if the true power and efficacy of that inward king- dom of Christ be laid aside, cares not what new names be taken up, under what pretences soever, so they banish peace and goodness from the world." ^ Such being his recorded sentiments, the obser- vation made by Mr. Thirlwall becomes adcHtionally important. " Neither the letter nor the spirit of the covenant, forced upon Mr. Hale a subscription to unscriptural articles of faith, nor even prescribed the use of the Common Prayer, and the Liturgy of the Church of England. Though it was not without a degree of violence to his conscience, he renounced the jurisdiction of the bishop; yet he could discover, engrafted upon the primitive con- stitution, superadditions of human policy, which moderated, in a considerable degree, his admiration of its excellency and purity. But, in examining this article of the covenant more critically, his mind found a further reHef from observing, that the ' extirpation of prelacy' was connected with, and qualified by, a subsequent sentence, which was evidently inserted for the purpose of removing the scruples, and satisfying the consciences, of the moderate Churchman." •" 9 Hale, Orig. MS. i» Works, vol. i. pp. 130, 131. 20 Hale, no doubt, well knew what had passed upon the topic last mentioned in the Westminster synod ; and that the phraseology of the covenant, too, was altered prior to its being offered for signature by the nation, so as to meet the objec- tions started, during the debate, by those vene- rable men, who declared their judgment to be for the ancient, moderate episcopacy. Nor could he have been a stranger to the tender made of it to the House of Lords, with this public explication — that by the word " prelacy," and to which extir- pation was attached, was not meant all episcopacy, but only the form there described." Hence, in all probabihty, it was, that so many of the clergy took the covenant. Some of them filled dignified situations after the Restoration ; and it does not appear that any of them were questioned respect- ing their conduct. Mr, Lodge pronounces the league a " vile compact ;" but he asserts, that it was presently enthusiastically subscribed by the entire popula- tion of the capital and its vicinity ; and, before the lapse of many weeks, by that of nearly the whole of the kingdom. '^ It is not unworthy of observation, that Monk himself, "the great instaurator," was included in the statement just made. He took the covenant, and, what is more, accepted a commission under Cromwell against the Scots. But neither the one circumstance, nor the other, prevented the king's " See Reliq, Baxter, p. 48, &c. 12 Illustrious Portraits. Life of Charles the First. confidence in him, nor at all hindered a reverend vindicator from asserting his claims, because of eminent ser%dces, to the ready celebration of ** un- doubted virtues."'^ And surely the claim, were it even more certain than it is, that he was in the same condemnation,^* may be made with equal force, and for the same reason, on behalf of Lord Hale. His " eminent services," and his " \irtues," are as little ques- tionable as those of Monk ; and his title to a favourable construction is, to the full, as good. It w^as Hale himself, and men of the same description, who aided Monk in the accomplishment of the "Restoration;" an event, indeed, "which," although he almost exclusively acquired the honour, "it was impossible to prevent." '^ In 1644, on the arraignment of Archbishop Laud, Mr. Hale was assigned one of his counsel ; a fact, with other occurrences yet to be mentioned, which, whether the covenant was taken by him or not, completely weakens the force of Wood's state- ment. As the senior, Mr. Hern led upon the trial, and ably contended, that nothing which " his Grace had either said, or done, was treason by any known established law of the kingdom." The argument has been fully reported ; ^^ and, on the authority of Lord Chancellor Finch, it is to '^ See Dr. Skinner's Life of the Duke of Albemarle, with a Preface, by the Rev. William Webster, M. A. 8vo. 1723. 1* See Note F. '^ Stuart on the Government of England, p. 30. " The State Trials, p. 938. 22 be attributed to Hale, the gentleman who deli- vered it being unable to argue : " a circumstance which occasioned a recent biographer of Hale to remark, that, although Hern could not argue, he could make a witty reply ; for when Serjeant Wilde, in answer to the speech, observed that they did not allege that any one crime of Laud's amounted to high treason, but that all his misde- meanours, by way of accumulation, made many grand treasons, Hern answered — " I crave yovu" mercy, good Mr. Serjeant; I never understood before this time that two hundred couple of black rabbits would make a black horse." ^^ Conspicuous as Mr. Hale's exertions were, when thus engaged in opposition to the Parliament, he seems to have gained the fullest confidence of its members, and, on various occasions, his services were sought by them; he was even nominated by the parliamentary party to assist, as counsel, the commissioners who had to treat with those of the king as to the reduction of Oxford : and every energy he possessed was put forth to save that splendid city from destruction.^^ We next find him retained for the Oxonians agaiiist the parliament on the questions mooted with reference to the celebrated "visitation" of the University ; and Walker specially notices the " noble defence" which Hale and his coadjutors made.2'> 17 The State Trials, p. 938. 18 Lives of Eminent British Lawyers, by H. Roscoe, Esq. p. 415. 19 Works. Appendix, vol. i. p. 132. 2" Suflferings of the Clergy, p. 130. fol. 1714. 23 Afterwards, he appears as counsel for the eleven members of parliament,^^ who, in 1647, becoming obnoxious to Cromwell, were impeached by the army, and suffered a temporary banishment. But all the foregoing testimonies, valuable as they are to Hale's integrity and talents, are echpsed by his employment on behalf of King Charles the First, when that infatuated monarch, in the year 1648, was brought to trial. " And," says Burnet, honestly exulting in Hale's loyalty as weU as honom-s, " he would have pleaded for him with all the courage so glorious a cause ought to have inspired, but was not suffered to appear ; because the king refusing, as he had good reason, to submit to the court, it w^as pretended none could be admitted to speak for him." Until lately, this record has been held true. But Mr. Thirlwall, as editor of the works already cited, questioning it, and, in the opinion of the Monthly Reviewer,^^ with good reason, a few obser- vations shall be submitted. Mr. Thirlwall's scepticism seems to rest upon the bishop's statement being unconfirmed ; and a difficulty in supposing, that if Hale had been employed as counsel to Charles, such unbroken silence would have been preserved upon the sub- ject by all his contemporaries. The writers Mr. Thirlwall had in view were "Wood and North ; — the one, " though it fell directly in his way, does not," he says, " venture 2' Works. Appendix, vol. i. p. 132. ^2 Monthly Review, vol, lii. p. 405. 24 to assert the fact ;" and the other, " it may be presumed," he adds, " would have scarcely passed it over without some remark." In this representation, it seems to have escaped the critic, that the notice taken of Hale by both those authors appeared subsequently to Burnet's Memoir ; and that, as both wrote with a view of detracting from, and with the most marked hos- tility to, Hale's reputation, their silence, instead of impeaching the bishop's testimony, confirms it. If Hale had not been assigned counsel to the king, the keen inquisitors referred to, would gladly have seized so fine an opportunity for contradiction. It is easy to perceive from Mr. Thirlwall's observations, that, notwithstanding the avowal he makes of a high and laudable admiration of Hale, his eyes, at the time he wTOte, were dazzled with the astonishing talents and acquirements so often ascribed to Charles ! The king, it may be remembered, though no lawyer professed, claimed the knowledge of " as much law as any gentle- man in England."^'' Perhaps Mr. Thirlwall was acquainted with that circumstance ; and, if so, it is the more intelligible how his imagination was seduced into the conjecture, that no lawyer was applied to. But did it not occur to him, that how much soever such a view of the matter may savour of respect for the " blessed martyr," it pays the very poorest compliment to his understanding ? The silence of Mr. D' Israeli 2^ State Trials, vol. i. p. 988 ; and Mr. Amos bas notired it in one of the notes which enrich his elaborate edition of Fortescue de Laudibus Legum Angliae, p. 18. Svo. 1825. 25 upon the point, whose zealous concern for the monarch's glory would prevent inattention to any circumstance, however trifling, that could increase it, may fairly be presumed to betoken such an opinion. Indeed, there is some difficulty in imagining the amount of ignorance, conceit, and presumption, necessary to produce in any individual, how illustrious soever, a disregard to self-interest so entire, as the notion now under consideration supposes. But why, it may be asked, any surmisings or suspicions at all upon the subject, especially at this period of time ? Why an effort to exhibit, not indeed " negative evidence," but unsupported hy- pothesis ; and that in the face of direct assertion, never before doubted? If the intention were to " honour the king," it surely was mistaken zeal : if to refute the bishop, hypercritical absurdity could scarcely be more glaring. It ought not to be forgotten here, how very expressly Burnet, in the preface to his Life of Hale, alludes to the authentic sources^'* whence his information was derived ; and he then adds, " I am under no temptation of saying any thing but what I am persuaded is exactly true ; for where there is so much exact truth to be told, it were an inexcusable fault to corrupt that, or pre- judice the reader against it, by the mixture of falsehoods with it." Mr. Hargrave, whose erudition and accuracy are " One of these, and there could not be better, is hereafter specified — Robert Gibbons, Esq. C 26 well known, so far from doubting whether Hale enjoyed the distinction thus questioned, adopts the bishop's statement : ^^ and another acute and able lawyer, Mr. Serjeant Runnington, not only echoes it, but conjectures, with the greatest probability, that Hale furnished " the objections which Charles so pointedly appHed."^^ 25 See Note G. ^e See Note H. 27 CHAPTER IV. FROM A.D. 1648 TO A.D. 1653. No sooner was the sentence ac^ainst Kinar Charles executed, than the regal office was for- mally abohshed by — if the relics of the parhament, ludicrously styled the Rump, deserve to be so designated — the House of Commons. A free commonwealth was for the present declared to be the form of government. The coin was stamped on one side with the arms of England, between a laurel and a palm, with this inscription, — " The Commonwealth of England ;" and on the other, with a cross and a harp, ha\'ing this motto, — " God with us ;" whence arose the witty observation, that God and the Commonwealth were not both on a side.^ In addition to these alterations, the oaths of allegiance and supremacy were abolished, and a new one appointed, called the Engagement, obli- ging those who complied to be true and faithful to the Commonwealth of England, without a king, or house of lords. Such as refused the oath were declared incapable of holding any place, or office 1 Neale's History, vol. iv. pp. 1, 2. 8vo. 1822. c2 28 of trust ; without the engagement, says Baxter, who was its invincible opponent, no man could have the benefit of suing another at law ; a regulation, he drily notices, adapted to keep men a little from contention, and to mar the lawj'er's trade.^ Hale, at this early period of his history, had made progress in those " Pleas of the Crown," upon which his fame, as a lawyer, materially rests ; but the distressing circumstances of the country obliged him, for a season, to lay them aside. To prevent their falling into ill hands, he hid them behind the wainscotting of his study, not, however, without observing — and there is a melancholy tone of loy- alty, not to say of tender and almost prophetic anticipation, in the language — that there would be no more occasion for them until the king should be restored to his right. To detail the incessant changes, severities, and commotions, of the eventful period to which we have arrived, would be foreign from the present design. Suffice it to observe, therefore, that, as well to maintain the new regimen, as to strike terror into the cavaliers, and to check every move- ment of the royalists, the rigour and resolution of those who guided the helm were terribly con- spicuous. The Duke of Hamilton, the Earl of Holland, and the Lords Capel and Craven, were early brought to trial, as enemies of the Common- wealth. For each of them Mr. Hale appeared as counsel. The elaborateness, as well as the length 2 Reliq. Baxter, p. 46. 29 of his speech, in the former of these cases, has been specially noticed ; ^ and such was the power of his argumentation in the latter, that the attorney- general threatened him for appearing against the government. To whom he answered, that he was pleading in defence of those laws which they de- clared they would maintain and preserve ; that he was doing his duty to his client ; and that he was not to be daunted with threatenings. The time whe7i Hale took the Engagement does not appear, though the fact of his having done so is certain : he publicly avowed it on the trial of Christopher Love ; * and it may be noticed, in passing, that, as in January 1651, he was appointed, by the parliament, one of the committee for con- sidering the reformation of the law,* it must have been prior to that undertaking. How much modern senators have been indebted to the results of that appointment has never yet been stated ; but an examination of the subject would discover obHgations of no ordinary magnitude. It is observable that Burnet takes no notice cf the Engagement, any more than of the law-reform commission. The probability is, that he regarded the compliance as no reflection either upon Mr. Hale's character or principles. Notliing can be * State Trials, vol. ii. p. 5. The plea framed by Hale, is printed in Burnet's Memoirs of the Dukes of Hamilton, fol. 167G. * See the State Trials, vol. ii. p. 159. * Works by Thirlwall, vol. i. p. 140. See Whitelock's Memo- rials, pp. 520, 521, fol. 1732. so plainer than that Hale himself so viewed the mat- ter; as scarcely implying, to borrow the suitable phraseology of an able modern historian, more than such an expression of a purpose to live peaceably and inoflensively under the present administration,^ as is ordinarily required by all governments.' Mr. Thirlwall, nevertheless, expresses himself much at a loss for reasons to exculpate Hale from the charge of pusillanimity, selfishness, or versatihty of principle f a thing the more surprising, since he acknowledges that the uniform tenor, and general complexion, of Hale's whole liistory, his character, his acknowledged reputation for learning, integrity, and piety, and his own statements, all forbid the supposition that he was not a loyal and patriotic man, strictly conscientious, as well as eminently wise, and tremblingly alive to the sanctity of an oath ; one that, rather than wound the peace of his conscience, would have submitted to the bitterest privations.^ In fact, the question before us, like all others of a similar nature, will, of necessity, be differ- ently viewed by different persons. Violent poli- ticians will indulge their theories, and nothing can prevent them from censuring or commending accordingly : while others, more moderate and impartial, will, in the absence of accurate know- ^ One of the tracts published at that period, is entitled " A Persuasive to a mutual Compliance under the present Govern- ment." 4to. 1652. ' See Note I. » Hale's Works, vol. i. p, 138. Works, vol. i. p. 139. See Note J. 31 ledge of the governing reasons and motives, not only be slow to pronounce an unfavourable judg- ment, but will give such men as Hale credit for acting, amidst such pressing difficulties as a civil war creates, according to the genuine dictates of conscience. They will associate the decision of Hale, for instance, with numerous influences ; with the avowed pattern of his conduct — Pomponius Atticus — who anxiously endeavoured after " tran- quillity in difficult and troublous times," and to " steer himself between the rocks of contesting factions mthout shipwreck ;" '" with that regard to the welfare of the community, which marked him " as a friend to human nature, and mankind in general ;"" with his notions of obedience to ex- isting authority, which his manuscripts show to have extended very far, even as to things mdif- ferent in matters sacred ; and with the current and popular opinion, not to mention the example of multitudes around him, who were men of the truest patriotism, and distinguished alike for their piety, their talents, and their learning. Even Archbishop Bancroft, in the deservedly popular tract which he wrote against the then prevailing party, admits that something is to be conceded to the place, and time, and person; and exhibits those distinctions which are obvious to impartial reflection, so as fully to meet Hale's case.'^ Dr. Johnson has noticed Dryden as the pane- »9 Works, vol. i. p. 467. " lb. vol. i. p. 465. >» Modern Policies, 12mo. 1652. Principle VI. 32 gyrist of the *' usurpation," and " of his most sacred majesty King Charles the Second," happily restored ; but he adds, with characteristic good sense, " if he changed, he changed with the nation," so that " the reproach of inconstancy produced neither hatred nor disgrace." '^ Sir Michael Foster, in his observations on some passages in the writings of Hale, relative to the principles on which the revolution was founded, noticed his having taken the Engage- ment, " when of high rank at the bar." He remarked, also, that, in the sense of those who imposed it,^^ it was plainly an engagement for abolishing kingly government, at least for sup- porting the abolition of it ; but he adds, and the observation goes a great way, with regard to those who took it, it might, upon the principles of Sir Henry Vane's case, have been easily im- proved into an overt act of treason against Kino; Charles the Second.^^ Now this we know was not done. Nay, Hale himself, immediately after the monarch's restoration, was not only no object of court censure, but was elevated, as we shall presently see, to one of the highest law offices ; a proof, if any were wanting, that those severe censures, in which a partial view of the 13 Works, vol. ix. p. 281. 12mo. 1816. " The Government admitted men to take it in their own sense. See Harris's Life of Charles II. vol. i. p. 58 ; 8vo. 1766. 15 Report of some proceedings on the Commission for Trial of the Rebels in the year 1746, and of other Crown Cases; to which were added, Discourses upon a few branches of the Crown Law. p. 402. fol. 1762. 33 question before us, if not settled prejudices, have led some to indulge, might have been spared. The arraignment by Cromwell's council, of the young and unfortunate Christopher Love, for trea- son, has already been alluded to. As a minister of the Presbyteri&n church, popular and generally beloved, the excitement produced by the occur- rence was considerable. The trial commenced June 20th, 1651 ; and the "plea against the charge and evidence" was entrusted to Mr. Hale. His efforts proved unsuccessful, and Love was beheaded; but it is impossible to peruse the narrative of the judicial proceedings,^^ which continued six days, without admiring the acuteness of Hale, his cau- tion, and his sohcitude, as well as his great energy and skill. In the " Clear and Necessary Vindication of Mr. Love's Principles and Practices,"" a tract written by himself only fourteen days before his death, he notices the ability displayed by his counsel ; and, as if peculiarly struck with it, attri- butes it to " divine assistance."'^ Upon all occasions, Mr. Hale discharged his professional duties with distinguished learning, fidelity, and courage ; so much so that he was, as we have seen, employed in many of the leading cases where the accused were obnoxious to the government — that government to wliich liis own submission was professed. Nor was he satisfied with mere professional exertions ; he often relieved tlie necessities of those for whom he was retained, and, considering the danger of the time, in a >6 Quarto, 1C