sure never to provoke any in particular by censuring or reflecting on their Actions for many that have Conversed much with him have told me they never heard him once speak ill of any Person He was imployed in his practice by all the Kings party He was assigned Council to the Earl of Strafford and Arch Bishop Laud and afterwards to the Blessed King himself when brought to the infamous Pageantry of a Monk Tryal and offered to plead for him with all the Courage that so Glorious a Cause ought to have inspired him with but was not suffered to appear because the King refusing as he had good reason to submit to the Court it was pretended none could be admitted to speak for him He was also Council for the Duke of Hamilton the Earl of Holland and the Lord Capel His Plea for the former of these I have published in the Memoires of that Dukes life Afterwards also being Council for the Lord Craven he pleaded with that force of Argument that the then Attorney General threatned him for appearing against the Government to whom he answered he was Pleading in defence of those Laws which they declared they would maintain and preserve and he was doing his duty to his Client so that he was not to be daunted with Threatnings Upon all these occasions he had discharged himself with so much Learning Fidelity and Courage that he came to be generally imployed for all that Party Nor was he satisfied to appear for their just Defence in the way of his Profession but he also relieved them often in their Necessities which he did in a way that was no less Prudent than Charitable considering the dangers of that time for he did often deposite considerable Sums in the hands of a Worthy Gentleman of the Kings Party who knew their Necessities well and was to Distribute his Charity according to his own Discretion without either letting them know from whence it came or giving himself any Account to whom he had given it Cromwell seeing him possest of so much Practice and he being one of the Eminentest Men of the Law who was not at all affraid of doing his duty in those Critical times resolved to take him off from it and raise him to the Bench. Mr. Hale saw well enough the Snare laid for him and though he did not much consider the prejudice it would be to himself to Exchange the easie and safer profits he had by his Practice for a Iudges place in the Common-Pleas which he was required to accept of yet he did deliberate more on the Lawfulness of taking a Commission from Usurpers but having considered well of this he came to be of opinion that it being absolutely necessary to have Iustice and Property kept up at all times It was no Sin to take a Commission from Usurpers if he made no Declaration of his acknowledging their Authority which he never did He was much urged to Accept of it by some Eminent Men of his own Profession who were of the Kings Party as Sir Orlando Bridgeman and Sir Geoffery Palmer and was also satisfied concerning the lawfulness of it by the resolution of some famous Divines in particular Dr. Sheldon and Dr. Henchman who were afterwards promoted to the Sees of Canterbury and London To these were added the importunities of all his Friends who thought that in a time of so much Danger and Oppression it might be no small Security to the Nation to have a Man of his Integrity and Abilities on the Bench and the Usurpers themselves held him in that Estimation that they were glad to have him give a Countenance to their Courts and by promoting one that was known to have different Principles from them Affected the Reputation of Honouring and trusting men of Eminent Virtues of what perswasion soever they might be in relation to publick Matters But he had greater Scruples concerning the proceeding against Felons and putting offenders to Death by that Commission since he thought the Sword of Justice belonging only by right to the lawful Prince it seemed not warrantable to proceed to a Capital Sentence by an Authority derived from Usurpers yet at first he made distinction between common and ordinary Felonies and offences against the State for the last he would never meddle in them for he thought these might be often legal and warrantable Actions and that the putting Men to Death on that account was Murder but for the ordinary Felonies he at first was of opinion that it was as necessary even in times of Usurpation to Execute Justice in those cases as in the matters of property For after the King was Murthered he laid by all his Collections of the Pleas of the Crown and that they might not fall into ill hands he hid them behind the Wainscotting of his Study for he said there was no more occasion to use them till the King should be again restored to his Right and so upon his Majesties Restoration he took them out and went on in his design to perfect that great Work Yet for some time after he was made a Iudge when he went the Circuit he did sit on the Crown Side and Judged Criminals But having considered farther of it he came to think that it was at least better not to do it and so after the Second or Third Circuit he refused to sit any more on the Crown Side and told plainly the reason for in matters of Blood he was always to choose the safer Side And indeed he had so carried himself in some Tryals that they were not unwilling he should withdraw from medling farther in them of which I shall give some instances Not long after he was made a Iudge which was in the year 1653 when he went the Circuit a Tryal was brought before him at Lincoln concerning the Murther of one of the Townsmen who had been of the Kings Party and was Killed by a Souldier of the Garrison there He was in the Fields with a Fowling piece on his Shoulder which the Souldier seeing he came to him and said it was contrary to an Order which the Protector had made That none who had been of the Kings Party should carry Armes and so he would have forced it from him But as the other did not regard the Order so being stronger than the Souldier he threw him down and having beat him he left him The Souldier went into the Town and told one of his fellow Souldiers how he had been used and got him to go with him and lie in wait for the Man that he might be revenged on him They both watched his coming to Town and one of them went to him to demand his Gun which he refusing the Soldier struck at him and as they were strugling the other came behind and ran his Sword into his Body of which he presently died It was in the time of the Assizes so they were both Tried Against the one there was no Evidence of forethought Felony so he was only found
the Nation which contrary to the Expectations of the most Sanguine setled in so serene and quiet a manner that those who had formerly built so much on their Success calling it an Answer from Heaven to their solemn Appeals to the providence of God were now not a little Confounded to see all this turned against themselves in an instance much more extraordinary than any of those were upon which they had built so much His great Prudence and Excellent temper led him to think that the sooner an Act of Indemnity were passed and the fuller it were of Graces and Favours it would sooner settle the Nation and quiet the minds of the People and therefore he applied himself with a particular care to the framing and carrying it on In which it was visible he had no concern of his own but merely his love of the Publick that set him on to it Soon after this when the Courts in Westminster-Hall came to be setled he was made Lord Cheif Baron and when the Earl of Clarendon then Lord Chancellor delivered him his Commission in the Speech he made according to the Custome on such Occasions he expressed his Esteem of him in a very singular manner telling him among other things that if the King could have found out an honester and fitter Man for that Imployment he would not have advanced him to it and that he had therefore preferred him because he knew none that deserved it so well It is ordinary for Persons so promoted to be Knighted but he desired to avoid having that Honour done him and therefore for a Considerable time declined all opportunities of waiting on the King which the Lord Chancellor observing sent for him upon Business one day when the King was at his House and told his Majesty there was his modest Chief Baron upon which he was unexpectedly Knighted He continued Eleven Years in that place Managing the Court and all Proceedings in it with singular Justice It was observed by the whole Nation how much he raised the Reputation and Practice of it And those who held Places and Offices in it can all declare not only the Impartiality of his Justice for that is but a common Virtue but his Generosity his vast Diligence and his great Exactness in Tryals This gave occasion to the only Complaint that ever was made of him That he did not dispatch Matters quick enough but the great care he used to put Suits to a final End as it made him slower in deciding them so it had this good Effect that Causes tryed before him were seldom if ever tryed again Nor did his Administration of Justice lie only in that Court He was one of the principal Iudges that sate in Cliffords-Inn about setling the difference between Landlord and Tenant after the Dreadful Fire of London He being the first that offered his Service to the City for accommodating all the differences that might have arisen about the Rebuilding it in which he behaved himself to the satisfaction of all Persons concerned So that the suddain and quiet Building of the City which is justly to be Reckoned one of the Wonders of the Age is in no small Measure due to the great care which he and Sir Orlando Bridge-man then Lord Cheif Iustice of the Common-Plea's afterwards Lord Keeper of the great Seal of England used and to the Judgment they shewed in that Affair since without the Rules then laid down there might have otherwise followed such an endless train of vexatious Suits as might have been little less chargeable than the Fire it self had been But without detracting from the Labours of the other Iudges it must be acknowledged that he was the most instrumental in that great work for he first by way of Scheme contrived the Rules upon which he and the rest proceeded afterwards in which his readiness at Arithmetick and his skill in Architecture were of great use to him But it will not seem strange that a Iudge behaved himself as he did who at the Entry into his Imployment set such excellent Rules to himself which will appear in the following Paper Copied from the Original under his own hand Things Necessary to be Continually had in Remembrance I. That in the Administration of Iustice I am intrusted for God the King and Country and therefore II. That it be done 1. Uprightly 2. Deliberately 3. Resolutely III. That I rest not upon my own Understanding or Strength but Implore and rest upon the Direction and Strength of God IV. That in the Execution of Iustice I carefully lay aside my own Passions and not give way to them however provoked V. That I be wholly intent upon the Business I am about remitting all other Cares and Thoughts as unseasonable and Interruptions VI. That I suffer not my self to be prepossessed with any Iudgment at all till the whole Business and both Parties be heard VII That I never engage my self in the beginning of any Cause but reserve my self unprejudiced till the whole be heard VIII That in Business Capital though my Nature prompt me to Pity yet to consider that there is also a Pity due to the Country IX That I be not too Riged in matters purely Conscientious where all the harm is Diversity of Iudgment X. That I be not biassed with Compassion to the Poor or favour to the Rich in point of Iustice. XI That Popular or Court Applause or Distaste have no Influence into any thing I do in point of Distribution of Iustice. XII Not to be sollicitous what Men will say or think so long as I keep my self exactly according to the Rule of Iustice. XIII If in Criminals it be a measuring Cast to incline to Mercy and Acquittal XIV In Criminals that consist merely in words when no more harm ensues Moderation is no Injustice XV. In Criminals of Blood if the Fact be Evident Severity is Iustice. XVI To abhor all private Sollicitations of what kind soever and by whom soever in matters Depending XVII To charge my Servants 1. Not to interpose in any Business whatsoever 2. Not to take more than their known Fees 3. Not to give any undue precedence to Causes 4. Not to recommend Councill XVIII To be short and sparing at Meals that I may be the fitter for Business He would never receive private Addresses or Recommendations from the greatest Persons in any matter in which Iustice was Concerned One of the first Peers of England went once to his Chamber and told him that having a Suite in Law to be tryed before him he was then to acquaint him with it that he might the better understand it when it should come to be heard in Court Upon which the Lord Cheif Baron interupted him and said he did not deal fairly to come to his Chamber about such Affairs for he never received any Information of Causes but in open Court where both Parties were to be heard alike so he would not suffer him to go on Whereupon his Grace for he was a
of the Leiger-Books of Battell Evesham Winton c. one vol. Seldeni Copies of the principal Records in the Red-Book in the Exchequer one vol. Extracts of Records and Treaties relating to Sea-affairs one vol. Records touching Customs Ports Partition of the Lands of Gil. De Clare c. Extract of Pleas in the time of R. 1. King Iohn E. 1. c. one vol. Cartae Antiquae in the Tower Transcribed in 2 vol. Chronological Remembrances extracted out of the Notes of Bishop Usher one volume stitched Inquisitiones de Legibus Walliae one vol. Collections or Records touching Knighthood Titles of Honour Seldeni 1 vol. Mathematicks and Fortifications one vol. Processus Curiae Militaris one vol. A Book of Honour stitched one vol. Extracts out of the Registry of Canterbury Copies of several Records touching proceedings in the Military Court one vol. Abstracts of Summons and Rolls of Parliament out of the Book Dunelm and some Records Alphabetically digested one vol. Abstracts of divers Records in the Office of first Fruits one vol. stitched Mathematical and Astrological Calculations 1 vol. A Book of Divinity Two large Repositories of Records marked A. and B. All those above are in Folio THe proceedings of the Forrests of Windsor Dean and Essex in Quarto one vol. Those that follow are most of them in Velome or Parchment TWo Books of old Statutes one ending H. 7. The other 2 H. 5. with the Sums two vol. Five last years of E. 2. one vol. Reports tempore E. 2. one vol. The Year Book of R. 2. and some others one vol. An old Chronicle from the Creation to E 3. one vol. A Mathematical Book especially of Optiques one vol. A Dutch Book of Geometry and Fortification Murti Benevenlani Geometrica one vol. Reports tempore E. 1. under Titles one vol. An old Register and some Pleas 1 vol. Bernardi Bratrack Peregrinatio one vol. Iter Cantii and London and some Reports tempore E. 2. one vol. Reports tempore E. 1. E. 2. one vol. Leiger Book Abbatiae De Bello Isidori opera Liber altercationis Christianae Philosophiae contra Paganos Historia Petri Manducatorii Hornii Astronomica Historia Ecclesiae Dunelmensis Holandi Chymica De Alchymiae Scriptoribus The black-Book of the New-Law Collected by me and digested into alphabetical Titles Written with my own hand which is the Original Coppy MATTHEW HALE The Conclusion THus lived and died Sir Matthew Hale the renouned Lord Cheif Justice of England He had one of the blessings of Virtue in the highest measure of any of the Age that does not always follow it which was that he was universally much valued and admired by Men of all sides and perswasions For as none could hate him but for his Iustice and Virtues so the great estimation he was generally in made that few durst undertake to defend so ingrateful a Paradox as any thing said to lessen him would have appeared to be His Name is scarce ever mentioned since his Death without particular accents of singular respect His opinion in points of Law generally passes as an uncontroulable authority and is often pleaded in all the Courts of Justice And all that knew him well do still speak of him as one of the perfectest patterns of Religion and Virtue they ever saw The Commendations given him by all sorts of people are such that I can hardly come under the Censures of this Age for any thing I have said concerning him yet if this Book lives to after-times it will be looked on perhaps as a Picture drawn more according to fancy and invention than after the Life if it were not that those who knew him well establishing its Credit in the present Age will make it pass down to the next with a clearer authority I shall pursue his praise no further in my own words but shall add what the present Lord Chancellor of England said concerning him when he delivered the Commission to the Lord Chief Iustice Rainsford who succeeded him in that Office which he began in this manner The Vacancy of the Seat of the Chief Iustice of this Court and that by a way and means so unusual as the Resignation of him that lately held it and this too proceeding from so deploreable a cause as the infirmity of that Body which began to forsake the ablest Mind that ever presided here hath filled the Kingdom with Lamentations and given the King many and pensive thoughts how to supply that Vacancy again And a little after speaking to his Successor He said The very Labours of the place and that weight and fatigue of Business which attends it are no small discouragements For what Shoulders may not justly fear that Burthen which made him stoop that went before you Yet I confess you have a greater discouragement than the meer Burthen of your Place and that is the unimitable Example of your last Predecessor Onerosum est succedere bono Principi was the saying of him in the Panegyrick And you will find it so too that are to succeed such a Chief Iustice of so indefatigable an Industry so invincible a Patience so exemplary an Integrity and so magnanimous a contempt of worldly things without which no Man can be truly great and to all this a Man that was so absolute a Master of the Science of the Law and even of the most abstruce and hidden parts of it that one may truly say of his knowledge in the Law what St. Austin said of St. Hieroms knowledge in Divinity Quod Hieronimus nescivit nullus mortalium unquam scivit And therefore the King would not suffer himself to part with so great a Man till he had placed upon him all the marks of bâ—unty and esteem which his retired and weak Condition was capable of To this high Character in which the expressions as they well become the Eloquence of him who pronounced them so they do agree exactly to the Subject without the abatements that are often to be made for Rhetorick I shall add that part of the Lord Chief Justices answer in which he speaks of his Predecessor A person in whom his eminent Virtues and deep Learning have long managed a contest for the Superiority which is not decided to this day nor will it ever be determined I suppose which shall get the upper hand A person that has sat in this Court these many Years of whose actions there I have been an eye and ear witness that by the greatness of his learning always charmed his Auditors to reverence and attention A person of whom I think I may boldly say that as former times cannot shew any Superiour to him so I am confident succeeding and future time will never shew any equal These considerations heightned by what I have heard from your Lordship concerning him made me anxious and doubtful and put me to a stand how I should succeed so able so good and so great a Man It doth very much trouble me that I who in comparison of him am but like a Candle lighted in the Sun-shine or like a Glow-worm at mid-day should succeed so great a Person that is and will be so eminently famous to all Posterity and I must ever wear this Motto in my breast to comfort me and in my actions to excuse me Sequitur quamvis non passibus aequis Thus were Panegyricks made upon him while yet alive in that same Court of Justice which he had so worthily governed As he was honoured while he lived so he was much lamented when he died And this will still be acknowledged as a just inscription for his Memory though his modesty forbid any such to be put on his Tomb-stone THAT HE WAS ONE OF THE GREATEST PATTERNS THIS AGE HAS AFFORDED WHETHER IN HIS PRIVATE DEPORTMENT AS A CHRISTIAN OR IN HIS PUBLICK EMPLOYMENTS EITHER AT THE BAR OR ON THE BENCH FINIS
Duke went away not a little dissatisfied and complained of it to the King as a Rudeness that was not to be endured But his Majesty bid him content himself that he was no worse used and said he verily believed he would have used himself no better if he had gone to sollicite him in any of his own Causes Another passage fell out in one of his Circuits which was somewhat censured as an affectation of an unreasonable strictness but it flowed from his Exactness to the Rules he had set him self A Gentleman had sent him a Buck for his Table that had a Trial at the Assizes So when he heard his Name he asked if he was not the same Person that had sent him Venison and finding he was the same he told him he could not suffer the Trial to go on till he had paid him for his Buck to which the Gentleman answered that he never sold his Venison and that he had done nothing to him which he did not do to every Iudge that had gone that Circuit which was confirmed by several Gentlemen then present but all would not do for the Lord Cheif Baron had learned from Solomon that a gift perverteth the ways of Iudgment and therefore he would not suffer the Trial to go on till he had paid for the present upon which the Gentleman withdrew the Record and at Salisbury the Dean and Chapter having according to the Custom presented him with six Sugar Loaves in his Circuit he made his Servants pay for the Sugar before he would try their Cause It was not so easie for him to throw off the importunities of the Poor for whom his Compassion wrought more powerfully than his regard to Wealth and Greatness yet when Justice was concerned even that did not turn him out of the way There was one that had been put out of a place for some ill behaviour who urged the Lord Cheif Baron to set his hand to a Certificate to restore him to it or provide him with an other But he told him plainly his fault was such that he could not do it the other pressed him vehemently and fell down on his knees and begged it of him with many Tears but finding that could not prevail he said he should be utterly Ruined if he did it not and he should Curse him for it every day But that having no Effect then he fell out into all the reproachful words that Passion and Despair could inspire him with to which all the answer the Lord Cheif Baron made was that he could very well bear all his Reproaches but he could not for all that set his hand to his Certificate He saw he was Poor so he gave him a large Charity and sent him away But now he was to go on after his Pattern Pomponius Atticus still to favour and relieve them that were lowest So besides great Charities to the Nonconformists who were then as he thought too hardly used he took great care to cover them all he could from the Severities some designed against them and discouraged those who were inclined to stretch the Laws too much against them He lamented the differences that were raised in this Church very much and according to the Impartiality of his Justice he blamed some things on both sides which I shall set down with the same freedom that he spake them He thought many of the Nonconformists had merited highly in the Business of the Kings Restauration and at least deserved that the terms of Conformity should not have been made stricter than they were before the War There was not then that dreadful prospect of Popery that has appeared since But that which afflicted him most was that he saw the Heats and Contentions which followed upon those different Parties and Interests did take People off from the Indispensable things of Religion and slackned the Zeal of other ways Good men for the substance of it so much being spent about External and Indifferent things It also gave advantages to Atheists to treat the most Sacred Points of our holy Faith as Ridiculous when they saw the Professors of it contend so fiercely and with such bitterness about lesser Matters He was much offended at all those Books that were written to expose the contrary Sect to the scorn and contempt of the Age in a wanton and petulant Style He thought such Writers wounded the Christian Religion through the sides of those who differed from them while a sort of lewd People who having assumed to themselves the Title of the Witts though but a very few of them have a right to it took up from both hands what they had said to make one another shew Ridiculous and from thence perswaded the World to laugh at both and at all Religion for their sakes And therefore he often wished there might be some Law to make all Scurrility or Bitterness in Disputes about Religion punishable But as he lamented the proceedings too rigourously against the Nonconformists so he declared himself always of the side of the Church of England and said those of the Separation were good Men but they had narrow Soules who would break the Peace of the Church about such inconsiderable Matters as the points in difference were He scarce ever medled in State Intrigues yet upon a Proposition that was set on foot by the Lord Keeper Bridgeman for a Comprehension of the more moderate Dissenters and a limited Indulgence towards such as could not be brought within the Comprehension he dispensed with his Maxime of avoiding to engage in Matters of State There were several Meetings upon that occasion The Divine of the Church of England that appeared most considerably for it was Doctor Wilkins afterwards promoted to the Bishoprick of Chester a Man of as great a Mind as true a Judgment as eminent Virtues and of as good a Soul as any I ever knew He being determined as well by his excellent temper as by his Foresight and Prudence by which he early perceived the great Prejudices that Religion received and the vast Dangers the Reformation was like to fall under by those Divisions set about that project with the Magnanimity that was indeed peculiar to himself for though he was much Censured by many of his own side and seconded by very few yet he pushed it as far as he could After several Conferences with two of the Eminentest of the Presbiterian Divines Heads were agreed on some Abatements were to be made and Explanations were to be accepted of The particulars of that Project being thus concerted they were brought to the Lord Cheif Baron who put them in form of a Bill to be presented to the next Sessions of Parliament But two Parties appeared vigorously against this Design the one was of some zealous Clergy-men who thought it below the Dignity of the Church to alter Laws and change Setlements for the sake of some whom they Esteemed Schismaticks They also believed it was better to keep them out of the Church than bring