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
THE Life and Death OF Sir Kt. SOMETIME LORD CHIEF IUSTICE OF His Majesties Court OF KINGS BENCH Written by GILBERT BURNETT D.D. LONDON Printed for William Shrowsbery at the Bible in Duke-Lane 1681. THE PREFACE NO part of History is more instructive and delighting than the Lives of great and worthy Men The shortness of them invites many Readers and there are such little and yet remarkable passages in them too inconsiderable to be put in a general History of the Age in which they lived that all people are very desirous to know them This makes Plutarch's Lives be more generally Read than any of all the Books which the ancient Greeks or Romans Writ But the lives of Hero's and Princes are commonly filled with the account of the great things done by them which do rather belong to a general than a particular History and do rather amuse the Reader 's fancy with a splendid shew of greatness than offer him what is really so useful to himself And indeed the Lives of Princes are either Writ with so much flattery by those who intended to merit by it at their own hands or others concerned in them Or with so much spite by those who being ill used by them have revenged themselves on their Memory that there is not much to be built on them And though the ill nature of many makes what is Satyrically writ to be generally more read and believed than when the flattery is visible and course yet certainly Resentment may make the Writer corrupt the truth of History as much as Interest And since all Men have their blind sides and commit Errors he that will industriously lay these together leaving out or but slightly touching what should be set against them to ballance them may make a very good Man appear in very bad Colours So upon the whole matter there is not that reason to expect either much truth or great instruction from what is written concerning Hero's or Princes for few have been able to imitate the patterns Suetonius set the World in writing the Lives of the Roman Emperours with the same freedom that they had led them But the Lives of private Men though they seldom entertain the Reader with such a variety of passages as the other do Yet certainly they offer him things that are more imitable and do present Wisdom and Virtue to him not only in a fair Idea which is often look't on as a piece of the Invention or Fancy of the Writer but in such plain and familiar instances as do both direct him better and perswade him more And there are not such temptations to biass those who writ them so that we may generally depend more on the truth of such relations as are given in them In the age in which we live Religion and Virtue have been proposed and defended with such advantages with that great force of reason and those perswasions that they can hardly be matched in former times yet after all this there are but few much wrought on by them which perhaps flows from this among other reasons that there are not so many excellent Patterns set out as might both in a shorter and more effectual manner recommend that to the World which discourses do but coldly The wit and stile of the Writer being more considered than the argument which they handle and therefore the proposing Virtue and Religion in such a Model may perhaps operate more than the perspective of it can do and for the History of Learning nothing does so preserve and improve it as the writing the Lives of those who have been eminent in it There is no Book the ancients have left us which might have informed us more than Diogenes Laertius his Lives of the Philosophers if he had had the art of writing equal to that great Subject which he undertook for if he had given the World such an account of them as Gassendus has done of Peiresk how great a stock of knowledge might we have had which by his unskilfulness is in a great measure lost Since we must now depend only on him because we have no other or better Author that has written on that Argument For many Ages there were no Lives writ but by Monks through whose writings there runs such an incurable humour of telling incredible and inimitable passages that little in them can be believed or proposed as a pattern Sulpitius Severus and Jerom shewed too much credulity in the Lives they writ and raised Martin and Hilarion beyond what can be reasonably believed after them Socrates Theodoret Sozomen and Palladius took a pleasure to tell uncouth stories of the Monks of Thebais and Nitria and those who came after them scorned to fall short of them but raised their Saints above those of former Ages so that one would have thought that undecent way of writing could rise no higher and this humour infected even those who had otherwise a good sense of things and a just apprehension of Mankind as may appear in Matthew Paris who though he was a Writer of great Iudgement and fidelity yet he has corrupted his History with much of that Alloy But when emulation and envy rose among the several Orders or Houses then they improved in that art of making Romances instead of writing Lives to that pitch that the World became generally much scandalized with them The Franciscans and Dominicans tried who could say the most extravagant things of the Founders or other Saints of their Orders and the Benedictines who thought themselves possest of the belief of the World as well as of its wealth endeavoured all that was possible still to keep up the dignity of their Order by outlying the others all they could and whereas here or there a Miracle a Vision or Trance might have occurred in the Livâ—s of former Saints now every page was full of those wonderfull things Nor has the humour of writing in such a manner been quite laid down in this Age though more awakned and better enlightned as appears in the Life of Philip Nerius and a great many more And the Jesuits at Antwerp are now taking care to load the World with a vast and voluminous Collection of all those Lives that has already swelled to eleven Volumes in Folio in a small Print and yet being digested according to the Kalender they have yet but ended the Month of April The Life of Monsieur Renty is writ in another manner where there are so many excellent passages that he is justly to be reckoned amongst the greatest patterns that France has afforded in this age But while some have nourished Infidelity and a scorn of all sacred things by writing of those good Men in such a strain as makes not only what is so related to be disbelieved but creates a distrust of the authentical writings of our most holy faith others have fallen into another extream in writing Lives too â—ejunely swelling them up with trifling accounts of the Childhood and Education and the
unwilling to grant him and offered to let him hold his Place still he doing what Business he could in his Chamber but he said he could not with a good Conscience continue in it since he was no longer able to discharge the Duty belonging to it But yet such was the General Satisfaction which all the Kingdom received by his Excellent Administration of Justice that the King though he could not well deny his Request yet he deferred the Granting of it as long as was possible Nor could the Lord Chancellor be prevailed with to move the King to hasten his Discharge though the Cheif Iustice often pressed him to it At last having wearied himself and all his Friends with his importunate desires and growing sensibly weaker in Body he did upon the 21 th day of February 28. Car. 2. Anno Dom. 1675 6. go before a Master of the Chancery with a little Parchment Deed drawn by Himself and Written all with his own hand and there Sealed and delivered it and acknowledged it to be Enrolled and afterwards he brought the Original Deed to the Lord Chancellor and did formally surrender his Office in these words Omnibus Christi fidelibus ad quos praesens Scriptura pervenerit Matheus Hale miles Capitalis Iusticiarius Domini Regis ad placita-coram ipso Rege tenenda assignatas Saluâ—em in Domino Sempiternam Noveritis me praefatum Matheum Hale militem jam senem factum Variis Corporis mei Senilis morbis infirmitatibus dire Laborantem adhuc Detentum Hâc Chartâ mea Resignare sursum reddere Serenissimo Domino Nostro Carolo Secundo Dei Gratià Angliae Scotiae Franciae Hiberniae Regi Fidei Defensori c. Predictum Officium Capitalis Iusticiarii ad placâ—ta coram ipso Rege tenenda humillime petens quod hoc Scriptum irrotaletur de Recordo In cujus rei Testimonium huic chartae meae Resignationis Sigillum meum apposui Dat vicesimo primo Die Februarii Anno Regnidict Dom. Regis nunc Vicesimo Octavo He made this Instrument as he told the L. Chancellor for two Endâ— the one was to shew the World his own free Concurrence to his Removal Another was to obviate an Objection heretofore made that a Cheif Iustice being placed by Writ was not removable at pleasure as Iudges by Patent were Which opinion as he said was once held by his Predecessor the Lord Cheif Iustice Keyling and though he himself were always of another opinion yet he thought it reasonable to prevent such a Scruple He had the day before surrendered to the King in Person who parted from him with great Grace wishing him most heartily the return of his Health and assuring him that he would still look upon him as one of his Iudges and have recourse to his Advice when his Health would permit and in the mean time would continue his Pension during his Life The Good man thought this Bounty too great and an ill Precedent for the King and therefore Writ a Letter to the Lord Treasurer earnestly desiring that his Pension might be only during Pleasure but the King would grant it for Life and make it payable Quarterly And yet for a whole Month together he would not suffer his Servant to Sue out his Patent for his Pension and when the first Payment was received he ordered a great part of it to Charitable Uses and said he intended most of it should be so Employed as long as it was paid him At last he happened to Die upon the Quarter day which was Christmas day and though this might have given some occasion to a dispute whither the Pension for that Quarter were recoverable yet the King was pleased to decide that Matter against himself and ordered the Pension to be paid to his Executors As soon as he was discharged from his great Place he returned home with as much Chearfulness as his want of Health could admit of being now eased of a Burthen he had been of late groaning under and so made more capable of Enjoying that which he had much wished for according to his Elegant Translation of or rather Paraphrase upon those excellent Lines in Seneca's Thyestes Act. 2. Stet quicunque volet potens Aulae culmine lubrico Me dulcis Saturet quies Obscuro positus loco Leni perfruar otio Nullis nota Quiritibus Aetas per tacitum fluat Sic cum Transierint mei Nullo cum Strepitu dies Plebeius moriar Senex Illi mors gravis incubat Qui notus nimis omnibus Ignotus moritur sibi Let him that will ascend the tâ—ttering Seat Of courtly Grandeur and become as great As are his mounting Wishes As for me Let sweet repose and rest my Portion be Give me some mean obscure Recess a Sphere Out of the Road of Business or the fear Of falling lower where I sweetly may My self and dear retirement still enjoy Let not my Life or Name be known unto The Grandees of the Time to'st too and fro By Censures or Applause but let my Age Slide gently by not overthwart the Stage Of publick Action unheard unseen And unconcern'd as if I near had been And thus while I shall pass my silent days In shady privacy free from the Noise And bustles of the mad World then shall I A good old Innocent Plebeian Die. Death is a mere Surprise a very Snare To him that makes it his Lifes greatest Care To be a publick Pageant known to all But unacquainted with himself doth fall Having now attained to that Privacy which he had no less seriously than piously wished for he called all his Servants that had belonged to his Office together and told them he had now laid down his Place and so their Imployments were determined upon that he advised them to see for themselves and gave to some of them very considerable Presents and to every one of them a Token and so dismissed all those that were not his Domesticks He was discharged the fifteenth of February 1675 6 And lived till the Christmas following but all the while was in so ill a State of Health that there was no hopes of his Recovery he continued still to retire often both for his Devotions and Studies and as long as he could go went constantly to his Closseâ— and when his Infirmities encreased on him so that he was not able to go thither himself he made his Servants carry him thither in a Chair At last as the Winter came on he saw with great Joy his deliverance approaching for besides his being weary of the World and his longings for the Blessedness of another State his Pains encreased so on him that no Patience inferiour to his could have born them without a great uneasiness of mind yet he expressed to the last such submission to the will of God and so equal a Temper under them that it was visible then what mighty Effects his Philosophy and Christianity had on him in supporting him under such a heavy Load He could not