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Art. IX. The Works, Moral and Religious, of Sir Matthew Hale,
Knt, Lord Chief Justice of the Court of King's Bench : the whole now first collected and revised. To which are prefixed his Life and Death, by Bishop Burnet, D.D., and an Appendix to the Life, including the additional Notes of Richard Baxter. By the Rev. T. Thirlwall, M.A., Editor of the Latin and English Diatessarons. 2 Vols. 8vo. 185. Boards. Symonds. 1805. THOUGH our press teems with productions which profess to
be original, and the taste of the age be in favour of novelty, it is scarcely to be supposed that volumes bearing so revered a name as that of Sir Matthew Hale will not engage some share of public attention. In addition to the productions of the learned Chief Justice, we have here his life by Bishop Burnet; as also the farther communications on the same subject by the celebrated Nonconformist Divine, Richard Baxter, and additions by the editor, with a dedication of the work to Lord Eldon. We cannot compliment Mr. Thirlwall, however, on his choice of a patron, since between the two learned sages we can discover little resemblance. Judge Hale confined himself to his Profession and his private studies ; his bias ran in favour of the rights of the subject; he was a stranger to the court, and interfered not with political intrigues. In regard to acuteness, information, and professional integrity, we admit the similitude between these personages : but, whatever may be the case with the dedicator, we own that we are unable to trace it beyond these features.
In order to give symmetry to the present article, we are obliged to borrow the account of Lord Hale's birth and pa. rentage from his R. R. biographer :
“ Matthew Hale was born at Alderly in Gloucestershire, the first of November, 1609. His grandfather was Robert Hale, an eminent clothier in Wotton-under-Edge, in that county, where he and his ancestors had lived for
many descents; and they had given several parcels of land for the use of the poor, which are enjoyed by them to this day. This Robert acquired an estate of ten thousand pounds, which he divided almost equally amongst his five sons; besides the portions he gave his daughters, from whom a numerous posterity has sprung. His second son was Robert Hale, a barrister of Lincoln's Inn; he married Joan the daughter of Matthew Poyntz, of Alderly, Esquire, who was descended from that noble family of the Poyntz's of Acton : of this marriage there was no other issue but this one son. His grandfather by his mother was his godfather, and gave him his own name at his baptism. His father was a man of that strictness of conscience, that he gave over the practice of the law, because he could not understand the reason of giving colour in pleadings, which as he thought was to tell a lie, and that, with some other things commonly practised, seemed to kim contrary to that exactness of truth and justice which became a Chrisiian, so that he withdrew himself from the Inns of Court to live on his estate in the country. Of this I was informed by an ancient gentleman, that lived in a friendship with his son for fifty years, and he heard Judge Jones, that was Mr. Hale's contemporary, declare this in the King's Bench.'
Wood, observes the editor, asserts that Hale subscribed the famous league and covenant, and appeared several times with other laymen in the Assembly of Divines. After having testified his regret and his dissatisfaction at this step, he suggests the following as the apology which might be urged in Sir Matthew's behalf :
· Those, however, who are jealous of the reputation of Hale, might offer in exculpation of his conduct, that before censure is passed upon him it would be proper to take a sober and dispassionate survey of the times and circumstances in which he was called upon to subscribe to the Covenant. If 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 supposed to take his measures, without revolving in his mind the very serious alternative which was presenced to his choice.. He was not unwilling to abridge the prerogative of the king; and
reconcile it with the liberties of the people, he could feel no difficulty in joining with parliament 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 between the Crown and parliament, and the establishment of a constitution, that would balance the just rights of the king, with the inalienable privileges of the subject. Of this the Covenant afforded a satisfactory pledge. He saw in it an express acknowledgement 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 structure of the church, always appeared to him an object of a secondary nature. He affirmed, that a people were left at liberty to choose for themselves, such a model as was best adapted to their genius, their maaners, and their temper. Neither the letter nor the spirit of the Covenant forced upon him a subscription to unscriptural articles of faith, nor even proscribed 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 ingrafted upon the primitive constitution, superadditions of human policy, which mo. derated in a considerable degree his admiration of its excellency and purity. But in examining this article of the Convenant more critically, his mind found a further relief from observing, that, the extirpation of prelaca' was connected with, and qualified by a subseRaz
quent quent sentence, which was evidently inserted for the purpose of removing the scruples, and satisfying the consciences of the moderate churchman. The obligation to renounce only "what was contrary to sound doctrine and the power of godliness," allowed him a latie tude of construction, which justified the most satisfactory conclu. sions in favour of his subscription to the solemn League and Covenant. This public act invested him with the privilege of attending the assembly of Divines, and taking an active part in their proceed. ings : he was no doubt prevailed upon to assist, by the hope of moderating the passions, and setting bounds to the extravagant projects of the violent zealots. Whilst he entertained this hope, he would occasionally attend ; but when he found his endeavours were unavail. ing, and the temper of the assembly would admit of no control, he no longer shared with them in the responsibility for the wisdom or policy of their measures.'
It is but too clear that the Chief Justice took the more ob. noxious Engagement, on which the editor makes these just remarks:
• The warmest admirer of Hale must admit that his subscription to an instrument of this complexion is a ground upon which his principles of attachment to a regal government may reasonably be questioned. For though it be true that Charles I. was no more, yet Hale was too colightened and intelligent to conclude that there was an end of monarchy. The prince was alive, and unsubdued, whavit might be rationally supposed, would make an effort to ascend his father's throne, and assert bis legitimate rights. The tenor of this Engagement was a direct contradiction to the letter and spirit of the Core. pant which he had taken. If then there be any meaning attached to words, and any sanction and value to the solemnity of an oath, by what train of reasoning can the conduct of Hale be justified? What else is implied in this Engagement than a solemn recognition of those principles upon which Charles was arraigned and condemn. ed? What else than an unqualified rejection of a regal form of government, and an unfeigned approbation and indelible seal of fidelity to a parliament established without a king or house of lords: li caths are things which men may allow themselves to take upon the ascendancy of a party, and considered only binding so long as interest or violence shall prescribe, then indeed the conduct of Hale vill ad. mit of an apology. I confess, with all my admiration of his character, and full conviction of his integrity, I feel myself at a loss for reasons to exculpate him in this instance from the charge of pusil. lanimity, selfishness, or versatility of principle. How much brighter would his character have shone, if he had followed the example of his learned friends, and with the same firmness returned the judge their answer! He would, indeed, have sacrificed his interest to his principles, but he would have displayed the virtues of suffering loyaliy, and transmitted his name with unsullied lustre to an admiring posterity. '1t is with extreme reluctance, and the greatest deference, I have self obliged to offer this opinion so unfavourable to his memory. For though it would betray in the biographer an unpardonable ignorance of human nature, and repréhensible partialiły for his subject, to hold him up an image of unspotted innocence, and un. erring rectitude, yet the uniform tenor and generdi complexion of Hale's character, his acknowledged reputation for learning, integrity, and piety, of which he gave an instance in the exordium I have tran. scribed, all forbid us to suppose he was not tremblingly alive to the sanctity of an oath, and rather than wound the peace of his consci. ence, would not submit to the bitterest privations. That he acted from motives which acquitted him at the tribunal of his own conscience, it is reasonable to presume, though we have the misfortune to be unacquainted with them. Nor can this apology, with justice, be placed to an excess of candour, or an undue bias in favour of one who had the firmness very soon after to refuse the offer of a seat on the bench, and to tell Cromwell, when he asked his reasons, 'that he was not satisfied about his authority,, and therefore scrupled to accept the commission.'
• To which the usurper is said to have made this remarkable reply: • That as he had gotten possession of the government, he was resolved to maintain it. I will not be argued out of it. It is my desire to rule according to the laws of the land, for which
purpose I have pitched upon you ; but if you won't let me govern by red gowns, I am resolved to govern by red coats!'
With good reason, as we trink, Mr. Thirlwall questions, Burnet's statement that Hale was employed as counsel for the untiappy Charles. That he furnished the able and pointed objecrions made by the unfortunate monarch, when brought before the tribunal which tried him, rests solely on conjecture.
In the subsequent passage, the editor refers to a well known circumstance, which certainly derogates in no slight degree from the high reputation of this great judge :
• It cannot be supposed that our illustrious judge was exempt from the frailties of humanity. There is one circumstance recorded of him, which sufficiently proves indeed, that he had not risen superior to the superstitious credulity of the times.
It almost surpassés belief at the present day, with what reverence and horror our forefathers looked upon nature, before the world was enlightened by learning and philosophy, and how they loved to astonish themselves with the apprehensions of witchcrafts, prodigies, charms and enchantments, Tbere was not a village in England that had not a' ghost in it, the church-yards were all haunted, every large common had a circle of fairies belonging to it; and there was scarce a shepherd to be met with who had not seen a spirit! The mind is over. whelmed in astonishment at the fact, that Sir Matthew Hale, the most pious, learned, enlightened, and humane judge, that ever adorn
ed the Bench, should declare his belief in witchcraft, at the assizes held March 19th, 1664, at Bury St. Edmund's, in Suffolk, where he passed the sentence of death upon two old crazy wretches for that copposed crime, for which they were executed on the 19th of the
same month. Before we venture to reproach his memory with eso treme severity, we ought, in candour, to take into account the strong prejudices of the times in which he lived.'
Hale's cotemporary, Lord Chief Justice North, who was much his inferior in worth and learning, had greatly the advantage over him on the ground just mentioned ; and a very interesting anecdote to this purport is here related, which is not less creditable to his address than to his discernment and humanity. In the sketch of Sir Matthew which was drawn by Roger North, we have always thought that we could discover some just observations, and several traits of truth, accompanied with exaggerations and misrepresentations.
We subjoin the editor's account of the contents of these volumes :
The fruits of his studies are almost incredible, for which he was admirably qualified by a happy combination of natural endowments. But yet' the Christian believer will attribute the success which crowned his labours to an extraordinary blessing from heaven, as the reward of exemplary piety, and an habitual address to the Throne of Grace; of a religious observance and employment of times set apart for sacred uses ; of a conscientious application to his learned and honourable profession, and its uniform subserviency to the interests of religion and the promo!ion of human happiness.
Of the two Discourses which begin this volume, the Brief Extract of the Christian Religion was one of his later writings; The Cleansing of the Heart, one of his more ancient; neither of which was finished by the author.
His Leiters, for the first time, are collected and printed together. • The Three Discourses of Religion were published by his friend and admirer, Richard Baxter, who dedicated them to the “ Honourable the Judges.” Baxter annexed to this treatise the Judgment of Sir Francis Bacon, and an extract from Dr. Barrow on the subject. It is proper to remark, that these Discourses have been printed under a different title, which led Wood to conclude they were two distinct works. In Baxter's edition, it is distinguished by the title of " His Judgment of the Nature of True Religion, the Causes of its Cor. ruption, and the Church's Calamity by Men's Additions and Violences, with the desired Cure.”
• The tract of Doing as we would be done unto, though sufficiently distinct, seems to have been intended for the continuation of another work; and might, with propriety, be joined to his Discourse of the Knowledge of God and Ourselves.
• His own Prefaces will best explain the purport and use of the two Treatises which conclude the volume. Perhaps the last, viz.
Provision for the Peor, will be thought the least interesting. It is, however, but short, and though upon a local subject, and adapted to the particular circumstances of his native spot, is founded in prin. ciples which have engaged the attention and exercised he abilities of the philanthropist in all ages, and cannot fail to gratify the curi