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so long as I keep myself exactly according to the rule of justice.
“ 13. If in criminals it be a measuring cast, to incline to mercy and acquittal.
“ 14. In criminals that consist merely in words, where no more harm ensues, moderation is no injustice.
“ 15. In criminals of blood, if the fact be evident, severity is justice.
“ 16. To abhor all private solicitations, of what kind soever, and by whomsoever, in matters depending.
“ 17. To charge my servants, 1. Not to interpose in any matter whatsoever; 2. Not to take more than their known fees ; 3. Not to give any undue precedence to causes ; 4. Not to recommend counsel.
“ 18. To be short and sparing at meals, that I may be the fitter for business.”
Under the influence of resolutions like these, the conduct of Hale on the bench appears to have been almost irreproachable. So rooted and vehement was his abhor. rence of every thing like improper influence, that he carried his punctilious feelings on this subject to an almost fantastical excess. Some anecdotes of this “ reasonable strictness” have been preserved. A gentleman who happened to be a party in a cause which stood for trial at the assizes sent a buck to the judge as a present. On the trial coming on, Hale remembered the name, and desired to know “if he was the same person who sent him the venison ?" On discovering that this was the fact, he told the donor, that “ he could not suffer the trial to go on till he had paid him for his buck.” The gentleman answered, “ that he never sold his venison, and that he had done nothing to him which he did not do to every judge that had gone that circuit," an assertion confirmed by several gentlemen present. The judge, however, calling to mind the maxim of Solomon, that a gift perverteth the ways of judgment, would not suffer the trial to proceed until the venison was paid for, which the gentleman resenting as an insult, withdrew the record. In the same manner; Hale directed his servants to pay
for the six sugar-loaves which, according to custom, were presented to him at Salisbury by the dean and chapter. He carried the same spirit into the common transactions of life, and on making purchases insisted upon paying more than was demanded ; a refinement which even the most jealous construction of his actions could scarcely have rendered necessary. On being told that he seemed to make ill bargains, he replied, “ that it became judges to pay more for what they bought than the true value, that so those with whom they dealt might not think they had any right to their favour by having sold such things to them at an easy rate.” He added, that it was suitable to the reputation which a judge ought to preserve to make such bargains that the world might see they were not too well used on some secret account. But even this over-scrupulous delicacy has not preserved Sir Matthew Hale from the imputation of showing favour to those towards whom his prejudices inclined him. “ He was an upright judge,” says the Honourable Roger North *, “ if taken within himself; and when he appeared, as he often did and really was, partial, his inclination or prejudice, insensibly to himself, drew his judgment aside. His bias lay strangely for and against characters and denominations, and sometimes the very habits of persons. If one party was a courtier and well dressed, and the other a sort of puritan with a black cap and plain clothes, he insensibly thought the justice of the cause was with the latter. If the dissenting or anti-court party was at the back of a cause, he was very seldom impartial, and the loyalists had always a great disadvantage before him. It is said he was once caught. A courtier, who had got a cause to be tried before him, got one to go to him, as from the king, to speak in favour of his adversary, and so carried his point ; for the chief justice could not think any person to be in the right that came so unduly recommended.” [Note 35.] Taking into the account the temper of this lively writer, it is not improbable that the partiality
* Life of Lord Guilford, vol. i. p. 119.
towards the puritans, of which he complains, was nothing more than that due and decent degree of favour with which a judge is bound to regard all the suitors before him, but which, being seldom extended by prerogative magistrates towards persons of that class, would naturally appear to a prerogative writer to be the result of democratical prejudices. The same author, who accuses Hale of professing “ demagogical principles," has yet borne testimony to the impartiality with which he conducted himself, while presiding in the exchequer, in cases in which the crown was concerned. " I have heard him (Lord Guilford) say, that while Hale was chief baron of the exchequer, by means of his great learning, even against his inclination, he did the crown more justice in that court than any others in his place had done with all their good will and less knowledge. But his lordship knew also his foible, which was leaning towards the popular; yet when he knew the law was for the king (as well he might, being acquainted with all the records of that court, to which men of the law are commonly strangers), he failed not to judge accordingly."*
In the demeanour of Hale on the bench, gravity, patience, and urbanity were mingled. He exhibited nothing of that hasty and captious bearing, towards the counsel who appeared before him, into which some judges have been betrayed; although when he saw them wandering from the point, he led them back to it; a course by which he divested the cases argued before him of many difficulties and perplexities. In summing up to the jury, he would require the bar to interrupt him in case they perceived any mistake or omission in his statement; an interruption which many judges of meaner abilities have regarded as an insult. To the younger professors of the law, and to the students, Hale was singularly urbane, endeavouring to encourage them, and taking every opportunity of affording them instruction. “ I have known the court of king's bench,” says the Hon. Roger North, “ sitting every day from eight to twelve, and the Lord
* Life of Lord Guilford, vol. i. p. 118.
Chief Justice Hale managing matters of law to all imaginable advantage to the students, and in that he took a pleasure, or rather pride. He encouraged arguing when it was to the purpose, and used to debate with the counsel, so as the court might have been taken for an academy of sciences as well as the seat of justice.”
On the trial of criminals, Hale displayed that temper and moderation so requisite to the ends of justice, when the accused and the accusers meet on unequal terms. He indulged in no levity, he exhibited no harshness or severity, but summed up with an impartiality which left even the prisoners nothing of which to complain. He would never suffer the witnesses to be intimidated or confused by the examination of counsel. When it became necessary for him to pronounce sentence of death, the solemn and earnest exhortations with which he accompanied it, so free from all affectation, so serious and so devout, are said to have attracted strangers to listen to the impressive lesson.
As a lawyer, and especially as a constitutional lawyer, Hale has, perhaps, never been equalled. His young rival, the Lord Keeper North, “revered him for his great learning in the history, law, and records of the English constitution.” + Comparing him with Sir Edward Coke, he transcended even that great luminary of the law in the accuracy and extent of his antiquarian knowledge, in his intimate acquaintance with the records, and in the orderly arrangement of the vast stores of learning which he had acquired. The respect paid to his legal opinions even in his own day was such, that when sitting as the puisne baron of the exchequer, and delivering his opinion last, at variance with that of his brothers, the latter, struck with the force of reasoning displayed in Hale's arguments, have been known to retract the opinion they had expressed. His published professional works are worthy of the high reputation which he enjoyed while living, and will for ever remain as monuments of his
* Discourse on the Study of the Laws, p. 32.
diligence and profound learning. To his great work on the Pleas of the Crown, reference is made, as to the records of the law themselves. His admirable Analysis of the civil part of our law supplied Sir William Blackstone with the idea of his Commentaries, which have been termed " A superstructure raised on the foundation of Lord Hale's previous digest and distribution of the subject. Many of the invaluable treatises and collections compiled by the industry and learning of Sir Matthew Hale still remain unpublished. At the close of the last century, the excellent treatise, De jure maris, de portubus maris, and concerning the custom of goods, a work full of profound learning, and most important in a constitutional point of view, was published by Mr. Hargrave in the first volume of his Law Tracts. That gentleman was also fortunate enough to obtain another short tract entitled, Considerations touching the amendment of law, which he has in the same manner given to the public. At the present moment, when the amendment of the law has not only engaged the attention of the legislature, but has become a subject of no inconsiderable interest with the people at large, it will not be unprofitable to state what were the opinions of Sir Matthew Hale as to the possibility of effectuating so important an object. After some observations on the evils arising from “ hastiness and forwardness to alterations in the laws,” he proceeds to remark upon “ the over-tenacious holding of laws, notwithstanding apparent necessity for and safety in the change." The principles which Hale here lays down, though most obvious and simple, are yet most admirable, and well deserve the attention of those legislators who can see nothing in our institutions requiring reform. “ We must remember that laws were not made for their own sakes, but for the sake of those who were to be guided by them; and though it is true that they are and ought to be sacred, yet if they be or are become unuseful for their end, they must either be amended, if it may be, or new laws be substituted, and the old repealed,
* Preface to Hargrave's Law Tracts, xii.