HALE, Matthew (1609-76), of Alderley, Glos. and Lincoln’s Inn, Mdx.

Matthew Hale’s grandfather was a wealthy clothier in Wotton under Edge, with a long family history in that town. He was said to be worth £10,000, bought the manor of Rangeworthy, was a benefactor to this town and divided his fortune among his five sons. His second son and namesake, Robert Hale, became a barrister of Lincoln’s Inn, and married into the Poyntz family of Iron Acton. He gave up the law because he was unable to satisfy his conscience that to add colour in pleadings was not ‘contrary to exactness of truth and justice which became a Christian’.42Burnet, Life and Death, 2; C93/11/11. His estate was a modest £100 at his death, which occurred when his only son Matthew was four. As his mother had predeceased his father, Matthew was brought up in the household of his kinsman Anthony Kingscote, a puritan, who ensured that Hale was educated by the godly John Stanton, minister of Wotton. At Magdalen Hall, Oxford, which he entered in 1626, his tutor was Obadiah Sedgwick, later puritan lecturer and chaplain to a parliamentarian foot regiment.43Burnet, Life and Death, 3-4. After a period of savouring stage plays and fine clothes, in 1628 Hale took up law when required to defend his own estate against a legal claim. Discarding his fine wardrobe in favour of a 16-hour day of study at Lincoln’s Inn, he was promoted in his chosen profession by Serjeant John Glanville*, who evidently recognised his talent.44Burnet, Life and Death, 5-7.

Hale came into his manor of Rangeworthy at majority age, but entrusted his estate to a steward and widened his intellectual pursuits to include the advanced study of mathematics, philosophy, medicine, ancient history and divinity.45Glos. RO, D1086/F68. Called to the bar in 1636, he became a friend of John Selden* and John Vaughan* in the London inns of court.46Burnet, Life and Death, 14-18. His upbringing, education and circle of legal patrons – Glanville and Selden were a generation older – should have inclined him towards support for Parliament during the build-up to civil war. His post-Restoration biographer, Gilbert Burnet, cannot be expected to have emphasised any sympathies Hale might have had towards the critics of the king, and duly recorded how Hale deliberately kept out of controversy, avoiding not only ‘all public employment but the very talking of news’.47Burnet, Life and Death, 20. However, the less discreet Anthony Wood noted how Hale attended meetings of the Westminster Assembly of Divines – presumably in a legal, advisory capacity – and played a part in the drafting of the articles of surrender of the royalist garrison of Oxford. Wood quickly adds that Hale’s motive in this was to protect the university from destruction by the parliamentarians, but both these examples suggest that Hale’s aloofness from public affairs was not absolute.48Ath. Ox. iii. 109. In any case, he was willing to offer his professional opinion to Gloucestershire magistrates on difficult cases in local administration.49HMC 5th Rep. 344.

During the civil wars, Hale became prominent as a counsel for famous enemies of Parliament. He is said to have been employed as counsel for the 1st earl of Strafford (Sir Thomas Wentworth†) in 1641, and by May 1643 Thomas Some, Laudian vicar of Staines, petitioned in the hope that Hale might be assigned to defend him against charges brought by Parliament.50HMC 5th Rep. 83. William Laud himself lodged a similar petition on his own behalf just five months later, and the Lords assigned Hale to the defence at the archbishop’s trial.51HMC 5th Rep. 112; Laud’s Works, iv. 34, 386. In these trials, as in that of James Hamilton, 1st duke of Hamilton [S], in 1649, Hale’s appointments were approved by Parliament, and he should not therefore be viewed as hostile to it. He was doubtless growing in confidence professionally, and by the Hamilton trial of 1649, was leading for the defence. He based his case for Hamilton on the grounds that no person could be a subject in two kingdoms, and thus Hamilton, as a Scot, could not be guilty of treason in England. As a contemporary commentator noted, ‘all of this ... was founded on no common or statute law, as Mr Hale himself confessed afterwards’.52Howell, State Trials, iv. 1156, 1162-3; G. Burnet, Mems. of the Lives and Actions of James and William, Dukes of Hamilton (1677), 392. Another form of recognition came with his elevation to be a bencher at Lincoln’s Inn, in November 1648.53LI Black Bks. ii. 379. Burnet imposes on Hale a pro-royalist consistency. As well as defending prominent peers in trials, he was due to act in the interests of Charles I had the king entered a plea at his trial, and after the regicide, in 1651, was counsel for William Craven, 1st Baron Craven, whose estates were confiscated by Parliament for his royalism. This intervention is said to have drawn a rebuke or a threat from Attorney-general Edmund Prideaux I*.54Burnet, Life and Death, 20-1. But against these intimations of sympathies with not only the king’s cause but also with the royalist underground after 1649 must be set Hale’s activity as the lawyer to draft the marriage settlement of Oliver Cromwell’s* son, Richard*; executor of Philip Herbert*, 4th earl of Pembroke (though like Thomas Pury I* he did not act); retained counsel to the strenuously puritan corporation of Gloucester; and adviser to the Rump Parliament in the field of legal reform.55A. Cromartie, Sir Matthew Hale 1609-1676 (Cambridge, 1995), 63; Glos. RO, D1086/X3; T93; F17.

The fact is that as one of the most eminent lawyers of his day, Hale was in demand from all quarters for his professional skills and integrity. He was just the man therefore to chair the so-called ‘Hale Commission’, a parliamentary commission on law reform, which met on 71 occasions. Hale was elected to the chair at the first meeting (23 Jan. 1652) and attended 39 sessions, dominating proceedings when he was present.56Add. 35863; M. Cotterell, ‘Interregnum Law Reform: the Hale Commission of 1652’, EHR lxxxiii, 694-5; A. Cromartie, Sir Matthew Hale, 70. His instincts were consistently conservative, and he opposed moves that would divert power away from the central courts, such as the scheme to introduce county courts.57Cotterell, ‘Hale Commission’, 698. On the other hand, he was in favour of a modest programme of reform in land law, working with the radical cleric Hugh Peters to subject copyhold tenures to liability for debt. His interest in abolishing fines on original writs was motivated by a wish to reduce competition between common pleas and king’s bench courts, but this plan was approved by the Levellers as a means of shoring up safeguards of individual liberties.58LPL, MS 3476, f. 33; Cotterell, ‘Hale Commission’, 696, 700-1. Many drafts of reforming acts have survived in Hale’s hand, among them legislation abolishing the sale of public offices.59LPL, MS 3475, ff. 191, 283-4, 285; CSP Dom. 1653-4, p. 339

Hale’s appearance as a candidate in the 1654 election came at the end of a year which had seen his elevation as a judge of probate, a serjeant-at-law and as a judge of common bench, formerly common pleas. Furthermore, he had been consulted frequently by the council of state in the spring and summer.60CSP Dom. 1654, pp. 124, 156, 214, 310, 330, 334. According to one royalist source, when Hale was consulted as to the constitutional status of the protector he advised that ‘the fundamental laws’ demanded government by a king, although that was not necessarily an endorsement of the Stuart dynasty.61Nicholas Pprs. ii. 64; Cromartie, Sir Matthew Hale, 78. A story perpetuated by Sir Richard Onslow†, Speaker from 1708, was that Hale at first refused high legal office because he remained inclined to the royalist cause. Lord Protector Oliver Cromwell* interviewed him, declaring ‘If you sir, and such men as you will not suffer me to govern by red gowns, I must and will govern by red cloaks’.62HMC 14th Rep. ix. 479. This expression of willingness to govern by force may have been enough to change Hale’s mind. At any rate, his willingness to stand was probably motivated by concern for the interest of the ‘country’, as he saw it. An undated letter from him to a Gloucestershire associate seems more likely to date from that year than from his third period in the House in 1660, when he was experienced and very eminent, and cannot relate to his representing Oxford University in 1659. His tone is hesitant: ‘I think the county may fix upon a person much more fit than myself’, but if he were to be chosen

I am resolved to attend the employment and according to the best of my understanding I shall endeavour to serve the interest of the nation and of the county therein ... Only (if it may be) I would be excused from appearing at least publicly at the election. Those that know me know it is not out of pride or singularity [‘or my overvaluing of myself or my person’, deleted]. But in respect of my unfitness and indisposition to bear up a great part in the world and my tendency of seeming to impose [‘anything’, deleted] upon the freedom of the country’s choice. The short is I would have the county free in their choice and if they think I may be serviceable to their and the public interest I am resolved God willing to serve them if I am chosen and you may communicate [it] to whom you see cause.63LPL, MS 2513, f. 110.

Hale was described by Edward Harley* as a friend of his father, Sir Robert Harley*, and he was included in the list of ‘conscientious men’, identified by the Presbyterian Thomas Gewen*, who had overcome their scruples and taken the engagement in order to sit in the protectoral Commons.64HMC Portland, iii. 204; Archaeologia, xxiv. 140. A further suggestion of Hale’s inclination towards the ‘country’ interest is his appearance as counsel in a lawsuit between Sir Philip Mainwaring* and Edward, 2nd Viscount Loftus of Ely [I], neither of whom had any record of support for the protectorate.65HMC Var. iii. 228-9. His ‘expedient’ of 11 September 1654 to resolve the protracted wrangling over the relationship between lord protector and Parliament was exactly that of a moderate Presbyterian or ‘country’ Member, and was commended nearly five years later when parallels were drawn in Richard Cromwell’s* Parliament. Hale led those who saw constitutional supremacy residing with Parliament into the compromise by which the ‘single person’ exercised supreme authority with such qualifications upon his power that Parliament propounded.66Burton’s Diary, i. p. xxxii; iii. 142; Henry Cromwell Corresp. 450. Beyond this, in accordance with the usual custom, Hale as a senior judge played no active part in the committees and day-to-day business of the House, and corroborative evidence for Burnet’s assertion that he blocked a move to destroy official records housed in the Tower of London cannot be found.67Burnet, Life and Death, 29.

Hale allegedly refused to act in the trials of the Penruddock rebels at Exeter in 1655, but as he was a commissioner for the midland circuit, this story seems unlikely.68Burnet, Life and Death, 28. He remained well enough disposed to the government to arbitrate in various cases on circuit; in April 1656 he was praised by Major-general Edward Whalley*, who had witnessed him in action as a circuit judge, as ‘an able ... [and] a godly man’; and he was named to the committee of trade in November 1656.69CSP Dom. 1655, p. 175; 1655-6, pp. 1, 394; TSP iv. 686; Cromartie, Sir Matthew Hale, 84. It was perhaps with this latter appointment in mind, rather than any suspicion of disloyalty, that the council refused his nomination to the winter 1656 assize circuit.70CSP Dom. 1656-7, p. 81. Hale is not known to have sought a seat in the 1656 Parliament, and his position in the final years of the protectorate remained ambiguous. He probably walked in the funeral procession of Oliver Cromwell in November 1658, despite the assertion by Burnet that he refused mourning.71Burton’s Diary, ii. 526; Burnet, Life and Death, 30. He refused, ‘in surprisingly blunt terms’, to serve again as a judge under Richard Cromwell, but in 1659 agreed to sit for Oxford University.72Cromartie, Sir Matthew Hale, 85. Despite his freedom to speak without the burden of high judicial office, he was relatively inactive in this assembly. Nevertheless, he was present on 1 April 1659 to intervene in a dispute between John Bulkeley and the commonwealthsman, Andrew Broughton, in which he supported Bulkeley, a leading Presbyterian who was by this time lending his support to the protectorate.73Burton’s Diary, iv. 326. Hales’s uncertain relationship with the authorities was again apparent in March 1659, when he was shortlisted by Bristol corporation for the post of recorder there, but John Stephens* was selected instead.74Bristol RO, 04264/6, p. 184.

In April 1660, Hale was prevailed upon to stand again for the Convention for both Oxford University and his county, the charges of his Gloucestershire campaign being borne by George Berkeley*, 9th Baron Berkeley, a consistent promoter of the ‘country’ interest there. Berkeley even gave him his own sword, so that he could satisfy the terms of the writ summoning a knight of the shire.75Burnet, Life and Death, 30. When named to a local commission – probably that for assessments – soon after the Restoration of the monarchy, Hale pleaded that his estate was small, despite the high offices he had held.76LPL, MS 3513, f. 106. There seems no reason to doubt this, as from the mid-1650s he was involved in arranging mortgages of his property.77Glos. RO, D1086/E153, E179, F68, T79. He was more prominent in this Parliament than in any earlier ones. Among his interests were the regularising of interregnum proceedings, and a policy of clemency towards regicides. He was named to a committee to draft a petition on behalf of John Lambert* and Sir Henry Vane II*. He left the Commons on his appointment as chief baron of the exchequer (7 Nov. 1660).78HP Commons, 1660-90, ‘Matthew Hale’; CSP Dom. 1660-1, p. 354. He made his will on 3 February 1676, and it is evident that by this time he had freed his estate from incumbrances and had acquired new properties on the strength of his legal office.79LPL, MS 3474, ff. 192-215. None of his descendants sat in Parliament.