CHAPTER FIFTEEN Matthew Hale

Among the poignant stanzas of Gray's “Elegy in a Country Churchyard,” there is one that might serve as proheme to the most brilliant work of Sir Matthew Hale, The History and Analysis of the Common Law of England.

Full many a gem of purest ray serene,

The dark unfathom’d caves of ocean bear;

Full many a flower is born to blush unseen,

And waste its sweetness on the desert air.

Hale wrote his legal history in the 1660’s and 1670’s; Gray penned his lyric during the 1740’s; had Hale had his way, the History would still have been in manuscript, unprinted, when Gray wrote. The History is a tacitly incom­plete work and the accompanying Analysis explicitly so. Clearly neither was intended by Hale for publication in his lifetime in the form extant. More­over, in bequeathing his manuscripts to Lincoln’s Inn, both collections from others and works of his own, Hale referred to his works as

a treasure that are not fit for every man’s view; nor is every man capable of making use of them: only I would have nothing of these books printed, but entirely preserved together for the use of the industrious learned members of that society.¹

When, almost forty years after Hale’s death, the History was published, the anonymous editor felt compelled to preserve the anonymity of the author with the attribution, “Written by a Learned Hand.” It was almost as if that ghostly hand reached beyond the grave to maintain the author’s privacy.

Sir Matthew Hale (1609-1676), successively serjeant-at-law, Justice of the Common Pleas (1653-1658), Chief Baron of the Exchequer (1660-1671), and Chief Justice of the King's Bench (1671-1676), for a season a Mem­ber of Parliament, and an active lawyer much involved in affairs of govern­ment and of state, was a public figure during both the Interregnum under Cromwell and in the era following the Restoration of Charles II in 1660.

Hale's contemporary reputation was raised on no significant corpus of juristic writings. All that he published in his lifetime was a brief preface to Henry Rolle's Abridgment (1668), commending that worthy enterprise which Hale had seen into print.³ Shortly after his death, an admirer did him the considerable disservice of publishing Pleas of the Crown, or a Methodical Summary of the Principal Matters Relating to that Subject (1678). The subtitle tells all, for it was nothing more than a series of head notes (printed crudely as they stood without revision by the author) for a longer work, History of Pleas of the Crown, which would be published six decades after Hale's death in 1676. Hale's subsequent reputation owes most to the History of Pleas of the Crown (1736) and our legal classic, the History of the Common Law (1713), with some slight reinforcement from shorter tracts published in the course of the eighteenth century. Even so, in 1680 the unpublished History of Pleas of the Crown was highly enough regarded that the House of Commons ap­pointed a committee to bring it to the press. Nothing came of it. The proj­ect was a victim of the great Exclusion Crisis which saw three Parliaments dissolved by Charles II in almost as many years in order to save the throne for his Catholic brother, James Duke of York, who would become James II in 1685 only to be driven from his throne by the Glorious Revolution of 1688.

We are presented with two mysteries, and to understand Hale's work as well as to appreciate his extraordinary scholarly reputation then (and, to some extent, since) we need to solve both. First, why did Hale, who wrote a great deal, publish virtually nothing on the law during his lifetime? Sec­ond, absent such a corpus, what was the foundation for his contemporary fame as a scholarly jurist? Beyond the obvious relevance of publication to fame, there appears to have been also a subtle relationship between his mo­tives in not publishing and the awe in which his contemporaries held him. To solve one mystery might go some way towards solving the other.

We begin with the inimitable qualities of Matthew Hale. Much of the best recent scholarship on Hale points to the centralness of two pronounced strains in mind and spirit which constituted distinctive qualities of his be­ing and attributes of his life: his intellectual interest in “natural philosophy” and his spiritual commitment to Christian piety. These set him apart from earlier great jurists, not least Sir Edward Coke, and virtually all of his con­temporaries of bench and bar.

As a “natural philosopher” of the epoch, Hale should be classed among those virtuosi for whom some form of scientific endeavor, whether observa­tion, experimentation, collection, or merely speculation, constituted avo­cation rather than vocation, but with an intensity which gave real mean­ing to the old sense of the word amateur—one who loves. Virtuosi was an apt name, redolent of the manliness of the Renaissance’s virtu, of the masterfulness of an accomplished mind, a sure hand, and a wide-ranging and speculative spirit. Though they spread themselves broadly and often thinly over the realm of knowledge, the virtuosi were not dilettantes, not amateurs as we use the term.

It is to be noted that they [the Royal Society] have freely admitted Men of dif­ferent Religions, Countries, and Professions of Life.... For they openly pro­fess, not to lay the Foundation of an English, Scotch, Irish, Popish, or Protes­tant Philosophy; but a Philosophy of Mankind.⁴

On the rubble of the bare, ruined, choirs of sectarian strife and internecine war, a handful of clerics, lawyers, physicians, academics, country gentle­men, civil servants, merchants, soldiers, sailors, essayed nothing less than a Philosophy of Mankind to be raised by the search for truth. All contribu­tions were gratefully received: no knowledge was negligible, no branch of knowledge out of bounds for the quest, no proffered competencies and skills refused. The assumption of the endeavor was that nature was orderly, that all human action so far as it was consonant with nature could partake of the same orderliness. For a lawyer there was a job to do in the common enterprise, to bring the search for truth to the way men order their conflicts by law.

Though Hale did not belong to the Royal Society, his closest friends were members, and he moved freely in that circle. He himself published two works in the new science: An Essay touching the Gravitation or Non-gravita- tion of Fluid Bodies (1673), and Difficiles Nugae, or Observations touching the Torricellian Experiment (1674).

Hale's creative involvement in the new science was not negligible. Be­sides contributing to the endeavor by his own speculative writings, Hale brought to the search for truth abundant professional experience of the nature of truth as evidence. Barbara Shapiro has suggested that Hale—and the law—gained as much from the search as he brought to it. “Natural philosophic” speculation perceptibly shifted the search for truth from an absolute standard to probability, to truth based upon the degree of cer­tainty obtainable from the evidence. She concluded:

Again stating the minimum case, the movements toward systematization and evaluation [of evidence] in terms of degrees of certainty are parallel and so near­ly identical in law and science that leading lawyers of the day, many of whom also engaged in science, certainly found no need to resist the encroachments of science or to assert the autonomy of law. I think it is possible to go one step fUrther and assert that a significant number of lawyers naturally assumed that a court should seek truth in the most scientifically correct way; thus they bor­rowed much of the doctrine of certainty although they would not have thought of themselves so much as borrowing science as conforming to the best general intellectual practices of the day.⁵

Thus, rather than attributing to the eighteenth century (and Bentham) the origins of a sophisticated law of evidence in the common-law system, it appears that the foundations of it were laid a century earlier, despite the continuation of the rhetoric of medieval legal practice of giving equal and indiscriminate weight to all testimony under oath, etc.

The other distinctive quality of Hale was a highly orthodox but non-sec- tarian Christian piety. Two of his works bare his soul, but in strikingly dif­ferent ways. Contemplations Moral and Divine (1676) was published shortly before Hale's death, against his express will, by an overzealous chaplain to the Archbishop of Canterbury. The book was essentially a work of escha­tology and soteriology, centered on the twin themes of contemplation of death and the accountability exacted of the soul by God for the use of one's life and works on earth. It breathed strongly that characteristic exhortatory moral theology which had been a constant in Hale's correspondence with his children and much evident in his conversation with his friends. Its mes­sage could not be lost on even the worst sinner or most obdurate skeptic, and its clear witness to the faith constituted a discharge of Hale's duty to God and man, as well as offering a source of comfort to the old judge in the twilight of his own life. Lord ChiefJustice Matthew Hale on the Nature of True Religion, the Causes of its Corruption, and the Church’s Calamity by Men’s Additions and Violence, with the Desired Cure (1684) was published in homage to the memory of its author by the great Presbyterian divine, Richard Baxter, a dear friend of Hale by virtue of their common intellec­tual interests, piety, Christian charitableness, and—it must be emphatically said—visible saintliness. No less pronounced in its moral content, The Na­ture of True Religion is irenic, tolerant, and latitudinarian in its reflections on the religious controversies of the preceding half-century. Affirming episco- palianism as the most suitable ecclesiastical polity while denying that polity is the essence of religion, accepting modest ceremonies as good but that the observance of religion lies in fear of God and not in ceremonies, and that moderation, temperance, and prudence should direct Christian men as they dispute non-essentials, Hale likened the sectarianism of his day to boys blowing bubbles, chasing each his own and calling it religion.

Charles Gray has suggested that Hale wrote for himself rather than for others, that he wrote in order to clarify and gain perspective on things so that he could better cope with a world in which sin increases, and that one should expect such “privatization of intellectual life” in a “psychological Puritan, which Hale plainly was.”⁶ The Puritan tendency was for “publi- cization” of intellectual (and spiritual) life: witness the many fervent and perfervid Puritan tracts the age produced relating the never-ending struggle of the visible saint strenuously wrestling Satan to ultimate but never final defeat. To make one's faith a private matter seems more of a piece with the contemplative and meditative tradition in Anglicanism. Still, Professor Gray has a point. Clearly, Hale sought to order his experience—both intel­lectual and spiritual—by recording his contemplations and speculations. Publication of such reflections was not requisite to this purpose.

That Hale was loath to publish for that reason goes only so far toward explaining why he eschewed publication of his legal work. There is a danger in allowing the notion of “privatization” to substitute for more cogent rea­sons. Whether Puritan or mainstream Anglican, the urge to “privatization” might have had a more profound motivation and one dictated by some­thing beyond idiosyncrasy. The contrast between the large corpus of legal and religious writings which he declined to publish and the considerable corpus of scientific papers that he chose to publish is arresting. His motives in publishing each of the three scientific works that appeared during his life are clear, and in the case of two of them because he was quite explicit in his reasons. In Difficiles Nugae, Hale maintained anonymity, but only, said he, because if his views were wrong, anonymity would make it easier for him to retract his error. In the earlier book on gravitation, Hale explained that though his propositions could be wrong, publishing them might encour­age better minds than his to deal with the subject. And Wilkins and Tillot­son had had no trouble overcoming Hale's genuine modesty in obtaining his consent to let them publish The Primitive Origination of Mankind.

The uncharitable might say that Hale the “natural philosopher” fell un­der the stricture of William Hudson, advanced a half-century before, as an example of

this cracking age, when all men in all professions... for fear of burying their talent, post to the press to publish to others that which they well understand not themselves.⁷

The same charge certainly cannot be leveled at Hale the jurist, for he well understood the law and that better than all others. But Hale the jurist and the pious Christian was reluctant to publish in law or religion precisely be­cause, whether or not he was aware of Hudson's criticism and dire warning, he acted on its premise. Natural philosophy was a neutral realm of endeavor; if too new to create orthodoxy also too new to be a heterodoxy challenging orthodoxy. It offered an area for debate but not dispute, enquiry that oper­ated on a plane above and beyond the controversial and divisive issues that rent asunder seventeenth century England. It was otherwise with law and religion. None was more sensitive than Hale to the explosiveness of those issues, their latent capacity to do mischief to the polity and to bring back misery to the people. Hale had not only experienced the English revolu­tion at first hand and at a high level. However reluctantly, and despite his scruples and his sentiments, he had served the revolutionary regime.

The English revolution of the mid-seventeenth century has two note­worthy distinctions. It was the first modern revolution fueled by an ide­ology of such potency as to create a national revolutionary ethos and to provide a continuum of democratic revolutionary change sweeping away virtually all political institutions and radically changing the social structure of the society. In this, it was at least the precursor if not the fount of the later revolutions, the American in 1775, the French in 1789, and the Russian in 1917.

Its second distinction is that it was a failed revolution. It failed to at­tain and to sustain the quantum of power requisite to effect lasting change undertaken by violent force, to create the force-that-succeeds in making a revolution. It failed to legitimize the force-that-succeeds by institutional­izing the changes accomplished by that force before the power created in the revolutionary ethos disappeared. It failed to sustain the revolutionary dynamic. The failure was as much symbolic as real. The English revolution judicially murdered a king but it could not fashion an acceptable substitute. “Lord Protector” Oliver Cromwell, a mere country squire, was to be guard­ian of England's liberties. His only success in protecting those liberties from a revolutionary army in which the sergeants and corporals were drawn from the most radical stratum in society grew from his singular capacity to check the army's excesses and play off its republican believers against its mille- narian fanatics. Except for Cromwell it would have been worse. But he could not pay off and dismiss the army, and he lacked sufficient legitimacy to govern without its pikes. Ould rednosed Noll that Grand Tirant—that scurrilous epitaph may be the most revealing description of Oliver, Lord Protector and his less-than-regal style.⁸ The nose fitted. So too did the job description, for Cromwell was indeed the wielder of the power of a despot. Perhaps he was a benign despot. He was certainly not a legitimate one, and Englishmen knew it.

Probably no Englishman was more aware of how profoundly legitima­cy had eluded Cromwell than was Matthew Hale. The quintessential lawyer in an age when politics used lawyers as handmaidens, Hale knew what was legitimate and what was not. He was also Royalist at least in his sympathies and a loyal adherent of the Church by law established. The beheading of Charles I and the abolition of episcopacy were profoundly illegitimate acts in his eyes. Hale had entered the Parliament’s Solemn League and Cove­nant as much from a conscientious concern to maintain religion as in order to continue a growing and lucrative practice at the bar. He accepted as just and necessary the early demand for reform of grievances by the Parliament, but when the Commons moved to the radical suppression of all the old institutions, much of the old ways, and at least some of the old law, Hale parted company with Parliament. By accident as well as by sentiment, he moved in Royalist circles. When he was admitted to Lincoln’s Inn in 1628, it was to the chambers of William Noy, a leading member of the Commons’ opposition in the 1620’s who finished his career in 1634 as Charles I’s At­torney-General, the author of that Stuart financial expedient of all finan­cial expedients, ship money. Hale succeeded to much of Noye’s clientele, including Archbishop William Laud, who mourned Noye as the Church of England’s best friend among the laity. Hale would be among Laud’s counsel at his treason trial in the Lords in 1643. In the course of the civil wars and their aftermath, Hale defended Royalists (impeached bishops, the Duke of Hamilton, Irish conspirator Connor Maguire, Presbyterian con­spirator Christopher Love). Indeed, tradition has it that Hale suggested to Charles I that he found his defense in 1649 on refusal to acknowledge the jurisdiction of Parliament to try him. Hale’s courage, scrupulousness, and learning attracted the favorable attention of his adversaries in court, and as Charles I had co-opted Noye twenty years before, so the victorious Parlia­ment and Cromwell sought to bring Hale into the revolutionary camp. Hale was prominent in a commission appointed in 1652 by the Parliament (or what was left of it, the Rump, after purges of the crypto-Royalists in the Commons and the entire House of Lords) for the reform of the law, chairing it during its early deliberations. There he was a voice of modera­tion and even of tradition against the radical calls to change the English nation's entire judicial and legal structure. Little came of the commission's labors, for the Rump was soon purged by Cromwell, and the Protectorship set up under his dictate. In 1653, Cromwell offered Hale an appointment as puisne justice of the Common Pleas. Hale initially refused the office: with accustomed candor and remarkable courage, he told Cromwell to his face that he was not satisfied as to his authority to appoint the judiciary. This elicited from Cromwell a retort that if probably apocryphal was nonetheless revealing:

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.⁹

Cromwell's threat had its own persuasiveness, and so too did the counsel of his Royalist friends, who urged Hale to serve in order to maintain the in­tegrity of the law and the administration ofjustice. Even after accepting and taking his seat on the bench which tried only civil cases, he was reluctant to try criminal cases when on the assize circuit on the grounds that to pass sentence, not least of death, under an authority derived only from usurpa­tion was wrong—a position which reinforced his compassion founded on religion and his professional sensitivity to a criminal law that punished so many minor offenses with death. Even in his civil work, Hale found oc­casion to question Cromwell's dedication to establishing justice, and he regretted his decision to serve a regime with such tenuous legitimacy. With Cromwell's death in 1658, Hale resigned the office, refusing to serve under Cromwell's son and successor, Richard, for whose rule there was not even a scintilla of legitimacy.

The Restoration of Charles II in 1660 in the twelfth year of the new king's reign—though not his rule, for save for an abortive filibustering expedition to take his throne early in the 1650's, Charles had been in exile on the Con­tinent—restored legitimate government and legitimacy to government. It did so by a settlement that at least theoretically consigned nineteen years of England's history to oblivion. The Restoration was raised on the tacit understanding that none of the great politico-constitutional and religious issues which had provoked the revolution would be settled categorically and emphatically. Held valid were those acts of the Long Parliament which in 1641 had received the royal assent (and which had abolished the most egregious grievances of the previous four decades of Stuart rule), but all the “ordinances” of the Interregnum between 1641 and 1660 were declared null and void. The old institutions of King, Lords, and Commons were re­erected, but the invitation to Charles to take his throne and the convoking of the Lords to participate in the process came from a “Convention” called into being by the last surviving Members of the Long Parliament which had made the revolution. There was no White Terror of revenge: the new king had spoken of excepting from mercy only those who had signed his father's death-warrant, and those who were executed or jailed came almost exclusively from this small group of regicides. The crown, the Church, and those who had remained faithful to both were reendowed for realty con­fiscated in the revolution, but there was no wholesale expropriation from those who had benefited by the revolution. The Church of England by law established was reestablished by law, with bishops and convocations and ecclesiastical courts, but its old comprehensiveness and singularity were not assured. A revolution which had been done in the whole was dismantled by half. An eminent scholar of Stuart politics summed up the Restoration as Charles II returning to England

to take over the constitution of 1641, the ancient constitution the parliamentar­ian gentry had always wanted to preserve.... King and gentry resumed their partnership, and resumed the attempt to secure an unattainable unity in reli­gion, and to work an outdated constitution.¹⁰

None was more skeptical than Hale that the Restoration of Charles II signaled the end of the most profound disruption in England's history. None was less convinced than he that a revolutionary epoch of twenty years' duration could be considered no more than a bitter memory, buried and unrepeatable. Charles might joke that he had no intention of “going upon his travels again,” but Hale would not have found humor in that witticism which raised for him and many others a possibility of enormous dreadful­ness.

Hale had special reason to be apprehensive. Pious Anglican and learned jurist, he recognized how far unity in religion was unattainable and the con­stitution outdated. It had taken only a few months for the hope of religious unity to be wrecked. The vengeful intransigence of the restored episcopate proved to be balanced perfectly by the inordinate expectations and unre­morseful justification of the Presbyterians, the most numerous group of dissenters, whose national conference in 1661, despite the best efforts of the Presbyterian divine Richard Baxter, broke up without reuniting with the Church. It took longer for the unresolved issues surrounding how England should be governed and what the relation between King and Parliament should be to surface. But by the 1670’s, when the fall of the Earl of Clar­endon removed a chief minister who had adeptly maintained the political balance, hostile factions readily moved into the open, playing ideological cards for political ends, raising the specter of another breakdown in the pol­ity. That the King’s heir was his devoutly Roman Catholic brother James, that the King himself inclined increasingly to ally with the principal Catho­lic power, the France of Louis XIV, and that the King ultimately became a fiscal client of France presented even the most loyal Parliament with a con­stant dilemma for which the outdated constitution could suggest no prac­tical solution, other than a proto-revolutionary attempt to exclude James from the throne when Charles would die. Hale did not live long enough to witness that parlous spectacle raised in the three Exclusion Parliaments of 1679 to 1681, but his political acuity was too sharp for him to have found much comfort in the political developments of the last decade of his life.

The tacit understanding upon which the Restoration settlement was worked, that none of the old issues would be settled, had a tacit corollary: those issues would not be raised, at least not as polemical theories to be threshed out in public. The Restoration was, until the Exclusion Crisis, strangely barren of political theory, or at least political theorizing in print. The best efforts of many of the best minds went into the new science, law­yers produced careful and increasingly sophisticated reports and practice books, and clerics (Anglicans and Dissenters alike) avoided dogmatic the­ology and ecclesiology in favor of moral theology and Scriptural exegesis. Hale exemplified this phenomenon. Yet, as a jurist he could not avoid re­flecting on the issues or eschew dealing with them in theoretical context. And he was too perspicacious, too keen in observation, and too long of memory not to realize that the old issues as new theory could surface at any time. He had a professional responsibility to be able to deal with them should circumstances demand. If he wrote merely for himself, he still pre­pared himself for the day when he might be obliged to deliver himself pub­licly and in print on disputed matters from which professionally he could not escape and upon which civic duty demanded his voice be heard.

In greatest part and beyond perfectionism and natural modesty, Hale did not publish his juristic work because he feared it would unnecessarily fuel the flames of political contentiousness. He was not wrong—his tender­ness not misplaced, his apprehensiveness not unfounded—and especially so in the case of The History of the Common Law. For this classic is not quite what it appears to be, what subsequent scholarship has accepted it as being, or even what perhaps Hale really supposed it was.

No serious recent scholar has argued that The History of the Common Law was an objective, modern, historiographical effort, an essay in positiv­ist history. That has not prevented serious recent scholars from justifiably finding considerable historical merit in the work, that it is “good history within the limits of evidence and scholarship available to anyone in the sev­enteenth century,” as Charles Gray noted.¹¹ Barbara Shapiro saw the work as “the first attempt at a true history of English law.”¹² D. E. C. Yale, who commands the legal historical scholarship of the late seventeenth century as no other scholar has, provided a brilliant, critical, and favorable analysis of Hale as “legal historian.”¹³ Even older generations of legal historians as­sessed the work in terms of its accuracy and usefulness. Frederic William Maitland praised it with faint damnation and William Searle Holdsworth lauded it as the best work on medieval English legal history prior to Pol­lock and Maitland!¹⁴ But while this is interesting and important, it misses the point. Matthew Hale was less concerned with writing the history of the common law (however history may be defined) as an exercise in jurispru­dential scholarship than in uncovering the politico-constitutional origins and extent of the common law. The History of the Common Law was a tract of the times, if not entirely for the times. It was a book that Hale correctly understood to be too controversial and too dangerously unsettling to be published until the uncertain present had become such a remote past that the lamb of stability could lie down with the lion of change. Or, until the lion threatening to eat the lamb, Chief Justice Matthew Hale could no lon­ger in good conscience remain silent.

If the History was a tract, then who was the enemy? There were in fact two enemies, together the most persistent and the most credible political theories produced by the revolution, each commanding the highest ground at their respective political extremes. Most venerable and most popular, the lowest common denominator of pro-Parliamentarian and ultimately revo­lutionary theory was that of the Norman Yoke. As this version of history had it, Anglo-Saxon liberties had flourished, thanks to the common law and to Parliament (both were believed to be so old) until the Norman Con­quest of William I in 1066 placed upon the English a “Norman Yoke.” For centuries thereafter, the Normans and their successors on the throne had subverted their subjects' liberties, turned the common law to regal ends, and threatened the erosion of the authority of Parliament. Sir Edward Coke had been a consistent, intemperate, and remarkably convincing (for want of evidence and despite the evidence), proponent of this theory. The theory was widely shared and Coke was often little more than first among equals, but his reputation as a jurist lent considerable cachet. The thrust of Coke's politico-constitutional theory was conservative and preservative: to restore and maintain the pre-Conquest liberties and institutions of the English na­tion and people by countering the threat posed by Stuart “despotism.” The idea of the Norman Yoke assumed a past golden age that might yet be recovered by cutting away the degenerative innovations of post-Conquest kingship. Usages which grew from time immemorial (that is, before 1066) carried more than merely the authority of the past; they were the touch­stone for the melioration of present discontents and the assurance of a bet­ter future.

The other theory was more pernicious because it was uncompromis­ingly radical, making no appeal to the past, providing nothing to conserve, and breaking explicitly with any prior usage or tradition that did not cor­respond to its uncompromising proposition:

In all cities or bodies politic not subordinate but independent, that one man or one council, to whom the particular members have given that common power, is called their sovereign, and his power the sovereign power; which consisteth in the power and strength that every of the members have transferred to him from themselves, by covenant.¹⁵

Thomas Hobbes's tract clearly went to the support of an absolute monar­chy, unrestrained and unrestrainable by instruments, institutions, or cus­toms. Hobbes elicited from Hale a counterblast which showed none of the respectful and almost shamefacedly apologetic disagreement which was Hale's wont in differing with Coke.¹⁶ To Hale, Hobbes's notions were es­pecially mischievous because they were likely to tar the restored monarch, once Hobbes's pupil, with tyranny-by-association. Even more fundamen­tally, what Hobbes sought was diametrically opposed to Hale's understand­ing of the constitution and the role of the common law in it.¹⁷

The History of the Common Law of England dealt exactly, learnedly, and candidly, though not explicitly, with both of the current politico-constitu­tional theories which Hale sought to counter. The Norman Yoke received short shrift in Chapters V-VI: William I took England as lawful claimant to be the successor to Edward the Confessor, Harold was the usurper, and there was no general alteration of the laws or the constitutional construct of the nation, and neither did William intend any. The dismal tableau of the law's steady degeneration fared no better at Hale's hands. The History was a sustained treatment of the crucial contributions of a long line of great and able monarchs to the development of the common law. Where Coke had come to bury Caesar—even the English Justinian, Edward I—Hale praised him. Toward legislation, Coke was cool at best, willing to believe the worst. While he worked routinely and matter-of-factly with statutes, the law he loved and trusted was law as discovered by the judges. In his eyes, much statute law was either unnecessary or corrosive of the good law already existing and declared by those lions under the throne, the judges. The best example is Coke's animus, bordering on the apoplectic, towards the statute De Donis Conditionalibus and the entails that this modification of common­law rules had made possible. Hale recognized the role of legislation in the maintenance of a responsive legal system able to deal with novel situations by innovative legislative creation. Hale was highly skeptical of the law as history, of the remote past as mechanically determinative of the present, especially in politically and constitutionally charged situations. One func­tion of the History of the Common Law was in fact to rid the lawyer of the Cokeian imperative of waiting upon Clio as not only the muse of history but also as the oracle of the law.

As for Hobbes, the History provides the detail supportive of Hale's briefer criticism of Hobbes's Dialogue. The law as Hale demonstrated its development was experiential and pragmatic, not victimized by mere “reason” (upon which Hobbes relied as justification for his great whale of sovereignty) and better than the arbitrariness and uncertainty of the sovereign's exercise of reason. The law as settled institution in the English experience stood as the buttress of mixed-monarchy, by which the King and the Estates in harmony and cooperation provided for exigencies by legislation and responded positively and melioratively to grievances. The proof of Hale's brilliant point in his response to Hobbes's Dialogue—that the falsity of the Hobbesian argument that there can be no qualification to the power of the sovereign is demonstrated by the laws and customs of England as facts which exist—is abundantly provided in the History (and it should warm the heart of every surviving Legal Realist). Indeed, the overall impact of Hale's History, insofar as it addressed the Hobbesian construct, was to point toward rights assured by law stronger and more fundamental than John Locke would admit or any polity would be prepared to accept until the debates at Philadelphia in the hot summer of 1787.

We have solved one mystery: why Hale did not publish. We are pre­sented with another. Would Hale ever have published his juristic writings, given his clear sensitivity to starting hares that might not be stopped short of another revolution? The answer, which can at best be an informed guess, is yes. The stances taken by Hale in many of his juristic writings, most notably in The History of the Common Law, were directly relevant to the great outburst of political theorizing unleashed after 1680 by the Exclu­sion Crisis. The flood included publication of a work written a half-century before and the reply to it written during the crisis but not published until after the Glorious Revolution of 1688: Robert Filmer's Patriarcha and John Locke's Two Treatises on Civil Government, respectively. If that great intellec­tual confrontation dominates the constitutional theory of the era because Locke's work was pressed into service, after the fact, as an apology for the events of 1688, the questions raised by Hobbes in the Dialogue published in 1680 were no less pressing, and had Hale been alive would undoubtedly have been addressed by him in the forms of those works that he had writ­ten earlier and kept in waiting against such an unhappy event. Indeed, the Commons' attempt to publish the History of the Pleas of the Crown in 1680 grew from the MPs' correct apprehension that Hale had something of great importance to say about the Crisis and would have contributed to the con­stitutional debate, if not weighed into the political fray, were he alive.

We must still solve one other mystery: absent a corpus of published juristic works, what was the foundation for Hale's contemporary fame as a scholarly jurist? The leading clue is to be found in Hale's silence during the Restoration period. By his manifest learning and impartial conduct on the bench, by his “natural philosophic” speculations published and con­veyed by discourse among the intellectuals of his day, and by his exemplary demeanor as a pious and devoted Churchman, Hale was held to be a man above partisanship and beyond the corruption of power. These were the qualities lauded by Gilbert Burnet, his younger contemporary and admir­ing first biographer, and they clearly reflected contemporary opinion about the Lord Chief Justice.¹⁸ Hale was unwilling to deliver himself upon ques­tions the discussion of which would breach the tacit political agreement of the Restoration that they be left in silence. This was taken as a token of his respect for the constitution and the common law and as a sign of his respect for the political balance and restraint that alone could avoid the horrors of the mid-century. Hale was very much the new-style judge, above the arena of politics, a servant of the law not of men, the judge whose unexception­able conduct during an exceptional career on all three of the great courts under two regimes at the poles of legitimacy would serve as the model for a judiciary which was finally guaranteed its independence from politics in 1701. The Act of Settlement, in the last year of the reign of William III, was the tombstone on the grave of a century of revolution. It assured a Protestant succession to the throne, went a long way toward making the King's ministers responsible to Parliament, and gave life tenure to judges who could only be removed for misconduct by the action of the King and Parliament together. Here was recognition that Justitia, blindfolded and holding the scales of judiciousness and the sword of justice, was the most notable victim of internecine strife and revolution, that if the law is silent among arms it is strangled by civil war. Hale's contemporaries understood that to his voice they should hearken because he said so little.

In the event, Hale would not say it to them, only to their heirs and to us in the posthumous publication of his works. He, who loved the sym­metry of Newton's celestial orbs, had the rare good fortune of being born and having died in equal symmetry, on two of the great feasts dear to the Anglican's heart (if not his soul): born on the Feast of All Saints, November i, 1609, he died on the Feast of the Nativity, December 25, 1676. With the pious modesty displayed over his entire life, Hale refused the offer to have the Sacrament brought to him at home, received it in the parish church on the Sunday before his death, and was buried in the churchyard at Alderly, Gloucestershire, rather than in the church. He had said “churches are for the living and church-yards for the dead.”¹⁹ Sir Matthew Hale was not a village Hampden, or a mute inglorious Milton—certainly not a Cromwell, even one guiltless of his country's blood. Yet Gray's “Elegy” can be as well Hale's epitaph as that of his more humble neighbors,

Far from the madding crowd's ignoble strife,

Their sober wishes never learn'd to stray;

Along the cool sequester'd vale of life,

They kept the noiseless tenor of their way.