There is a passage in the Life of Sir Matthew Hale which has struck us as not only interesting in itself, from the breadth and rectitude of judgment which it discloses, but also from the very direct bearing of the principle involved in it on some of the recent interdicts of the Supreme Civil Court. It serves to throw a kind of historic light, if we may so speak, on the judicial talent of our country in the present age as exhibited by the majority of our judges of the Court of Session––such a light as the ecclesiastical historian of a century hence will be disposed to survey it in, when coolly exercising his judgment on the present eventful struggle. One of not the least prominent nor least remarkable features of the Rebellion of 1745, says a shrewd chronicler of this curious portion of our history, was an utter destitution of military talent among the general officers of the British army. And the time is in all probability not very distant, in which the extreme lack of judicial genius betrayed by our courts of law in their present collision with the courts ecclesiastical, shall be regarded, in like manner, as one of the more striking characteristics of the Rebellion of the present day.

Sir Matthew Hale, as most of our readers must be aware, was a devoted Royalist. He was rising in eminence as a barrister at the time the Civil Wars broke out, and during that troublesome period he was employed as counsel for almost all the more eminent men of the King’s party who were impeached by the Parliament. He was counsel for 263 the Earl of Strafford, for Archbishop Laud, for the Duke of Hamilton, for the Earl of Holland, and for Lords Capel and Craven; and in every instance he exhibited courage the most unshrinking and devoted, and abilities of the highest order. When threatened in open court on one occasion by the Attorney-General, he replied that the threat might be spared: he was pleading in defence of those laws which the Government had declared it would maintain and preserve, and no fear of personal consequences should deter him in such circumstances from doing his duty to his client. When Charles himself was brought to his trial, Sir Matthew came voluntarily forward, and offered to plead for him also; but as the King declined recognising the competency of his judges, the offer was of course rejected. We all know how Malesherbes fared for acting a similar part in France. The counsel of Louis XVI. closed his honourable career on the scaffold not long after his unfortunate master: his generous advocacy of the devoted monarch cost him his life. But Cromwell, that ‘least flagitious of all usurpers,’ according to even Clarendon’s estimate, was no Robespierre; and were we called on to illustrate by a single instance from the history of each the very opposite characters of the Puritan Republicans of England and the Atheistical Republican of France, we would just set off against one another the fate of Malesherbes and the treatment of Sir Matthew. Cromwell, unequalled in his ability of weighing the capabilities of men, had been carefully scanning the course of the courageous and honest barrister; and, convinced that so able a lawyer and so good and brave a man could scarce fail of making an excellent judge, he determined on raising him to the bench. At this stage, however, a difficulty interposed, not in the liberal and enlightened policy of the Protector, who had no objections whatever to a conscientious Royalist magistrate, but in the scruples of Sir 264 Matthew, who at first doubted the propriety of taking office under what he deemed a usurped power.

The process of argument by which he overcame the difficulty, simple as it may seem, is worthy of all heed. Its very simplicity may be regarded as demonstrating the soundness of the understanding that originated and then acted upon it as a firm first principle, especially when we take into account the exquisitely nice character of the conscience which it had to satisfy. It is absolutely necessary for the wellbeing of society, argued Sir Matthew, that justice be administered between man and man; and the necessity exists altogether independently of the great political events which affect the sources of power, by changing dynasties or revolutionizing governments. The claim of the supreme ruler de facto may be a bad one; he may owe his power to some act of great political injustice––to an iniquitous war––to an indefensible revolution––to a foul conspiracy; but the flaw in his title cannot be regarded as weakening in the least the claim of the people under him to the administration of justice among them as the ordinance of God. The right of the honest man to be protected by the magistrate from the thief––the right of the peaceable man to be protected by the magistrate from the assassin––is not a conditional right, dependent on the title of the ruler: it is as clear and certain during those periods so common in history, when the supreme power is illegitimately vested, as during the happier periods of undisputed legitimacy. And to be a minister of God for the administration of justice, if the office be attainable without sin, is as certainly right at all times as the just exercise of the magistrate’s functions is right at all times. If it be right that society be protected by the magistrate, it is as unequivocally right in the magistrate to protect. But it is wrong to recognise as legitimate the supreme ruler of a country if his power be palpably usurped. English society, 265 under Cromwell, retains its right to have justice administered, wholly unaffected by the flaw in Cromwell’s title; but it would be wrong to recognise his title, contrary to one’s conviction, as void of any flaw. In short, to use the simple language of Burnet, Sir Matthew, ‘after mature deliberation, came to be of opinion, that as it was absolutely necessary to have justice and property kept up at all times, it was no sin to take a commission from usurpers, if there was declaration made of acknowledging their authority.’ Cromwell had breadth enough to demand no such declaration from Sir Matthew, and so the latter took his place on the bench. Nor is it necessary to say how he adorned it. In agreement with his political views, he declined taking any part in trials for offences against the State; but in cases of ordinary felonies, no one could act with more vigour and decision. During the trial of a Republican soldier, who had waylaid and murdered a Royalist, the colonel of the soldier came into court to arrest judgment, on the plea that his man had done only his duty, for that the person whom he had killed had been disobeying the Protector’s orders at the time; and to threaten the judge with the vengeance of the supreme authority, if he urged matters to an extremity against him. Sir Matthew listened coolly to his threats and his reasonings, and then, pronouncing sentence of death against the felon, agreeably to the finding of the jury, he ordered him out to instant execution, lest the course of justice should be interrupted by any interference on the part of Government. On another occasion, in which he had to preside in a trial in which the Protector was deeply concerned, he found that the jury had been returned, not by the sheriff or his lawful officer, but by order of the Protector himself. He immediately dismissed them, and, refusing to go on with the trial, broke up the court. Cromwell, says Burnet, was highly displeased with him on this occasion, and on his return from the circuit 266 in which it had occurred, told him in great anger that ‘he was not fit to be a judge.’ ‘Very true,’ replied Sir Matthew, whose ideas of the requirements of the office were of the most exalted character,––‘Very true;’ and so the matter dropped.

‘It is absolutely necessary,’ argued Sir Matthew, ‘to have justice kept up at all times,’ whatever flaws may exist in the title of the men in whom the supreme authority may chance to be vested. Never yet was there a simpler proposition; but there is sublimity in its breadth. It involves the true doctrine of subjection to the magistrate, as enforced by St. Paul. The New Testament furnishes us with no disquisitions on political justice: it does not say whether the title of Domitian to the supreme authority was a good title or no, or whether he should have been succeeded by Caligula, and Caligula by Claudius, or no; or whether or no the fact that Claudius was poisoned by the mother of Nero, derived to Nero any right to Claudius’s throne. We hear nothing of these matters. The magistracy described by St. Paul is the magistracy conceived of by Sir Matthew Hale ‘as necessary to be kept up at all times.’ An application of this simple principle to some of the more marked proceedings of our civil courts during the last two years will be found an admirable means of testing their degree of judicial wisdom. ‘It is absolutely necessary to have justice kept up at all times,’ and this not less necessary surely within than beyond the pale of the Church. It is necessary that a minister of the gospel ‘be blameless’––no drunkard, no swindler, no thief, no grossly obscene person; nor can any supposed flaw in the constitution of an ecclesiastical court disannul the necessity. A man may sit in that court in a judicial capacity whose competency to take his seat there may not have been determined by some civil court that challenges for itself an equivocal and disputed right to decide in the matter. 267 There may exist some supposed, or even some real, flaw in that supreme ecclesiastical authority of the country, through the exertion of which the Church is to be protected from the infection of vice and irreligion; but this flaw, real or supposed, furnishes no adequate cause why justice in the Church ‘should not be kept up.’ ‘Justice,’ said Sir Matthew, ‘must be kept up at all times,’ whatever the irregularities of title which may occur in the supreme authority. The great society of the Church has a right to justice, whether it be decided that the ministers of quoad sacra parishes have what has been termed a legal right to sit in ecclesiastical courts or no. The devout and honest church member has a right to be protected from the blasphemous profanities of the wretched minister who is a thief or wretched swindler; the chaste and sober have a right to be protected from the ministrations of the drunken and the obscene wretch, whose preaching is but mockery, and his dispensations of the sacrament sacrilege. The Church has a right to purge itself of such ministers; and these sacred rights no supposed, even no real, flaw in the constitution of its courts ought to be permitted to affect. ‘Justice may be kept up at all times.’ We have said that the principle of Sir Matthew Hale serves to throw a kind of historic light on the judicial talent of our country in the present age, as represented by the majority of our Lords of Session. It enables us, in some sort, to anticipate regarding it the decision of posterity. The list of cases of protection afforded by the civil court will of itself form a curious climax in the page of some future historian. Swindling will come after drunkenness in the series, theft will follow after swindling, and the miserable catalogue will be summed up by an offence which we must not name. And it will be remarked that all these gross crimes were fenced round and protected in professed ministers of the gospel by the interference of the civil courts, just because a majority of the 268 judges were men so defective in judicial genius that they lost sight of the very first principles of their profession, and held that ‘justice is not to be kept up at all times.’ But we leave our readers to follow up the subject. Some of the principles to which we have referred may serve to throw additional light on the remark of Lord Ivory, when recalling the interdict in the Southend case. ‘Even were the objection against the competency of quoad sacra ministers to be ultimately sustained,’ said his Lordship, ‘I am disposed to hold that the judicial acts and sentences of the General Assembly and its Commission, bona fide pronounced in the interim, should be given effect to notwithstanding.’