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Matthew Hale (jurist)
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Sir Matthew Hale SL
(1 November 1609 — 25 December 1676) was an influential English barrister
, judge and jurist most noted for his treatise Historia Placitorum Coronæ
, or The History of the Pleas of the Crown. Born to a barrister and his wife, who had both died by the time he was 5, Hale was raised by his father's relative, a strict Puritan
, and inherited his faith. In 1626 he matriculated at Magdalen Hall, Oxford, (now Hertford College) intending to become a priest, but after a series of distractions was persuaded to become a barrister like his father thanks to an encounter with a Serjeant-at-Law
in a dispute over his estate. On 8 November 1628 he joined Lincoln's Inn
, where he was called to the Bar on 17 May 1636. As a barrister, Hale represented a variety of Royalist
figures during the prelude and duration of the English Civil War
, including Thomas Wentworth
and William Laud
; it has been hypothesised that Hale was to represent Charles I
at his state trial, and conceived the defence Charles used. Despite the Royalist loss, Hale's reputation for integrity and his political neutrality saved him from any repercussions, and under the Commonwealth of England
he was made Chairman of the Hale Commission
, which investigated law reform. Following the Commission's dissolution, Oliver Cromwell
made him a Justice of the Common Pleas
.
As a judge, Hale was noted for his resistance to bribery and his willingness to make politically unpopular decisions which upheld the law. He sat in Parliament, either in the Commons or the Upper House
, in every Parliament from the First Protectorate Parliament
to the Convention Parliament, and following the Declaration of Breda
was the Member of Parliament who moved to consider Charles II
's reinstatement as monarch, sparking the English Restoration
. Under Charles, Hale was made first Chief Baron of the Exchequer and then Chief Justice of the King's Bench. In both positions, he was again noted for his integrity, although not as a particularly innovative judge. Following a bout of illness he retired on 20 February 1676, dying ten months later on 25 December 1676.
Hale is almost universally appreciated as an excellent judge and jurist, with his central legacy coming through his written work, published after his death. His Historia Placitorum Coronæ, dealing with capital offences against the Crown, is considered "of the highest authority", while his Analysis of the Common Law is noted as the first published history of English law and a strong influence on William Blackstone
's Commentaries on the Laws of England
. Hale's jurisprudence struck a middle-ground between Edward Coke
's "appeal to reason" and John Selden
's "appeal to contract", while refuting elements of Thomas Hobbes
's theory of natural law. His thoughts on marital rape, expressed in the Historia, continued in English law until 1991, and he was cited in court as recently as 1993.
to Robert Hale, a barrister of Lincoln's Inn
, and Joanna Poyntz. His father gave up his practise as a barrister several years before Hale's birth "because he could not understand the reason of giving colour in pleadings". This refers to a process through which the defendant would refer a case over the validity of his title to land to a judge instead of a jury, through claiming a (false) allegation about this right. Such an allegation would be a question of law rather than a question of fact, and as such decided by the judge with no reference to the jurors. Although in common use, Robert Hale apparently saw this as deceptive and "contrary to the exactness of truth and justice which became a Christian; so that he withdrew himself from the inns of court to live on his estate in the country". John Hostettler, in his biography of Matthew Hale, points out that his father's concerns about giving colour in pleadings could not have been very strong "since he not only retired to his estate at Alderley where he managed to live on his wife's inherited income, but also directed in his will that Matthew should make a career in the law".
Both of Hale's parents died before he was five, Joanna in 1612, and Robert in 1614. It was then revealed that Robert had been so generous in giving money to the poor that at his death his estate provided only £100 of income a year, of which £20 was to be paid to the local poor. Hale thus passed into the care of Anthony Kingscot, one of his father's relatives. A strong Puritan
, Kingscot had Hale taught by a Mr. Stanton, the vicar of Wotton
known as the "scandalous vicar" due to his extremist puritan views. On 20 October 1626, at the age of 16, Hale matriculated
at the University of Oxford
as a member of Magdalen Hall, with the goal of becoming a priest. Both Kingscot and Stanton had intended this to be his career, and his education had been conducted with that in mind. He was taught by Obadiah Sedgwick
, another Puritan, and excelled in both his studies and fencing. Hale also regularly attended church, private prayer-meetings, and was described as "simple in his attire, and rather aesthetic". After a company of actors came to Oxford, Hale attended so many plays and other social activities that his studies began to suffer, and he began to turn away from Puritanism. In light of this, he abandoned his desire to become a priest and instead decided to become a soldier. His relatives were unable to persuade him to become a priest, or even a lawyer, with Hale describing lawyers as "a barbarous set of people unfit for anything but their own trade".
His plans to become a soldier died after a legal battle concerning his estate, in which he consulted John Glanville
, a celebrated lawyer who later became the first attorney to be appointed as a judge. Glanville successfully persuaded Hale to become a lawyer, and after leaving Oxford at 20 before obtaining a degree, he joined Lincoln's Inn
on 8 November 1628. Fearing that the theatre might dissuade him from his legal studies as it had at Oxford, he swore "never to see a stage-play again". At around this time he was drinking with a group of friends when one of them became so drunk he fainted; Hale prayed to God to forgive and save his friend, and forgive him for his previous excesses. His friend recovered, and Hale was restored to his Puritain faith, never drinking to someone's health again (not even drinking to the King) and going to church every Sunday for 36 years. He instead settled into his studies, working for up to 16 hours a day during his first two years at Lincoln's Inn before reducing it to eight hours due to health concerns. As well as reading the law reports and statutes, Hale also studied the Roman civil law
and jurisprudence
. Outside of the law, Hale studied anatomy, history, philosophy and mathematics. He refused to read the news or attend social events, and occupied himself entirely with his studies and visits to church.
On 17 May 1636, Hale was called to the Bar by Lincoln's Inn, and immediately became the pupil of William Noy
. Hale and Noy became close friends, to the point where he was referred to as "the young Noy", and more crucially he also met and befriended John Selden
, a "man of almost universal learning, whose theories were to dominate much of [Hale's] later thought". Selden persuaded him to continue with his studies outside the law, and much of Hale's written work is concerned with theology and science as well as legal theory. Hale gained a good legal practise, although he allowed his Christian faith to govern his work. He sought to help the court reach a just verdict, whatever his client's concerns, and normally returned half his fee or charged a standard fee of 10 shillings rather than allow costs to inflate. He refused to accept unjust cases, and always tried to be on the "right" side of any case; John Campbell
wrote that "If he saw that a cause was unjust, he for a great while would not meddle further in it but to give his advice that it was so; if the parties after that would go on, they were to seek another counsellor, for he would assist none in acts of injustice".
Despite this, he was wealthy enough to purchase land worth £4,200 in 1648. He was in great demand; law reporters began recording his cases and in 1641 he advised Thomas Wentworth
, the first Earl of Strafford, over his attainder
for high treason. Although unsuccessful, Hale was then called to represent William Laud
, the Archbishop of Canterbury
, during his impeachment by the House of Commons in October 1644. Hale, along with John Herne, argued that none of Laud's alleged offences constituted treason, and that the Treason Act 1351
had abolished all common law treasons. John Wilde
, arguing for the prosecution, admitted that none of Laud's actions amounted to treason, but argued that all of them together did. Herne, in his arguments written by Hale, retorted that "I crave your mercy, [Wilde]. I never understood before this time that two hundred couple of black rabbits would make a black horse!" Laud's case began to fail, and so Parliament simply issued an Act of Attainder
which declared them guilty and sentenced them to death. After the capture of Charles I
, Hale was expected to defend him, and indeed offered to do so; the King refused to submit to the court, claiming he did not recognise its jurisdiction. Edward Foss
writes, based on the statement of Charles Runnington, that it was Hale who actually provided the King with this defence, and that it was only because the defence prevented any counsel being called for the King that Hale did not appear in court.
When it became clear that the King was losing the Civil War, and only Oxford held out, Hale decided to act as a commissioner to negotiate its surrender, fearing that the city might otherwise be destroyed. Thanks to his intercession, honourable terms were reached, and the libraries preserved. Despite practising in the politically charged environment of the English Civil War
and primarily defending opponents of the resulting Commonwealth of England
, Hale's reputation did not suffer. First, he largely kept out of the war, even ignoring news of its progress, and instead translating The Life and Death of Pomponious Atticus into English. Second, he was acknowledged as universally able and of high integrity during his cases, retorting to those who complained of his defence of the Royalists that he was "pleading in defence of the laws which they professed they would maintain and preserve; and that he was doing his duty to his client and was not to be daunted by such threatenings".
, there was considerable desire for law reform. Many judges and lawyers were corrupt, and the criminal law followed no real reason or philosophy. Any felony was punishable by death, proceedings were in a form of Norman French
, and judges regularly imprisoned judges for reaching a verdict they disagreed with. Oliver Cromwell and the Rump Parliament
aimed to establish a "new society", which included reforming the law. To that end, on 30 January 1652 Hale was appointed chairman of a commission to investigate law reform, which soon became known as the Hale Commission. The Commission's official remit was defined by the Commons; "taking into consideration what inconveniences there are in the law; and how the mischiefs which grow from delays, the chargeableness and irregularities in the proceedings in the law may be prevented, and the speediest way to reform the same, and to present their opinions to such committee as the Parliament shall appoint". The Commission consisted of eight lawyers and 13 laymen, which sat from 23 January approximately three times a week.
The Commission recommended various changes, such as reducing the use of the death penalty, allowing defendants access to legal counsel, legal aid and the abolition of peine forte et dure as a torture mechanism. Dissolved on 23 July 1652 after producing 16 bills, none of the Commission's recommendations immediately made it into law, although two (to abolish fines for original writs
and to develop procedures for civil marriages) were brought into force through statutes by the Barebone's Parliament. Almost all of the recommendations eventually became part of English law, with John Hostettler, in his biography of Hale, writing that if the measures had been put into law immediately, "we would have been honouring such pioneers for their farsightedness in enhancing our legal system and the concept of justice".
, noting Hale's abilities, asked him to become a Justice of the Common Pleas
. Although Hale considered that taking this commission would make others think he supported the Commonwealth, he was persuaded to do so, replacing John Puleston. Only Serjeants-at-Law could become judges, and as such Hale was made a Serjeant on 25 January 1653. He was formally appointed a Justice of the Court of Common Pleas
, one of the three principal Westminster courts, on 31 January 1653, on the condition that he "would not be required to acknowledge the usurper's authority". He also refused to put people to death for offences against the government; he believed that because the government authorising him to do so was an illegal one, "putting men to death on that account was murder". William Blackstone
later wrote that "if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder; and upon this argument Sir Matthew Hale himself, though he accepted the place of a judge of the Common Pleas under Cromwell's government, yet declined to sit on the crown side at the assizes, and try prisoners, having very strong objections to the legality of the usurper's commission". Hale also made decisions which negatively impacted on the Commonwealth, executing a soldier for murdering a civilian in 1655, and actively refusing to attend a court hearing outside term time. On another occasion, Cromwell personally selected a jury in a trial he was concerned with, something contrary to law; as a result, Hale dismissed the jury and refused to hear the case. On 15 May 1659, Hale chose to retire, and was replaced by John Archer
.
On 3 September 1654, the First Protectorate Parliament
was called; of the 400 English members, only two were lawyers — Hooke, a Baron of the Exchequer, and Hale, who had been returned for his home county of Gloucestershire. Hale was an active Member of Parliament (MP), persuading the Commons to reject a motion to destroy the Tower of London
's archives, and introducing several motions to preserve the authority of Parliament. The first was that the government should be "in a Parliament and a single person limited and restrained as the Parliament should think fit", and he later proposed that the English Council of State
be subject to re-election every three years by the House of Commons, that the militia should be controlled by Parliament, and that supplies should only be granted to the army for limited periods. While these proposals got support, Cromwell refused to allow any MPs into the Commons until they signed an oath recognising his authority, which Hale refused to do. As such, none of them were passed. Dissatisfied with the First Protectorate Parliament, Cromwell dissolved it on 22 January 1655.
A Second Protectorate Parliament
was called on 17 September 1656, which wrote a constitution titled Humble Petition and Advice that called for the creation of an Upper House
to perform the job of the former House of Lords. Cromwell accepted this constitution, and in December 1657 nominated the Upper House's members. Hale, as a judge, was called to it. This new House's extensive jurisdiction and authority was immediately questioned by the Commons, and Cromwell responded by dissolving the Parliament on 4 February 1658. On 3 September 1658, Oliver Cromwell died and was replaced by his son, Richard Cromwell
. Richard Cromwell summoned a new Parliament
on 27 January 1659, and Hale was returned for the University of Oxford. Richard Cromwell was a weak leader, however, and ruled for only 8 months before resigning. On 16 March 1660 General Monck forced the Parliament to vote for its own dissolution and call new elections. At the same time, Charles II
made the Declaration of Breda
, and when the Convention Parliament met on 25 April 1660 (with Hale a member from Gloucestershire again) it immediately began negotiations with the King. Hale moved in the Commons that "a committee might be appointed to look into the overtures that had been made, and the concessions that had been offered, by [Charles I]" and "from thence to digest such propositions, as they should think fit to be sent over to [Charles II]" who was still in Breda. On 1 May Parliament restored the King, and Charles II landed in Dover three weeks later, prompting the English Restoration
.
Hale's first task in the new regime was as part of the Special Commission of 37 judges who tried the 29 regicides not included in the Declaration of Breda, between 9 and 19 October 1660. All were found guilty of treason, and 10 of them were hanged, drawn and quartered
. Sitting as a judge in this trial led to some viewing Hale as hypocritical, with F.A. Inderwick later writing "I confess to a feeling of pain at finding [Hale] in October 1660, sitting as a judge at the Old Bailey, trying and condemning to death batches of the regicides, men under whose orders he had himself acted, who had been his colleagues in Parliament, with whom he had sat on committees to alter the law". Perhaps as reward for this, he became Chief Baron of the Exchequer on 7 November 1660, replacing Sir Orlando Bridgeman. Hale had no wish to receive the knighthood that accompanied this appointment and so tried to avoid being near the King; in response, the Lord Chancellor
Lord Clarendon
invited him to his house, where the King was present. Hale was knighted on the spot.
There were many instances of parties to a case attempting to bribe Hale. When a Duke approached him before a case "to help the judge understand a case that was to come before him", Hale said that he would only hear about cases in court. In another case, he was sent venison by a party. After noticing the man's name and verifying that he had indeed sent Hale some venison, Hale refused to let the case proceed until he had paid the man for the food. When Sir John Croke, suspected in engaging in a conspiracy, sent him some sugar loaves to excuse his absence from a case, Hale remarked that "I cannot think that Sir John believes that the King's Justices come into the country to take bribes. Some other person, having a design to put a trick upon him, sent them in his name". Hale returned the loaves, and refused to continue until Croke appeared before him. Hale was noted during this period for giving latitude to those accused of religious impropriety, and through doing so "secured the confidence and affection of all classes of his countrymen". His knowledge of equity was considered as great as his knowledge of the law, and Lord Nottingham, considered the "father of equity", "worshipped Hale as a great master".
On 2 September 1666, the Great Fire of London
broke out. Over 100,000 people were made homeless, and by the time the fire ended over 13,000 houses and 400 streets had been destroyed. An Act of Parliament enacted on 8 February 1667 constituted a Court of Fire, tasked with dealing with property disputes over ownership, liability and the rebuilding of the city. Hale was tasked with sitting in this court, which met in Clifford's Inn
, and heard 140 of the 374 cases the court dealt with during its first year in operation.
On 18 May 1671, Hale was made Chief Justice of the King's Bench after the death of John Kelynge
. Edward Turnour replaced him as Chief Baron of the Exchequer. Hale was not noted as a particularly innovative judge, but took pains to ensure that his decisions were easy to understand and informative. Roger North wrote that "I have known the Court of King's Bench sitting every day from eight to 12, and the Lord Chief Justice Hale's 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 counsel, so that the court might have been taken for an academy of sciences as well as the seat of justice". He was noted for allowing counsel to fix any problems with pleadings, and for letting them correct him if he made an error in his summing up. He disliked eloquence, writing that "If the judge or jury has a right understanding it signifies nothing but a waste of time and loss of words, and if they are weak, and easily wrought upon, it is a more decent way of corrupting them by bribing their fancies and biassing their affections." As a judge, however, he was noted by Lord Nottingham as the greatest orator on the bench.
. After suffering for ten more months, Hale died on 25 December 1676 at his country home, Alderley House
. He was buried in the churchyard at Alderley next to his first wife's tomb, with a monument erected that reads: His estate was largely left for his widow, with his legal texts given to his grandson Gabriel if Gabriel chose to study the law, and his more valuable manuscripts and books given to Lincoln's Inn
. The male line of his family died out in 1784 with the death of Matthew Hale, his great grandson; also a barrister.
, a Serjeant-at-Law under James I
. Moore and Hale had 10 children, but she was evidently a highly extravagant woman, with Hale warning his children that "an idle or expensive wife is most times an ill bargain, though she bring a great portion". Moore died in 1658, and in 1667 Hale married Anne Bishop, his housekeeper. Descriptions of Bishop differ; Roger North
wrote that "[Hale] was unfortunate in his family; for he married his own servant made, and then, for an excuse, said there was no wisdom below the girdle". Richard Baxter
, on the other hand, described Anne as "one of [Hale's] own judgment and temper, prudent and loving, and fit to please him; and that would not draw on him the trouble of much acquaintance and relations". Hale himself described her as a "most dutiful, faithful, and loving wife" who was appointed an executrix on his death.
in his Lives of the Chief Justices of England, wrote that Hale was "one of the most pure, the most pious, the most independent, and the most learned" of judges. Henry Flanders, writing in the University of Pennsylvania Law Review
, describes Hale during his lifetime as "the most learned, the most able, the most honorable man to be found in the profession of the law". Hale's writings have been cited as recently as 1993, in the case of R v Kingston, where the Court of Appeal relied on his statement that "drunkenness is not a defence" to uphold a conviction. William Holdsworth argues that it was his learning in Roman law and jurisprudence which allowed him to work so effectively; because he had seen other legal systems at work, he "could both criticise the defects of English law and state its rules in a more orderly form than they had ever been stated before". Hale's political neutrality and personal integrity has been attributed to his Puritainism, and his support of the common law; "Regimes come and go, the common law abides...For Hale...legal continuity was vital for civic identity".
Much comparison has been made of Hale with Edward Coke
. Campbell considered Hale to be the superior lawyer, because while he failed to engage in public life he treated law as a science, and maintained judicial independence and neutrality. Hostettler, while considering Hale a better lawyer than Coke and more influential, says that Coke was better overall. While Hale was in possession of judicial impartiality, and his written works are considered highly important, his lack of venture into public affairs limited his progressive influence. Coke's active intervention allowed him to "breath new life into medieval law and use it to oppose conciliar justice", encouraging judges to be more independent and "unfettered except by the common law whose supremacy it was their duty to uphold". J.H. Corbett, writing in the Alberta Law Quarterly, notes that with Hale's popularity at the time (Parliamentary constituencies "fought over the privilege of returning him") he could have been just as successful as Coke if he had chosen to take an active role in public affairs.
Hale's posthumous legacy is his written work. He wrote a variety of texts, treatises and manuscripts, the most major of which are A History and Analysis of the Common Law of England, published in 1713, and the Historia Placitorum Coronæ
, or The History of the Pleas of the Crown, published in 1736.
The Analysis was based on lectures he gave to students, and was most likely not intended to be published; it is considered the first history of English law ever written. Divided into 13 chapters, the book dealt with the history of English law and some suggestions for reform. William Blackstone
, when writing his Commentaries on the Laws of England
, noted in his preface that "of all the earlier schemes for digesting the Laws of England the most natural and scientific, as well as the most comprehensive, appeared to be that of Sir Matthew Hale in his posthumous Analysis of the Law". Hale proposed the creation of county courts, and also drew a strong distinction between written laws, such as statutes, and customary, unwritten laws. He also argued that the common law was subject to Parliament, far before the confirmation of Parliamentary supremacy, and that the law should protect the rights and civil liberties of the King's subjects. He also argued for the confirmation of trial by jury, which he described as "the best mode of trial in the world", while the 13th chapter divided the law into the laws of persons and of property, and dealt with the rights, wrongs and remedies recognised by the law at the time. William Holdsworth, himself considered one of the greatest common law historians, described it as "the ablest introductory sketch of a history of English law that appeared till the publication of Pollock and Maitland's volumes in 1895".
The Historia is perhaps Hale's most famous work. Pleas of the Crown were capital offences committed "against the peace of our Lord the King, his Crown and dignity"; as such, the book dealt with capital crimes and the associated procedure. The 710-page work followed the pattern of Coke
's Institutes of the Lawes of England
, but was far more methodical; James Fitzjames Stephen
said that Hale's work "was not only of the highest authority but shows a depth of thought which puts it in quite a different category from Coke's Institute... [it] is far more of a treatise and far less of an index or mere work of practice". The book dealt with the criminal capacity of infants, insanity and idiocy
, the defence of drunkenness, capital offences, treason, homicide and theft. In the 19th century, Andrew Amos
wrote a critique of the Historia titled Ruins of Time exemplified in Sir Matthew Hale's History of the Pleas of the Crown, which both criticised and praised Hale's work while directing the main criticism at the judges and lawyers who cited the Historia without considering that it was dated.
Hale also reorganised the first of Coke's Institutes, which dealt with Thomas de Littleton
's Treatise on Tenures; Hale's edition was the most commonly used, and the first to extract Coke's broader philosophical points. His written works, however, were fragmentary, and did not individually lay out his jurisprudence. Harold J. Berman
, writing in the Yale Law Journal
, notes that it is only "possible by a study of the entire corpus of Hale's writings to reconstruct the coherent legal philosophy that underlies them".
Hale's writings on witchcraft and marital rape were extremely influential. In 1662, he was involved in "one of the most notorious of the seventeenth century English witchcraft trials
", where he sentenced two women (Amy Duny and Rose Callender) to death for witchcraft, sorcery and "unnatural love". The judgment of Hale in this case was extremely influential in future cases, and was used in the Salem witch trials
to justify the forfeiture of the accused's lands. G. Geis, writing in the British Journal of Law and Society, ties Hale's opinions on witchcraft in with his writings on marital rape, which are found in the Historia. Hale believed that a marriage was a contract, which merged the legal entities of husband and wife into one body. As such, "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract". This exception to the law of rape existed in England and Wales
until 1991, primarily due to his influence, until it was repealed by the House of Lords
in R v R.
argued against Coke's theory. Along with Francis Bacon
, he argued for natural law
, created by the King's authority, not by any individual judge. Hobbes felt that there was no skill unique to lawyers, and that the law could be understood not through Coke's "reason" (the method used by lawyers) but through understanding the King's instructions. While the judges did make law, this was only valid because it was "tacitly confirmed (because not disapproved) by the [King]".
Hale's legal theory was highly influenced by both Coke and Selden. He argued that the making of the law was a contract, but that it was subject to a test of "reasonable" character, something that only the judges could rule on. In this way, he sat in a middle ground between Selden and Coke. This was in conflict with the argument of Hobbes. In 1835, Hale's "Reflections on Hobbes' Dialogue" was discovered; Frederick Pollock posits that since Hobbes' Dialogue was first published in 1681, six years after Hale's death, Hale must have seen an early copy or draft. D.E.C. Yale, writing in the Cambridge Law Journal
, suggests that Chief Justice Vaughan had access to the Dialogue, and may have passed a copy on to Hale before his death. In his Reflections, Hale agreed with Coke that the judge's task was to bring the reason of the common law (the coherence of the legal system) in line with the reason of the law in question (to justify that law). He disagreed with Hobbes that a layman could understand the law, saying that "he that hath been educated in the study of the law hath a great advantage over those that have been otherwise exercised". The distinction between Coke and Hale is that Hale agreed with Selden that law was created through agreement, and disagreed that reason had an inherent binding power. Hale agreed with Hobbes that the interpretation of the law could not be left to individual reason, and that the law is not an exact science; the best that can be produced is a set of laws which give a reasonable outcome in the majority of cases.
Serjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
(1 November 1609 — 25 December 1676) was an influential English barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
, judge and jurist most noted for his treatise Historia Placitorum Coronæ
Historia Placitorum Coronæ
Historia Placitorum Coronæ or The History of the Pleas of the Crown is an influential treatise on the criminal law of England, written by Sir Matthew Hale and published posthumously by Sollom Emlyn in 1736...
, or The History of the Pleas of the Crown. Born to a barrister and his wife, who had both died by the time he was 5, Hale was raised by his father's relative, a strict Puritan
Puritan
The Puritans were a significant grouping of English Protestants in the 16th and 17th centuries. Puritanism in this sense was founded by some Marian exiles from the clergy shortly after the accession of Elizabeth I of England in 1558, as an activist movement within the Church of England...
, and inherited his faith. In 1626 he matriculated at Magdalen Hall, Oxford, (now Hertford College) intending to become a priest, but after a series of distractions was persuaded to become a barrister like his father thanks to an encounter with a Serjeant-at-Law
Serjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
in a dispute over his estate. On 8 November 1628 he joined Lincoln's Inn
Lincoln's Inn
The Honourable Society of Lincoln's Inn is one of four Inns of Court in London to which barristers of England and Wales belong and where they are called to the Bar. The other three are Middle Temple, Inner Temple and Gray's Inn. Although Lincoln's Inn is able to trace its official records beyond...
, where he was called to the Bar on 17 May 1636. As a barrister, Hale represented a variety of Royalist
Cavalier
Cavalier was the name used by Parliamentarians for a Royalist supporter of King Charles I and son Charles II during the English Civil War, the Interregnum, and the Restoration...
figures during the prelude and duration of the English Civil War
English Civil War
The English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...
, including Thomas Wentworth
Thomas Wentworth, 1st Earl of Strafford
Thomas Wentworth, 1st Earl of Strafford was an English statesman and a major figure in the period leading up to the English Civil War. He served in Parliament and was a supporter of King Charles I. From 1632 to 1639 he instituted a harsh rule as Lord Deputy of Ireland...
and William Laud
William Laud
William Laud was Archbishop of Canterbury from 1633 to 1645. One of the High Church Caroline divines, he opposed radical forms of Puritanism...
; it has been hypothesised that Hale was to represent Charles I
Charles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
at his state trial, and conceived the defence Charles used. Despite the Royalist loss, Hale's reputation for integrity and his political neutrality saved him from any repercussions, and under the Commonwealth of England
Commonwealth of England
The Commonwealth of England was the republic which ruled first England, and then Ireland and Scotland from 1649 to 1660. Between 1653–1659 it was known as the Commonwealth of England, Scotland and Ireland...
he was made Chairman of the Hale Commission
Hale Commission
The Hale Commission was a Commission established by the Commonwealth of England on 30 January 1652 and led by Sir Matthew Hale to investigate law reform...
, which investigated law reform. Following the Commission's dissolution, Oliver Cromwell
Oliver Cromwell
Oliver Cromwell was an English military and political leader who overthrew the English monarchy and temporarily turned England into a republican Commonwealth, and served as Lord Protector of England, Scotland, and Ireland....
made him a Justice of the Common Pleas
Justice of the Common Pleas
Justice of the Common Pleas was a puisne judicial position within the Court of Common Pleas of England and Wales, under the Chief Justice. The Common Pleas was the primary court of common law within England and Wales, dealing with "common" pleas...
.
As a judge, Hale was noted for his resistance to bribery and his willingness to make politically unpopular decisions which upheld the law. He sat in Parliament, either in the Commons or the Upper House
Cromwell's Other House
The Other House , established by the Lord Protector Oliver Cromwell under the terms of the Humble Petition and Advice, was one of the two chambers of the Parliaments that legislated for England and Wales, Scotland and Ireland, in 1658 and 1659, the final years of the Protectorate.During the Rule of...
, in every Parliament from the First Protectorate Parliament
First Protectorate Parliament
The First Protectorate Parliament was summoned by the Lord Protector Oliver Cromwell under the terms of the Instrument of Government. It sat for one term from 3 September 1654 until 22 January 1655 with William Lenthall as the Speaker of the House....
to the Convention Parliament, and following the Declaration of Breda
Declaration of Breda
The Declaration of Breda was a proclamation by Charles II of England in which he promised a general pardon for crimes committed during the English Civil War and the Interregnum for all those who recognised Charles as the lawful king; the retention by the current owners of property purchased during...
was the Member of Parliament who moved to consider Charles II
Charles II of England
Charles II was monarch of the three kingdoms of England, Scotland, and Ireland.Charles II's father, King Charles I, was executed at Whitehall on 30 January 1649, at the climax of the English Civil War...
's reinstatement as monarch, sparking the English Restoration
English Restoration
The Restoration of the English monarchy began in 1660 when the English, Scottish and Irish monarchies were all restored under Charles II after the Interregnum that followed the Wars of the Three Kingdoms...
. Under Charles, Hale was made first Chief Baron of the Exchequer and then Chief Justice of the King's Bench. In both positions, he was again noted for his integrity, although not as a particularly innovative judge. Following a bout of illness he retired on 20 February 1676, dying ten months later on 25 December 1676.
Hale is almost universally appreciated as an excellent judge and jurist, with his central legacy coming through his written work, published after his death. His Historia Placitorum Coronæ, dealing with capital offences against the Crown, is considered "of the highest authority", while his Analysis of the Common Law is noted as the first published history of English law and a strong influence on William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
's Commentaries on the Laws of England
Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...
. Hale's jurisprudence struck a middle-ground between Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
's "appeal to reason" and John Selden
John Selden
John Selden was an English jurist and a scholar of England's ancient laws and constitution and scholar of Jewish law...
's "appeal to contract", while refuting elements of Thomas Hobbes
Thomas Hobbes
Thomas Hobbes of Malmesbury , in some older texts Thomas Hobbs of Malmsbury, was an English philosopher, best known today for his work on political philosophy...
's theory of natural law. His thoughts on marital rape, expressed in the Historia, continued in English law until 1991, and he was cited in court as recently as 1993.
Early life and education
Hale was born on 1 November 1609 in Alderley, GloucestershireAlderley, Gloucestershire
Alderley is a village and civil parish in the Stroud district of Gloucestershire, England, about fourteen miles southwest of Stroud and two miles south of Wotton-under-Edge. It lies underneath Winner Hill, between two brooks, the Ozleworth and Kilcott...
to Robert Hale, a barrister of Lincoln's Inn
Lincoln's Inn
The Honourable Society of Lincoln's Inn is one of four Inns of Court in London to which barristers of England and Wales belong and where they are called to the Bar. The other three are Middle Temple, Inner Temple and Gray's Inn. Although Lincoln's Inn is able to trace its official records beyond...
, and Joanna Poyntz. His father gave up his practise as a barrister several years before Hale's birth "because he could not understand the reason of giving colour in pleadings". This refers to a process through which the defendant would refer a case over the validity of his title to land to a judge instead of a jury, through claiming a (false) allegation about this right. Such an allegation would be a question of law rather than a question of fact, and as such decided by the judge with no reference to the jurors. Although in common use, Robert Hale apparently saw this as deceptive and "contrary to the exactness of truth and justice which became a Christian; so that he withdrew himself from the inns of court to live on his estate in the country". John Hostettler, in his biography of Matthew Hale, points out that his father's concerns about giving colour in pleadings could not have been very strong "since he not only retired to his estate at Alderley where he managed to live on his wife's inherited income, but also directed in his will that Matthew should make a career in the law".
Both of Hale's parents died before he was five, Joanna in 1612, and Robert in 1614. It was then revealed that Robert had been so generous in giving money to the poor that at his death his estate provided only £100 of income a year, of which £20 was to be paid to the local poor. Hale thus passed into the care of Anthony Kingscot, one of his father's relatives. A strong Puritan
Puritan
The Puritans were a significant grouping of English Protestants in the 16th and 17th centuries. Puritanism in this sense was founded by some Marian exiles from the clergy shortly after the accession of Elizabeth I of England in 1558, as an activist movement within the Church of England...
, Kingscot had Hale taught by a Mr. Stanton, the vicar of Wotton
Wotton, Gloucester
Wotton is a suburb of Gloucester, England. It is situated close to the city centre, the Royal Hospital, the city's railway station and to London Road....
known as the "scandalous vicar" due to his extremist puritan views. On 20 October 1626, at the age of 16, Hale matriculated
Matriculation
Matriculation, in the broadest sense, means to be registered or added to a list, from the Latin matricula – little list. In Scottish heraldry, for instance, a matriculation is a registration of armorial bearings...
at the University of Oxford
University of Oxford
The University of Oxford is a university located in Oxford, United Kingdom. It is the second-oldest surviving university in the world and the oldest in the English-speaking world. Although its exact date of foundation is unclear, there is evidence of teaching as far back as 1096...
as a member of Magdalen Hall, with the goal of becoming a priest. Both Kingscot and Stanton had intended this to be his career, and his education had been conducted with that in mind. He was taught by Obadiah Sedgwick
Obadiah Sedgwick
Obadiah Sedgwick was an English clergyman of presbyterian views, a member of the Westminster Assembly.-Life:He was son of Joseph Sedgwick, vicar of St. Peter's, Marlborough, Wiltshire, and then of Ogbourne St. Andrew, and was born at Marlborough about 1600. He matriculated at Queen's College,...
, another Puritan, and excelled in both his studies and fencing. Hale also regularly attended church, private prayer-meetings, and was described as "simple in his attire, and rather aesthetic". After a company of actors came to Oxford, Hale attended so many plays and other social activities that his studies began to suffer, and he began to turn away from Puritanism. In light of this, he abandoned his desire to become a priest and instead decided to become a soldier. His relatives were unable to persuade him to become a priest, or even a lawyer, with Hale describing lawyers as "a barbarous set of people unfit for anything but their own trade".
His plans to become a soldier died after a legal battle concerning his estate, in which he consulted John Glanville
John Glanville (judge)
Sir John Glanville, the elder was an English Member of Parliament and judge, the first judge recorded as having reached the bench after beginning his career as an attorney...
, a celebrated lawyer who later became the first attorney to be appointed as a judge. Glanville successfully persuaded Hale to become a lawyer, and after leaving Oxford at 20 before obtaining a degree, he joined Lincoln's Inn
Lincoln's Inn
The Honourable Society of Lincoln's Inn is one of four Inns of Court in London to which barristers of England and Wales belong and where they are called to the Bar. The other three are Middle Temple, Inner Temple and Gray's Inn. Although Lincoln's Inn is able to trace its official records beyond...
on 8 November 1628. Fearing that the theatre might dissuade him from his legal studies as it had at Oxford, he swore "never to see a stage-play again". At around this time he was drinking with a group of friends when one of them became so drunk he fainted; Hale prayed to God to forgive and save his friend, and forgive him for his previous excesses. His friend recovered, and Hale was restored to his Puritain faith, never drinking to someone's health again (not even drinking to the King) and going to church every Sunday for 36 years. He instead settled into his studies, working for up to 16 hours a day during his first two years at Lincoln's Inn before reducing it to eight hours due to health concerns. As well as reading the law reports and statutes, Hale also studied the Roman civil law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
and jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
. Outside of the law, Hale studied anatomy, history, philosophy and mathematics. He refused to read the news or attend social events, and occupied himself entirely with his studies and visits to church.
Barrister
William Noy
William Noy was a noted British jurist.He was born on the family estate of Pendrea in St Buryan, Cornwall. He left Exeter College, Oxford without taking a degree, and entered Lincoln's Inn in 1594. From 1603 until his death he was elected, with one exception, to each parliament, sitting...
. Hale and Noy became close friends, to the point where he was referred to as "the young Noy", and more crucially he also met and befriended John Selden
John Selden
John Selden was an English jurist and a scholar of England's ancient laws and constitution and scholar of Jewish law...
, a "man of almost universal learning, whose theories were to dominate much of [Hale's] later thought". Selden persuaded him to continue with his studies outside the law, and much of Hale's written work is concerned with theology and science as well as legal theory. Hale gained a good legal practise, although he allowed his Christian faith to govern his work. He sought to help the court reach a just verdict, whatever his client's concerns, and normally returned half his fee or charged a standard fee of 10 shillings rather than allow costs to inflate. He refused to accept unjust cases, and always tried to be on the "right" side of any case; John Campbell
John Campbell, 1st Baron Campbell
John Campbell, 1st Baron Campbell PC, KC was a British Liberal politician, lawyer, and man of letters.-Background and education:...
wrote that "If he saw that a cause was unjust, he for a great while would not meddle further in it but to give his advice that it was so; if the parties after that would go on, they were to seek another counsellor, for he would assist none in acts of injustice".
Despite this, he was wealthy enough to purchase land worth £4,200 in 1648. He was in great demand; law reporters began recording his cases and in 1641 he advised Thomas Wentworth
Thomas Wentworth, 1st Earl of Strafford
Thomas Wentworth, 1st Earl of Strafford was an English statesman and a major figure in the period leading up to the English Civil War. He served in Parliament and was a supporter of King Charles I. From 1632 to 1639 he instituted a harsh rule as Lord Deputy of Ireland...
, the first Earl of Strafford, over his attainder
Attainder
In English criminal law, attainder or attinctura is the metaphorical 'stain' or 'corruption of blood' which arises from being condemned for a serious capital crime . It entails losing not only one's property and hereditary titles, but typically also the right to pass them on to one's heirs...
for high treason. Although unsuccessful, Hale was then called to represent William Laud
William Laud
William Laud was Archbishop of Canterbury from 1633 to 1645. One of the High Church Caroline divines, he opposed radical forms of Puritanism...
, the Archbishop of Canterbury
Archbishop of Canterbury
The Archbishop of Canterbury is the senior bishop and principal leader of the Church of England, the symbolic head of the worldwide Anglican Communion, and the diocesan bishop of the Diocese of Canterbury. In his role as head of the Anglican Communion, the archbishop leads the third largest group...
, during his impeachment by the House of Commons in October 1644. Hale, along with John Herne, argued that none of Laud's alleged offences constituted treason, and that the Treason Act 1351
Treason Act 1351
The Treason Act 1351 is an Act of the Parliament of England which codified and curtailed the common law offence of treason. No new offences were created by the statute. It is one of the earliest English statutes still in force, although it has been very significantly amended. It was extended to...
had abolished all common law treasons. John Wilde
John Wilde (jurist)
John Wilde was an English lawyer and politician. As a serjeant-at-law he was referred to as Serjeant Wilde before he was appointed judge...
, arguing for the prosecution, admitted that none of Laud's actions amounted to treason, but argued that all of them together did. Herne, in his arguments written by Hale, retorted that "I crave your mercy, [Wilde]. I never understood before this time that two hundred couple of black rabbits would make a black horse!" Laud's case began to fail, and so Parliament simply issued an Act of Attainder
Bill of attainder
A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...
which declared them guilty and sentenced them to death. After the capture of Charles I
Charles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
, Hale was expected to defend him, and indeed offered to do so; the King refused to submit to the court, claiming he did not recognise its jurisdiction. Edward Foss
Edward Foss
Edward Foss was an English lawyer and biographer.He was born in London. He became a solicitor, and on his retirement from practice in 1840, devoted himself to the study of legal antiquities. His Judges of England was regarded as a standard work, characterized by accuracy and extensive research...
writes, based on the statement of Charles Runnington, that it was Hale who actually provided the King with this defence, and that it was only because the defence prevented any counsel being called for the King that Hale did not appear in court.
When it became clear that the King was losing the Civil War, and only Oxford held out, Hale decided to act as a commissioner to negotiate its surrender, fearing that the city might otherwise be destroyed. Thanks to his intercession, honourable terms were reached, and the libraries preserved. Despite practising in the politically charged environment of the English Civil War
English Civil War
The English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...
and primarily defending opponents of the resulting Commonwealth of England
Commonwealth of England
The Commonwealth of England was the republic which ruled first England, and then Ireland and Scotland from 1649 to 1660. Between 1653–1659 it was known as the Commonwealth of England, Scotland and Ireland...
, Hale's reputation did not suffer. First, he largely kept out of the war, even ignoring news of its progress, and instead translating The Life and Death of Pomponious Atticus into English. Second, he was acknowledged as universally able and of high integrity during his cases, retorting to those who complained of his defence of the Royalists that he was "pleading in defence of the laws which they professed they would maintain and preserve; and that he was doing his duty to his client and was not to be daunted by such threatenings".
Hale Commission
During the rule of both the Commonwealth and the ProtectorateThe Protectorate
In British history, the Protectorate was the period 1653–1659 during which the Commonwealth of England was governed by a Lord Protector.-Background:...
, there was considerable desire for law reform. Many judges and lawyers were corrupt, and the criminal law followed no real reason or philosophy. Any felony was punishable by death, proceedings were in a form of Norman French
Law French
Law French is an archaic language originally based on Old Norman and Anglo-Norman, but increasingly influenced by Parisian French and, later, English. It was used in the law courts of England, beginning with the Norman Conquest by William the Conqueror...
, and judges regularly imprisoned judges for reaching a verdict they disagreed with. Oliver Cromwell and the Rump Parliament
Rump Parliament
The Rump Parliament is the name of the English Parliament after Colonel Pride purged the Long Parliament on 6 December 1648 of those members hostile to the Grandees' intention to try King Charles I for high treason....
aimed to establish a "new society", which included reforming the law. To that end, on 30 January 1652 Hale was appointed chairman of a commission to investigate law reform, which soon became known as the Hale Commission. The Commission's official remit was defined by the Commons; "taking into consideration what inconveniences there are in the law; and how the mischiefs which grow from delays, the chargeableness and irregularities in the proceedings in the law may be prevented, and the speediest way to reform the same, and to present their opinions to such committee as the Parliament shall appoint". The Commission consisted of eight lawyers and 13 laymen, which sat from 23 January approximately three times a week.
The Commission recommended various changes, such as reducing the use of the death penalty, allowing defendants access to legal counsel, legal aid and the abolition of peine forte et dure as a torture mechanism. Dissolved on 23 July 1652 after producing 16 bills, none of the Commission's recommendations immediately made it into law, although two (to abolish fines for original writs
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
and to develop procedures for civil marriages) were brought into force through statutes by the Barebone's Parliament. Almost all of the recommendations eventually became part of English law, with John Hostettler, in his biography of Hale, writing that if the measures had been put into law immediately, "we would have been honouring such pioneers for their farsightedness in enhancing our legal system and the concept of justice".
Justice of the Common Pleas
Oliver CromwellOliver Cromwell
Oliver Cromwell was an English military and political leader who overthrew the English monarchy and temporarily turned England into a republican Commonwealth, and served as Lord Protector of England, Scotland, and Ireland....
, noting Hale's abilities, asked him to become a Justice of the Common Pleas
Justice of the Common Pleas
Justice of the Common Pleas was a puisne judicial position within the Court of Common Pleas of England and Wales, under the Chief Justice. The Common Pleas was the primary court of common law within England and Wales, dealing with "common" pleas...
. Although Hale considered that taking this commission would make others think he supported the Commonwealth, he was persuaded to do so, replacing John Puleston. Only Serjeants-at-Law could become judges, and as such Hale was made a Serjeant on 25 January 1653. He was formally appointed a Justice of the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
, one of the three principal Westminster courts, on 31 January 1653, on the condition that he "would not be required to acknowledge the usurper's authority". He also refused to put people to death for offences against the government; he believed that because the government authorising him to do so was an illegal one, "putting men to death on that account was murder". William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
later wrote that "if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder; and upon this argument Sir Matthew Hale himself, though he accepted the place of a judge of the Common Pleas under Cromwell's government, yet declined to sit on the crown side at the assizes, and try prisoners, having very strong objections to the legality of the usurper's commission". Hale also made decisions which negatively impacted on the Commonwealth, executing a soldier for murdering a civilian in 1655, and actively refusing to attend a court hearing outside term time. On another occasion, Cromwell personally selected a jury in a trial he was concerned with, something contrary to law; as a result, Hale dismissed the jury and refused to hear the case. On 15 May 1659, Hale chose to retire, and was replaced by John Archer
John Archer (judge)
John Archer was an English judge.Archer was the son of Henry Archer, Esq., of Coopersale, Theydon Garnon, Essex, by Anne, daughter of Simon Crouch, of London, alderman. He was educated at Queens' College, Cambridge, where he graduated B.A. in 1619, and M.A. in 1622. Having entered Gray's Inn as a...
.
Member of Parliament
First Protectorate Parliament
The First Protectorate Parliament was summoned by the Lord Protector Oliver Cromwell under the terms of the Instrument of Government. It sat for one term from 3 September 1654 until 22 January 1655 with William Lenthall as the Speaker of the House....
was called; of the 400 English members, only two were lawyers — Hooke, a Baron of the Exchequer, and Hale, who had been returned for his home county of Gloucestershire. Hale was an active Member of Parliament (MP), persuading the Commons to reject a motion to destroy the Tower of London
Tower of London
Her Majesty's Royal Palace and Fortress, more commonly known as the Tower of London, is a historic castle on the north bank of the River Thames in central London, England. It lies within the London Borough of Tower Hamlets, separated from the eastern edge of the City of London by the open space...
's archives, and introducing several motions to preserve the authority of Parliament. The first was that the government should be "in a Parliament and a single person limited and restrained as the Parliament should think fit", and he later proposed that the English Council of State
English Council of State
The English Council of State, later also known as the Protector's Privy Council, was first appointed by the Rump Parliament on 14 February 1649 after the execution of King Charles I....
be subject to re-election every three years by the House of Commons, that the militia should be controlled by Parliament, and that supplies should only be granted to the army for limited periods. While these proposals got support, Cromwell refused to allow any MPs into the Commons until they signed an oath recognising his authority, which Hale refused to do. As such, none of them were passed. Dissatisfied with the First Protectorate Parliament, Cromwell dissolved it on 22 January 1655.
A Second Protectorate Parliament
Second Protectorate Parliament
The Second Protectorate Parliament in England sat for two sessions from 17 September 1656 until 4 February 1658, with Thomas Widdrington as the Speaker of the House of Commons...
was called on 17 September 1656, which wrote a constitution titled Humble Petition and Advice that called for the creation of an Upper House
Cromwell's Other House
The Other House , established by the Lord Protector Oliver Cromwell under the terms of the Humble Petition and Advice, was one of the two chambers of the Parliaments that legislated for England and Wales, Scotland and Ireland, in 1658 and 1659, the final years of the Protectorate.During the Rule of...
to perform the job of the former House of Lords. Cromwell accepted this constitution, and in December 1657 nominated the Upper House's members. Hale, as a judge, was called to it. This new House's extensive jurisdiction and authority was immediately questioned by the Commons, and Cromwell responded by dissolving the Parliament on 4 February 1658. On 3 September 1658, Oliver Cromwell died and was replaced by his son, Richard Cromwell
Richard Cromwell
At the same time, the officers of the New Model Army became increasingly wary about the government's commitment to the military cause. The fact that Richard Cromwell lacked military credentials grated with men who had fought on the battlefields of the English Civil War to secure their nation's...
. Richard Cromwell summoned a new Parliament
Third Protectorate Parliament
The Third Protectorate Parliament sat for one session, from 27 January 1659 until 22 April 1659, with Chaloner Chute and Thomas Bampfylde as the Speakers of the House of Commons...
on 27 January 1659, and Hale was returned for the University of Oxford. Richard Cromwell was a weak leader, however, and ruled for only 8 months before resigning. On 16 March 1660 General Monck forced the Parliament to vote for its own dissolution and call new elections. At the same time, Charles II
Charles II of England
Charles II was monarch of the three kingdoms of England, Scotland, and Ireland.Charles II's father, King Charles I, was executed at Whitehall on 30 January 1649, at the climax of the English Civil War...
made the Declaration of Breda
Declaration of Breda
The Declaration of Breda was a proclamation by Charles II of England in which he promised a general pardon for crimes committed during the English Civil War and the Interregnum for all those who recognised Charles as the lawful king; the retention by the current owners of property purchased during...
, and when the Convention Parliament met on 25 April 1660 (with Hale a member from Gloucestershire again) it immediately began negotiations with the King. Hale moved in the Commons that "a committee might be appointed to look into the overtures that had been made, and the concessions that had been offered, by [Charles I]" and "from thence to digest such propositions, as they should think fit to be sent over to [Charles II]" who was still in Breda. On 1 May Parliament restored the King, and Charles II landed in Dover three weeks later, prompting the English Restoration
English Restoration
The Restoration of the English monarchy began in 1660 when the English, Scottish and Irish monarchies were all restored under Charles II after the Interregnum that followed the Wars of the Three Kingdoms...
.
Chief Baron and Chief Justice
Hanged, drawn and quartered
To be hanged, drawn and quartered was from 1351 a penalty in England for men convicted of high treason, although the ritual was first recorded during the reigns of King Henry III and his successor, Edward I...
. Sitting as a judge in this trial led to some viewing Hale as hypocritical, with F.A. Inderwick later writing "I confess to a feeling of pain at finding [Hale] in October 1660, sitting as a judge at the Old Bailey, trying and condemning to death batches of the regicides, men under whose orders he had himself acted, who had been his colleagues in Parliament, with whom he had sat on committees to alter the law". Perhaps as reward for this, he became Chief Baron of the Exchequer on 7 November 1660, replacing Sir Orlando Bridgeman. Hale had no wish to receive the knighthood that accompanied this appointment and so tried to avoid being near the King; in response, the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
Lord Clarendon
Edward Hyde, 1st Earl of Clarendon
Edward Hyde, 1st Earl of Clarendon was an English historian and statesman, and grandfather of two English monarchs, Mary II and Queen Anne.-Early life:...
invited him to his house, where the King was present. Hale was knighted on the spot.
There were many instances of parties to a case attempting to bribe Hale. When a Duke approached him before a case "to help the judge understand a case that was to come before him", Hale said that he would only hear about cases in court. In another case, he was sent venison by a party. After noticing the man's name and verifying that he had indeed sent Hale some venison, Hale refused to let the case proceed until he had paid the man for the food. When Sir John Croke, suspected in engaging in a conspiracy, sent him some sugar loaves to excuse his absence from a case, Hale remarked that "I cannot think that Sir John believes that the King's Justices come into the country to take bribes. Some other person, having a design to put a trick upon him, sent them in his name". Hale returned the loaves, and refused to continue until Croke appeared before him. Hale was noted during this period for giving latitude to those accused of religious impropriety, and through doing so "secured the confidence and affection of all classes of his countrymen". His knowledge of equity was considered as great as his knowledge of the law, and Lord Nottingham, considered the "father of equity", "worshipped Hale as a great master".
On 2 September 1666, the Great Fire of London
Great Fire of London
The Great Fire of London was a major conflagration that swept through the central parts of the English city of London, from Sunday, 2 September to Wednesday, 5 September 1666. The fire gutted the medieval City of London inside the old Roman City Wall...
broke out. Over 100,000 people were made homeless, and by the time the fire ended over 13,000 houses and 400 streets had been destroyed. An Act of Parliament enacted on 8 February 1667 constituted a Court of Fire, tasked with dealing with property disputes over ownership, liability and the rebuilding of the city. Hale was tasked with sitting in this court, which met in Clifford's Inn
Clifford's Inn
Clifford's Inn was an Inn of Chancery which is located between Fetter Lane and Clifford's Inn Passage, leading off Fleet Street, EC4.Founded in 1344 and dissolved in 1903, most of the original structure was demolished in 1934...
, and heard 140 of the 374 cases the court dealt with during its first year in operation.
On 18 May 1671, Hale was made Chief Justice of the King's Bench after the death of John Kelynge
John Kelynge
John Kelynge KS was an English judge and Chief Justice of the King’s Bench.-Early career:Kelynge was admitted into the Inner Temple on 22 January 1624. His father was of the same inn and is described as a resident of Hertford. He was called to the bar on 10 February, 1632, and from this time to...
. Edward Turnour replaced him as Chief Baron of the Exchequer. Hale was not noted as a particularly innovative judge, but took pains to ensure that his decisions were easy to understand and informative. Roger North wrote that "I have known the Court of King's Bench sitting every day from eight to 12, and the Lord Chief Justice Hale's 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 counsel, so that the court might have been taken for an academy of sciences as well as the seat of justice". He was noted for allowing counsel to fix any problems with pleadings, and for letting them correct him if he made an error in his summing up. He disliked eloquence, writing that "If the judge or jury has a right understanding it signifies nothing but a waste of time and loss of words, and if they are weak, and easily wrought upon, it is a more decent way of corrupting them by bribing their fancies and biassing their affections." As a judge, however, he was noted by Lord Nottingham as the greatest orator on the bench.
Retirement and death
By 1675, Hale had begun to suffer from ill-health; his arms became swollen, and although a course of bloodletting relieved the pain temporarily, by the next February his legs were so stiff he could not walk. His initial attempts to resign as Chief Justice were declined by the King, but when Hale applied for a writ of ease the King reluctantly allowed him to retire on 20 February 1676, granting him a pension of £1,000 a year. He was replaced as Chief Justice by Richard RaynsfordRichard Raynsford
Richard Raynsford SL was an English judge and Chief Justice of the King's Bench.-Career:The second son of Robert Raynsford of Staverton, Northamptonshire, by his first wife, Mary, daughter of Thomas Kirton of Thorpe Mandeville in the same county, he was born in 1605. He matriculated at Exeter...
. After suffering for ten more months, Hale died on 25 December 1676 at his country home, Alderley House
Alderley House
The present day Alderley House is a mid-19th century Grade II listed country house designed by Lewis Vulliamy and built for Robert Blagden Hale in the small Cotswold village of Alderley, near Wotton-under-Edge in Gloucestershire...
. He was buried in the churchyard at Alderley next to his first wife's tomb, with a monument erected that reads: His estate was largely left for his widow, with his legal texts given to his grandson Gabriel if Gabriel chose to study the law, and his more valuable manuscripts and books given to Lincoln's Inn
Lincoln's Inn
The Honourable Society of Lincoln's Inn is one of four Inns of Court in London to which barristers of England and Wales belong and where they are called to the Bar. The other three are Middle Temple, Inner Temple and Gray's Inn. Although Lincoln's Inn is able to trace its official records beyond...
. The male line of his family died out in 1784 with the death of Matthew Hale, his great grandson; also a barrister.
Personal life
In 1642 Hale married Anne Moore, the daughter of Sir Henry Moore, a Royalist soldier, and the granddaughter of Sir Francis MooreFrancis Moore (barrister)
Sir Francis Moore was a prominent Jacobean barrister and MP.He was born the posthumous son of Edward Moore, a yeoman of East Ilsley in Berkshire and educated at Reading Grammar School and St John's College, Oxford....
, a Serjeant-at-Law under James I
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
. Moore and Hale had 10 children, but she was evidently a highly extravagant woman, with Hale warning his children that "an idle or expensive wife is most times an ill bargain, though she bring a great portion". Moore died in 1658, and in 1667 Hale married Anne Bishop, his housekeeper. Descriptions of Bishop differ; Roger North
Roger North (17th century)
Roger North, KC , English lawyer, biographer, and amateur musician, was the sixth son of t he fourth Baron North....
wrote that "[Hale] was unfortunate in his family; for he married his own servant made, and then, for an excuse, said there was no wisdom below the girdle". Richard Baxter
Richard Baxter
Richard Baxter was an English Puritan church leader, poet, hymn-writer, theologian, and controversialist. Dean Stanley called him "the chief of English Protestant Schoolmen". After some false starts, he made his reputation by his ministry at Kidderminster, and at around the same time began a long...
, on the other hand, described Anne as "one of [Hale's] own judgment and temper, prudent and loving, and fit to please him; and that would not draw on him the trouble of much acquaintance and relations". Hale himself described her as a "most dutiful, faithful, and loving wife" who was appointed an executrix on his death.
Legacy
Hale is universally considered an excellent judge and jurist, particularly due to his writings. Edward Foss wrote that he was an "eminent judge, whom all look up to as one of the brightest luminaries of the law, as well for the soundness of his learning as for the excellence of his life". Similarly, John CampbellJohn Campbell, 1st Baron Campbell
John Campbell, 1st Baron Campbell PC, KC was a British Liberal politician, lawyer, and man of letters.-Background and education:...
in his Lives of the Chief Justices of England, wrote that Hale was "one of the most pure, the most pious, the most independent, and the most learned" of judges. Henry Flanders, writing in the University of Pennsylvania Law Review
University of Pennsylvania Law Review
The University of Pennsylvania Law Review is a law review focusing on legal issues, published by an organization of second and third year J.D. students at the University of Pennsylvania Law School. It is the oldest law journal in the United States, having been published continuously since 1852...
, describes Hale during his lifetime as "the most learned, the most able, the most honorable man to be found in the profession of the law". Hale's writings have been cited as recently as 1993, in the case of R v Kingston, where the Court of Appeal relied on his statement that "drunkenness is not a defence" to uphold a conviction. William Holdsworth argues that it was his learning in Roman law and jurisprudence which allowed him to work so effectively; because he had seen other legal systems at work, he "could both criticise the defects of English law and state its rules in a more orderly form than they had ever been stated before". Hale's political neutrality and personal integrity has been attributed to his Puritainism, and his support of the common law; "Regimes come and go, the common law abides...For Hale...legal continuity was vital for civic identity".
Much comparison has been made of Hale with Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
. Campbell considered Hale to be the superior lawyer, because while he failed to engage in public life he treated law as a science, and maintained judicial independence and neutrality. Hostettler, while considering Hale a better lawyer than Coke and more influential, says that Coke was better overall. While Hale was in possession of judicial impartiality, and his written works are considered highly important, his lack of venture into public affairs limited his progressive influence. Coke's active intervention allowed him to "breath new life into medieval law and use it to oppose conciliar justice", encouraging judges to be more independent and "unfettered except by the common law whose supremacy it was their duty to uphold". J.H. Corbett, writing in the Alberta Law Quarterly, notes that with Hale's popularity at the time (Parliamentary constituencies "fought over the privilege of returning him") he could have been just as successful as Coke if he had chosen to take an active role in public affairs.
Writings
Historia Placitorum Coronæ
Historia Placitorum Coronæ or The History of the Pleas of the Crown is an influential treatise on the criminal law of England, written by Sir Matthew Hale and published posthumously by Sollom Emlyn in 1736...
, or The History of the Pleas of the Crown, published in 1736.
The Analysis was based on lectures he gave to students, and was most likely not intended to be published; it is considered the first history of English law ever written. Divided into 13 chapters, the book dealt with the history of English law and some suggestions for reform. William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
, when writing his Commentaries on the Laws of England
Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...
, noted in his preface that "of all the earlier schemes for digesting the Laws of England the most natural and scientific, as well as the most comprehensive, appeared to be that of Sir Matthew Hale in his posthumous Analysis of the Law". Hale proposed the creation of county courts, and also drew a strong distinction between written laws, such as statutes, and customary, unwritten laws. He also argued that the common law was subject to Parliament, far before the confirmation of Parliamentary supremacy, and that the law should protect the rights and civil liberties of the King's subjects. He also argued for the confirmation of trial by jury, which he described as "the best mode of trial in the world", while the 13th chapter divided the law into the laws of persons and of property, and dealt with the rights, wrongs and remedies recognised by the law at the time. William Holdsworth, himself considered one of the greatest common law historians, described it as "the ablest introductory sketch of a history of English law that appeared till the publication of Pollock and Maitland's volumes in 1895".
The Historia is perhaps Hale's most famous work. Pleas of the Crown were capital offences committed "against the peace of our Lord the King, his Crown and dignity"; as such, the book dealt with capital crimes and the associated procedure. The 710-page work followed the pattern of Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
's Institutes of the Lawes of England
Institutes of the Lawes of England
The Institutes of the Lawes of England are a series of legal treatises written by Sir Edward Coke. They were first published, in stages, between 1628 and 1644. They are widely recognized as a foundational document of the common law. They have been cited in over 70 cases decided by the Supreme Court...
, but was far more methodical; James Fitzjames Stephen
James Fitzjames Stephen
Sir James Fitzjames Stephen, 1st Baronet was an English lawyer, judge and writer. He was created 1st Baronet Stephen by Queen Victoria.-Early life:...
said that Hale's work "was not only of the highest authority but shows a depth of thought which puts it in quite a different category from Coke's Institute... [it] is far more of a treatise and far less of an index or mere work of practice". The book dealt with the criminal capacity of infants, insanity and idiocy
Insanity in English law
Insanity in English law is a defence to criminal charges based on the idea that the defendant was unable to understand what he was doing, or, that he was unable to understand that what he was doing was wrong....
, the defence of drunkenness, capital offences, treason, homicide and theft. In the 19th century, Andrew Amos
Andrew Amos (lawyer)
Andrew Amos was a lawyer and professor of law. He was born in 1791 in India, where his father, James Amos, a Russian merchant, of Devonshire Square, London, who had travelled there, had married Cornelia Bonté, daughter of a Swiss general officer in the Dutch service. The family was Scottish, and...
wrote a critique of the Historia titled Ruins of Time exemplified in Sir Matthew Hale's History of the Pleas of the Crown, which both criticised and praised Hale's work while directing the main criticism at the judges and lawyers who cited the Historia without considering that it was dated.
Hale also reorganised the first of Coke's Institutes, which dealt with Thomas de Littleton
Thomas de Littleton
Sir Thomas de Littleton was an English judge and legal writer.-Early life:He was born, it is supposed, at Frankley Manor House, Worcestershire, England in about 1407. Littleton’s surname was that of his mother, who was the sole daughter and heiress of Thomas de Littleton, Lord of Frankley. She...
's Treatise on Tenures; Hale's edition was the most commonly used, and the first to extract Coke's broader philosophical points. His written works, however, were fragmentary, and did not individually lay out his jurisprudence. Harold J. Berman
Harold J. Berman
Harold J. Berman was an American legal scholar who was an expert in comparative, international and Soviet/Russian law as well as legal history, philosophy of law and the intersection of law and religion...
, writing in the Yale Law Journal
Yale Law Journal
The Yale Law Journal is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students at Yale Law School...
, notes that it is only "possible by a study of the entire corpus of Hale's writings to reconstruct the coherent legal philosophy that underlies them".
Hale's writings on witchcraft and marital rape were extremely influential. In 1662, he was involved in "one of the most notorious of the seventeenth century English witchcraft trials
Bury St. Edmunds witch trials
The Bury St Edmunds witch trials were a series of trials conducted intermittently between the years 1599 and 1694 in the town of Bury St Edmunds in Suffolk, England....
", where he sentenced two women (Amy Duny and Rose Callender) to death for witchcraft, sorcery and "unnatural love". The judgment of Hale in this case was extremely influential in future cases, and was used in the Salem witch trials
Salem witch trials
The Salem witch trials were a series of hearings before county court trials to prosecute people accused of witchcraft in the counties of Essex, Suffolk, and Middlesex in colonial Massachusetts, between February 1692 and May 1693...
to justify the forfeiture of the accused's lands. G. Geis, writing in the British Journal of Law and Society, ties Hale's opinions on witchcraft in with his writings on marital rape, which are found in the Historia. Hale believed that a marriage was a contract, which merged the legal entities of husband and wife into one body. As such, "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract". This exception to the law of rape existed in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
until 1991, primarily due to his influence, until it was repealed by the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
in R v R.
Jurisprudence
During Hale's period as a barrister and judge, the general conclusion in England was that the repository of the law and conventional wisdom was not politics, as in Renaissance Europe, but the common law. This had been brought about thanks to Sir Edward Coke, who in his Institutes and practice as a judge advocated judge-made law. Coke asserted that judge-made law had the answer to any question asked of it, and as a result, "a learned judge... was the natural arbiter of politics". This principle was known as the "appeal to reason", with "reason" referring not to rationality but the method and logic used by judges in upholding and striking down laws. Coke's theory meant that certainty of the law and "intellectual beauty" was the way to see if a law was just and correct, and that the system of law could eventually become sophisticated enough to be predictable. John Selden held similar beliefs, in that he thought that the common law was the proper law of England. However, he argued that this did not necessarily create judicial discretion to play with it, and that proper did not necessarily equal perfect. The law was nothing more than a contract made by the English people; this is known as the "appeal to contract". Thomas HobbesThomas Hobbes
Thomas Hobbes of Malmesbury , in some older texts Thomas Hobbs of Malmsbury, was an English philosopher, best known today for his work on political philosophy...
argued against Coke's theory. Along with Francis Bacon
Francis Bacon
Francis Bacon, 1st Viscount St Albans, KC was an English philosopher, statesman, scientist, lawyer, jurist, author and pioneer of the scientific method. He served both as Attorney General and Lord Chancellor of England...
, he argued for natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
, created by the King's authority, not by any individual judge. Hobbes felt that there was no skill unique to lawyers, and that the law could be understood not through Coke's "reason" (the method used by lawyers) but through understanding the King's instructions. While the judges did make law, this was only valid because it was "tacitly confirmed (because not disapproved) by the [King]".
Hale's legal theory was highly influenced by both Coke and Selden. He argued that the making of the law was a contract, but that it was subject to a test of "reasonable" character, something that only the judges could rule on. In this way, he sat in a middle ground between Selden and Coke. This was in conflict with the argument of Hobbes. In 1835, Hale's "Reflections on Hobbes' Dialogue" was discovered; Frederick Pollock posits that since Hobbes' Dialogue was first published in 1681, six years after Hale's death, Hale must have seen an early copy or draft. D.E.C. Yale, writing in the Cambridge Law Journal
Cambridge Law Journal
The Cambridge Law Journal is a peer-reviewed academic law journal published by Cambridge University Press. It is the principal academic publication of the Faculty of Law of the University of Cambridge. Founded in 1921 it is the longest running university law journal in the United Kingdom . Its...
, suggests that Chief Justice Vaughan had access to the Dialogue, and may have passed a copy on to Hale before his death. In his Reflections, Hale agreed with Coke that the judge's task was to bring the reason of the common law (the coherence of the legal system) in line with the reason of the law in question (to justify that law). He disagreed with Hobbes that a layman could understand the law, saying that "he that hath been educated in the study of the law hath a great advantage over those that have been otherwise exercised". The distinction between Coke and Hale is that Hale agreed with Selden that law was created through agreement, and disagreed that reason had an inherent binding power. Hale agreed with Hobbes that the interpretation of the law could not be left to individual reason, and that the law is not an exact science; the best that can be produced is a set of laws which give a reasonable outcome in the majority of cases.
List of works
Hale's full works include:- Contemplations, Moral and Divine (1676);
- The Primitive Origination of Mankind, Considered and Examined According to the Light of Nature (1677);
- The Life and Death of Pomponius Atticus written by his contemporary and acquaintance Cornelius Nepos; Translated out of his fragments, together with observations political and moral thereon (1677);
- Pleas of the Crown; A Methodical Summary (1678);
- A Discourse of the Knowledge of God and of Ourselves (1688);
- On Pomponious Atticus (1689);
- Origin of Mankind by Natural Propagation;
- The Original Institution, Power and Jurisdiction of Parliament (1707);
- Government in General, its Origin, Alteration and Trials;
- The History of the Pleas of the Crown (1736);
- The History of the Common Law of England (1739);
- The Analysis of the Law; Being a Scheme, or Abstract, of the several Titles and Partitions of the Law of England, Digested into Method (1739);
- Considerations Touching the Amendment or Alterations of Laws (1787);
- The Jurisdiction of the Lord's House, or, Parliament Considered According to Ancient Records (1796);
- Reflections on Hobbes' Dialogue of the Law (1835).