Sir Matthew Hale (1 November 1609 – 25 December 1676) was an influential English lawyer, most noted for his treatise Historia Placitorum Coronæ, or The History of the Pleas of the Crown. He occupied various public offices both under the Cromwellian Commonwealth and the Stuart Restoration. From 1671 until his retirement in 1676, he served as Chief Justice of the King's Bench. Hale is widely regarded as one of the key figures in the development of the common law.
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. He was later persuaded to become a barrister, like his father, by 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 several Royalist figures in the prelude to the English Civil War and during the war itself. These included the Earl of Strafford and Archbishop Laud. It has been hypothesised that Hale was intended to represent Charles I at his trial and that he conceived the defence used by the king.
Despite the defeat of the Royalists, Hale's reputation for integrity and his political neutrality protected him under the Commonwealth. He became Chairman of the Hale Commission that investigated law reform. Following the Commission's dissolution, Oliver Cromwell appointed him Justice of the Common Pleas. Hale sat in Parliament, either in the Commons or in the Upper House, in every Parliament from the First Protectorate Parliament (1654–1655) to the Convention Parliament (1660). After the Declaration of Breda, Hale was the Member of Parliament who moved to consider restoring the crown to Charles II. 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's published works were particularly influential in the development of English common law. 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 major 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. Hale influentially wrote that a man could not be charged with marital rape,, a principle famously overturned in the case of R v R. Modern commentators have criticized Hale for presiding over the 1662 Bury St Edmunds witch trial, which led to the execution of two women, and for his argument that capital punishment could extend to those as young as fourteen. In addition to his legal writings, Hale also published several works on Aristotelian physics.
Contents
Life
Early life and education
Hale was born on 1 November 1609 in West End House (now known as The Grange or Alderley Grange) in Alderley, Gloucestershire to Robert Hale, a barrister of Lincoln's Inn, and Joanna Poyntz. His father gave up his practice 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.
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".
Civil War, Commonwealth and Protectorate
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 practice, 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 (equivalent to £623,267 in 2025). 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 Lords 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!" The case against Laud began to fail, but Parliament issued an Act of Attainder which declared him guilty, and sentenced him to death.
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 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.
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.
Personal life
In 1642 Hale married Anne Moore, the daughter of Sir Henry Moore, a Royalist soldier, and the granddaughter of Sir Francis Moore, 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.
Legacy
Hale's views on rape, marriage and abortion have had a long legacy not only in Britain's legal system, but also in those of the British Colonies.
According to Edward Foss in 1870 Hale was widely considered an excellent judge and jurist, particularly through his writings: 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 Campbell 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.
In 1908 Henry Flanders, described Hale in the University of Pennsylvania Law Review, 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 by the US Supreme Court on numerous occasions. Justice Harry Blackmun cited Hale in "Roe v. Wade". Justices Elena Kagan and Stephen Breyer in "Kahler v. Kansas". In 2022, Hale's opinion on abortion was cited by Samuel Alito in his opinion of Dobbs v. Jackson Women's Health Organization, generating political controversy.
In 1993, in the case of R v Kingston, the Court of Appeal relied on his statement that "drunkenness is not a defence" to uphold a conviction. William Holdsworth argued in 1923 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 by Berman in 1994 to his Puritanism, and his support of the common law; "Regimes come and go, the common law abides...For Hale...legal continuity was vital for civic identity".
Hale has frequently been compared 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. In 2002, Hostettler said, while considering Hale a better lawyer than Coke and more influential, 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".
Writings
Hale's posthumous legacy is his written work. He wrote a variety of texts, treatises and manuscripts, the most major of which are The History and Analysis of the Common Law of England (published 1713), and the Historia Placitorum Coronæ, or The History of the Pleas of the Crown (published 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. Hale endorses the application of capital punishments to children in Historia, writing that "it is clear that an infant above fourteen years is equally subject to capital punishments as others of full age; for it is presumptio juris, that after fourteen years they are doli capaces, and can discern between good and evil".
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 Hobbes 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.
Natural philosophy
Hale published several works of "natural philosophy" (what would today be known as physics). These include An essay touching gravitation (1673), which dealt with the phenomena of weight and buoyancy within an Aristotelian framework, and Difficiles nugæ (1675), which was concerned with the interpretation of Torricelli's experiment. Hale's Observations touching the principles of natural motions was published posthumously in 1677. The Victorian mathematician Augustus De Morgan referred to this last as "a very philosophical book, about flux and materia prima, virtus activa and essentialis, and other fundamentals." Hale's approach to natural philosophy was rendered obsolete by the subsequent triumph of Isaac Newton's mathematical and experimental methods.
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).
The History of the Common Law of England (1713).
Government in General, its Origin, Alteration and Trials.
The History of the Pleas of the Crown (1736).
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).