Matthew Hale (jurist)

For other people named Matthew Hale, see Matthew Hale (disambiguation).

Sir Matthew Hale

Sir Matthew Hale SL (1 November 1609 – 25 December 1676) was a Lord Chief Justice of England.

Early life and education

Matthew Hale was born at Alderley, Gloucestershire, where his father, Robert Hale, a retired barrister, had a small estate.

His paternal grandfather, also Robert was a rich clothier of Wotton-under-Edge; on his mother's side he was connected with the noble family of the Poyntzes of Acton. Left an orphan when five years old, he was placed by his guardian under the care of the Puritan vicar of Wotton-under-Edge, with whom he remained until he turned 16, when he entered Magdalen Hall, Oxford.

At Oxford, Hale studied for several terms with a view to holy orders, but suddenly there came a change. The diligent student, at first attracted by a company of actors, threw aside his studies. He then decided to serve as a soldier under the prince of Orange in the Low Countries. Before going abroad, however, Hale went to London to give instructions for his defence in a legal action which threatened his patrimony. His leading counsel was Serjeant Glanville (1586–1661), who persuaded him instead into legal career, and on 8 November 1629 Hale became a member of Lincoln's Inn.

He studied hard; the rules which he laid down for himself, and which are still extant in his handwriting, prescribe sixteen hours a day of close application. He read over and over again all the yearbooks, reports, and law treatises in print, and at the Tower of London and other antiquarian repositories examined old records. But Hale did not confine himself to law, and spent some of time on mathematics and science.

Law career

Hale was called to the bar in 1637, and almost at once found himself in full practice. Though neither a fluent speaker nor bold pleader, in a very few years he was at the head of his profession. He entered public life at perhaps the most critical period of English history. Two parties, the Royalists and the Parliamentarians, were contending in the state, and their obstinacy could not fail to produce a most direful collision. But amidst the confusion Hale steered a middle course, rising in reputation, and an object of solicitation from both parties. Taking Pomponius Atticus as his political model, he was persuaded that a man, a lawyer and a judge could best serve his country and benefit his countrymen by holding aloof from partisanship and its violent prejudices, which are so apt to distort and confuse the judgment. But he is best vindicated from the charges of selfishness and cowardice by the thoughts and meditations ‘contained in his private diaries and papers, where the purity and honour of his motives are clearly seen.

It has been said, but without certainty, that Hale was engaged as counsel for the earl of Strafford; he was counsel for Sir John Bramston on his impeachment in 1641, and he certainly acted for Archbishop Laud, Lord Maguire, the duke of Hamilton and others. He was one of the counsel assigned for the eleven members accused by Thomas Fairfax of malpractices against the parliament and the army in the summer of 1646. Gilbert Burnet says that he was ready to plead on the side of Charles I, but king did not submit to the court. The parliament having gained the ascendancy, Hale signed the Solemn League and Covenant, and was a member of the Westminster Assembly in 1644; but although he would undoubtedly have preferred a Presbyterian form of church government, he had no serious objection to the system of modified Episcopacy, proposed by James Ussher. Consistently with his desire to remain neutral, Hale took the engagement to the Commonwealth, required by the ordinance of 11 October 1649 to be subscribed by all lawyers, and so was able in 1651 to defend Christopher Love. On 20 January 1652 he was placed on the committee for law reform. In 1654, already serjeant-at-law, he became a judge in the court of common pleas.

Hale stood for Gloucestershire at the general election of 1654, and was returned at the head of the poll. Parliament met in September; Oliver Cromwell silenced opposition by requiring members to subscribe a 'recognition to be true and faithful to the Lord Protector and Commonwealth of England.' The majority complied, and all dissentients, of whom Hale was probably one, were excluded by a subsequent vote. According to Burnet, Hale was required by the council of state to assist at the trial of Penruddock (April 1655), but refused. This, however, is unlikely, as Penruddock's trial took place at Exeter, and Hale belonged to the midland circuit. On 1 November 1655 he was placed by the council of state on the committee of trade.

After the death of the protector, he declined to act as a judge under Richard Cromwell, although he represented Oxford University in Richard's parliament. At the Restoration in 1660 Hale was very graciously received by Charles II, and in the same year was appointed Lord Chief Baron of the Exchequer, and accepted, with extreme reluctance, the honour of knighthood. After holding the office of chief baron for eleven years he was raised to the higher dignity of lord chief justice, which he held till February 1676, when his failing health compelled him to resign. He retired to his native Alderley, where he died on the 25th of December of the same year. He was twice married and survived all his ten children save two.

Judge

Hale in his judicial robes, as painted by John Michael Wright.

As a judge Sir Matthew Hale discharged his duties with resolute independence and careful diligence. His sincere piety made him the intimate friend of Isaac Barrow, Archbishop Tillotson, Bishop Wilkins and Bishop Stillingfleet, as well as of the Nonconformist leader, Richard Baxter.

He is chargeable, however, with the condemnation and execution of two women from Lowestoft tried before him for witchcraft in 1662, after the jury found them guilty on thirteen charges of using malevolent witchcraft. These deaths are described by the article on him in the Encyclopædia Britannica Eleventh Edition as judicial murder (more precisely the author says that all executions for withcraft were "a kind of judicial murder"). See the article on this trial.

He is also reproached with having hastened the execution of a soldier for whom he had reason to believe a pardon was pending.

Until recently, spousal rape was not recognized as a crime in most common law jurisdictions partly as a result of Sir Matthew Hale's opinion that "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband which she cannot retract." Hale is also known for saying "rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho' never so innocent". The statement, known as the 'Hale warning', was often read in charges to the juries in rape cases throughout the common law world up until the 1980s. This statement epitomized the suspicion with which the testimony of rape complainants has been received, from Hale's time up to the late twentieth century.

Works

Hale is the author of:

• Contemplations Moral and Divine, 1676
• The History of the Common Law of England (first published as The History and Analysis of the Common Law of England), 1713
• Historia Placitorum Coronae: The History of the Pleas of the Crown, 1736

Works About Hale:

• The Life of Sir Matthew Hale, Knt., Sometime Lord Chief Justice of His Majesty's Court of King's-Bench by Gilbert Burnet (C. & J. Rivington, 1823)

References

• This article incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). Encyclopædia Britannica (11th ed.). Cambridge University Press. {{cite encyclopedia}}: Missing or empty |title= (help)

External links

• Template:Worldcat id
• Historia Placitorum Coronae (History of Pleas of the Crown) from Google Books; volume 1 [1] and volume 2 [2] of the 1800 edition; and volume 1 [3] and volume 2 [4] of the first American edition (1847).
• http://www.halefamily.net/sirmat.html Sir Matthew Hale - A Great Englishman