page_title: Matthew Hale (jurist)
section_title: Writings
hierarchical_section_title: Matthew Hale (jurist) / Legacy / Writings
caption_attribution_description: James Fitzjames Stephen
context_page_description: Sir Matthew Hale SL 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, 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.
context_section_description: 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
caption: James Fitzjames Stephen, who praised Hale's Historia Placitorum Coronæ
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