8

Matthew Hale as Theologian and Natural Law Theorist

David S. Sytsma

INTRODUCTION

Sir Matthew Hale (1609–76) is one of the most celebrated jurists of English
common law. When reading modern literature on Hale, one frequently
encounters the superlatives of praise. One historian refers to Hale as ‘one of
the greatest jurists of the modern common law’,1 while another observes, ‘Hale
has continuously enjoyed the reverence of lawyers as the greatest Stuart jurist
after Coke, and treatments of his place in legal history have virtually always
been tinged with piety.’2 The greater part of this well-deserved reputation rests
upon the impact of his posthumous publications. Among these, Hale’s
Historia placitorum coronae (1736) became an authority for criminal law,
while his History of the Common Law of England (1713) was, in the words of
William Searle Holdsworth, ‘the ablest introductory sketch of a history of
English law that appeared till the publication of Pollock and Maitland’s
volumes in 1895’.3 Likewise, Hale’s Analysis of the Law (1713) served as an
important model for Sir William Blackstone, who drew upon Hale for his own
Analysis of the Laws of England (1756).4
Although Hale has long been justly revered for his contributions to common
law, he was also a great polymath. Indeed, his interests ranged across a wide
spectrum of theological and philosophical topics. Traditional biographies long
1
Thomas Garden Barnes, Shaping the Common Law: From Glanvill to Hale, 1188–1688, ed.
Allen D. Boyer (Stanford: Stanford University Press, 2008), 222. For a discussion of Blackstone
as a great Christian jurist, see Chapter 10 in this volume.
2
Alan Cromartie, ‘Hale, Sir Matthew’, in Oxford Dictionary of National Biography, 60 vols.
(Oxford: Oxford University Press, 2004), 24:539.
3
William Searle Holdsworth, A History of English Law, 17 vols. (London: Methuen, 1922–72),
6:586.
4
William Blackstone, An Analysis of the Laws of England (Oxford: Clarendon Press, 1756), vii.
See also David Lieberman, The Province of Legislation Determined: Legal Theory in
Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989), 35.

163

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 164 David S. Sytsma

neglected Hale’s theological manuscripts,5 but after Alan Cromartie brought

them to our attention, the formative importance of Hale’s religious views on his
life and thought is now apparent.6 Furthermore, a case can easily be made that
Hale’s theological writings rival professional clergy of his day in terms of
mastery of scholastic theology, so that he deserves to be ranked along with
Sir Henry Finch (d. 1625) as among the great English lawyer-theologians of the
seventeenth century.7 At the end of Hale’s life, his close friend, the famous
Puritan Richard Baxter, expressed to Hale his own hope that ‘many that highly
valued your secular wisdome will be induced to thinke the better of spirituall
wisdome when they see what it is that you have highlyest valued’.8 In the spirit
of Baxter’s wish, the present chapter will introduce readers to the importance of
Hale’s Christian faith for his life in general, as well as his legal thought. In what
follows, we will first highlight the importance of Hale’s Christian faith in his
life before turning to a survey of his theological writings. We will then
demonstrate the importance of Hale’s theology for his vocation as judge.
We will conclude with an examination of his theory of natural law, which
was foundational to his legal thought. Hale’s natural law theory, which forms
a crucial bridge linking his theological beliefs to his legal thought, merits far
more attention than the sparse treatments it has received to date.9

HALE’S LIFE AND RELIGIOUS DEVELOPMENT

Hale was born in Alderley, Gloucester, on 1 November 1609 into a family of

strong religious conviction.10 His father, Robert, matriculated at Broadgates
Hall, Oxford, in 1580 and was later called to the bar at Lincoln’s Inn in 1594.

5
E.g. Edmund Heward, Matthew Hale (London: Robert Hale, 1972), 173. This otherwise good
biography of Hale’s legal career suffers from complete neglect of Hale’s Lambeth manuscripts,
discussed later in this chapter.
6
See Alan Cromartie, Sir Matthew Hale, 1609–1676: Law, Religion and Natural Philosophy
(Cambridge: Cambridge University Press, 1995), which remains the best overall introduction
to Hale’s thought.
7
Finch’s major theological works include The Sacred Doctrine of Divinitie (1589, 1613),
The Summe of Sacred Divinitie (c. 1620) and An Exposition of the Song of Solomon (1615).
The Summe, previously attributed to John Downame (d. 1652), is now recognised as the work of
Finch. See Randall J. Pederson, Unity in Diversity: English Puritans and the Puritan
Reformation, 1603–1689 (Leiden: Brill, 2014), 123–7.
8
Baxter to Hale, 2 May 1676, in ‘An Unpublished Letter of the Reverend Richard Baxter to the
Chief Justice Sir Matthew Hale’, Bulletin of the John Rylands Library 24 (1940): 173.
9
See David S. Sytsma, ‘General Introduction’, in Matthew Hale, Of the Law of Nature, ed.
David S. Sytsma (Grand Rapids, MI: CLP Academic, 2015), ix–lv.
10
The facts of Hale’s biography are generally taken from Gilbert Burnet, The Life and Death of
Sir Matthew Hale, Kt. sometime Lord Chief Justice of His Majesties Court of Kings Bench
(London: William Shrowsbery, 1681); Heward, Hale; Cromartie, Hale, 1–7.

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 Matthew Hale as Theologian and Natural Law Theorist 165

Robert later married Matthew’s mother, Joan Poyntz of Alderley, in 1599.

According to Hale, his father was a serious student of theology and the
Scriptures.11 Sadly, Hale’s parents died while he was still a small child. Joan
died when Hale was just two and one-half years old (13 April 1612), and Robert
died in 1614 before Hale turned five. Hale’s guardianship fell to the nearest kin
on his father’s side, Anthony Kingscot (d. 1654), who oversaw Hale’s education.
A man of strong Puritan convictions, Kingscot wished Hale to pursue a career
in divinity, and accordingly sent him at the age of sixteen (1626) to Magdalen
Hall, Oxford, where his tutor was Obadiah Sedgwick (d. 1658), later to become
a well-known Puritan divine. By this time, Magdalen Hall had become
a ‘stronghold of the Puritans in Oxford’,12 and during his time there, Hale
became familiar not only with Puritan divinity but also – as was typical of
Oxford education at the time – with the works of Thomas Aquinas, John Duns
Scotus and Francisco Suárez, along with other unnamed scholastics.13
A series of unplanned circumstances led to Hale’s entrance into the legal
profession. During his Oxford years, Hale became attracted to the military and
thought of becoming a soldier rather than a pastor. Neither path of divinity nor
military materialised, however, for Hale had to leave Oxford for London to
deal with a lawsuit claiming part of his estate. While in London he consulted
a barrister, John Glanville (1586–1661), who, recognising Hale’s potential as
a lawyer, persuaded Hale to forsake his plan to be a soldier and instead study
law. On 8 November 1628, at the age of nineteen, Hale entered Lincoln’s Inn
as a student. He was called to the bar on 17 May 1636.
If his biographer Burnet is to be believed, soon after beginning his studies at
Lincoln’s Inn, Hale had a conversion experience which appears to have
reinvigorated the strict Puritanism of his earlier youth. Up until this time,
Hale had been increasingly taken with fine clothes, wine and company. But
one day while out on the town, a friend got so drunk that he fell over as if dead.
According to Burnet, Hale was so overcome by this event that he went to
another room and prayed to God for his friend’s life and also for forgiveness for
himself. He vowed to God not to drink or keep bad company again, and from
this point onwards took his religious duties and studies seriously.14 Although
this second-hand (seventeenth-century) account remains the only mention of
an evangelical-style conversion experience, Hale did recount that from the age
11
Cromartie, Hale, 2, citing Hale’s biographical note on his father (Lambeth MS 3516, f. 2).
12
Sidney Graves Hamilton, Hertford College (London: F. E. Robinson & Co., 1903), 108.
13
Matthew Hale, A Discourse of the Knowledge of God, and of Our Selves (London: William
Shrewsbery, 1688), sig. A3v. On Oxford’s scholastic education, compare Charles B. Schmitt,
John Case and Aristotelianism in Renaissance England (Kingston: McGill-Queen’s University
Press, 1983), 64–7.
14
Burnet, Life, 13–15.

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 166 David S. Sytsma

of twenty-five or twenty-six (1635–6) he began to grow in obedience, faith and

dependence on God.15
By the time Hale was called to the bar, he had begun to take his religious
practice seriously. His life, as evidenced by his scheme for daily living from
his diary, manifested characteristics consistent with Puritan introspective
Christianity: prayer, watchfulness over one’s passions, the daily mingling of
‘spiritual employments’ with one’s ordinary calling, suspicion towards
recreations (and specifically games) and attention to the ‘evidences’ of one’s
salvation.16 Following standard Puritan practice, Hale dedicated Sunday
(the ‘Lord’s Day’) strictly to religious observance for the rest of his life (the
only permissible activity being works of piety, charity and necessity), regu-
larly quizzing his family on Sunday sermons and then spending two to three
hours in theological meditation, and advising his children and grandchil-
dren to do the same.17 At the same time, Hale remained a loyal member of
the Church of England and did not follow the Puritans in denouncing the
church holiday of Christmas.18 He favoured the Book of Common Prayer over
the Directory for the Public Worship of God (1644), which he construed
narrowly as belonging to ‘some of the presbyterian judgement’. He also
supported the right of the magistrate to determine indifferent things (adia-
phora), although he wished accommodation to scrupulous Puritans for the
sake of unity. His Puritanism was of the more conformist variety along the
lines of what Baxter referred to as ‘moderate episcopal men’.19
Hale’s strict morality affected his early work as a barrister. If he judged
a person or case to be clearly immoral, he refused to provide counsel. (This

15
Lambeth MS 3500, f. 240r. See also Cromartie, Hale, 2.
16
See the scheme printed in Burnet, Life, 16–19; and Heward, Hale, 21–2. This evidence renders
problematic the interpretation of Cromartie, Hale, 141: ‘[Hale] differed from most puritans in
taking no great interest in himself, either as chief of sinners, or as a rescued saint.’ On Puritan
introspection, see Theodore Dwight Bozeman, The Precisianist Strain: Disciplinary Religion
and Antinomian Backlash in Puritanism to 1638 (Chapel Hill: University of North Carolina
Press, 2004), 84–144.
17
Burnet, Life, 76; Richard Baxter, Additional Notes on the Life and Death of Sir Matthew Hale, the
Late Universally Honoured and Loved Lord Chief Justice of the Kings Bench (London: Richard
Janeway, 1682), 23–4; Matthew Hale, The Works, Moral and Religious, ed. T. Thirwall, 2 vols.
(London: H.D. Symonds, 1805), 1:194–204; Matthew Hale, ‘Concerning the Observation of the
Lord’s Day or the Christian Sabbath’, in A Letter of Advice to His Grand-children, Mary, Gabriel,
Anne, Mary and Frances Hale (London: Taylor and Hessey, 1816), 72–8.
18
Robert C. Evans, Stephen Paul Bray and Christina M. Garner, ‘The “Christmas Poems” of Sir
Matthew Hale: Brief Preface and Annotated Texts’, Ben Jonson Journal 20:1 (2013): 95–125;
Burnet, Life, 112–15; Chris Durston, ‘Lords of Misrule: The Puritan War on Christmas 1642–60’,
History Today 35 (December 1985): 7–14.
19
Cromartie, Hale, 178, 181–3. See also Richard Baxter, Reliquiae Baxterianae (London:
T. Parkhurst et al., 1696), part II, 229.

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 Matthew Hale as Theologian and Natural Law Theorist 167

position stands at odds with what is today known as the cab-rank rule.) He also
refused to accept full profits for his practice. In ordinary cases, he returned
one-half of the fee to clients, and in easy cases he accepted a set fee of 10
shillings. When he acted as arbitrator in a case, he refused payment altogether
on the grounds that arbitrators are in essence judges.20 Politically, Hale was
a royalist.21 He served as council to Archbishop Laud (1643–4), the Duke of
Hamilton (1649) and the royalist Christopher Love (1651). He also married
into the royalist family of Anne Moore (c. 1642).22
While at Lincoln’s Inn, Hale became good friends with John Selden, who
was one of the most important influences on his life. Baxter said of Hale late in
life, ‘I know you are acquainted [with] how greatly he valued Mr Selden, being
one of his Executors; his Books and Picture being still near him’. According to
Burnet, Selden’s relationship set Hale on ‘a more enlarged pursuit of
Learning’, consisting of the study of Roman law, mathematics, philosophy,
medicine, anatomy, history and chronology.
But above all these he seemed to have made the study of Divinity the cheif of
all others, to which he not only directed everything else, but also arrived at
that pitch in it, that those who have read, what he has Written on these
Subjects, will think, they must have had most of his time and thoughts.23

This judgment is certainly justified by Hale’s extensive corpus of theological

manuscripts (discussed later in this chapter). When Selden died in 1654, Hale
was among the executors of his will. In his Of the Law of Nature, Hale later
paid Selden the distinct honour of citing his De jure naturali & gentium (1640)
on six occasions – more than any other work besides the Bible.
Throughout the 1650s and 1660s Hale’s public reputation increased. In 1652
he chaired the famous Hale Commission, which proposed reforms of judicial
administration, the mitigation of penalties in criminal law and the correction
of miscellaneous abuses. These proposals, which mostly did not come to
fruition at the time, nonetheless anticipated reforms carried out centuries
later. In 1653 he began his judicial career as Judge of the Common Pleas
and served there until the death of Cromwell in 1658, during which time he
also served as MP for Gloucestershire (1654–5). At the Restoration Hale was
made Chief Baron of the Exchequer (1660–71) before being appointed Chief
Justice of the King’s Bench (1671–6). He mourned the divisions created over
matters of ceremony by the Act of Uniformity (1662) and whenever possible
came to the assistance of nonconformists.24
20
Heward, Hale, 25–7. 21 Cromartie, Hale, 3, 42–57. 22 Heward, Hale, 33.
23
Baxter, Additional Notes, 40; Burnet, Life, 23–8. On Selden, see Chapter 7 in this volume.
24
Heward, Hale, 36–47, 65, 68.

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 168 David S. Sytsma

After moving to Acton in 1667, Hale became good friends with Richard
Baxter. The two attended St Mary’s church and soon struck up a friendship
which lasted until Hale’s death in 1676. By Baxter’s own account, he and Hale
carried on lively conversations about the nature and immortality of the soul
until Baxter moved to Totteridge in 1669. These conversations Baxter found ‘so
edifying, that [Hale’s] very Questions and Objections did help me to more light
than other mens solutions’.25 After Baxter’s move, he and Hale continued to
prod each other’s thinking forwards regarding pressing philosophical questions
through exchange of manuscripts and correspondence. In his own culminating
systematic theology, Methodus Theologiae Christianae (1681), Baxter credited
Hale with pressing him to expand his doctrine of creation to include an enlarged
discussion of physics, so Baxter’s Methodus would not exist in its present form
without the intervention of Hale.26 Baxter, himself one of the most learned
Puritans of the seventeenth century, clearly saw in Hale a uniquely gifted
theological mind. ‘I cannot easily praise [him] above his worth’, Baxter wrote.
‘And I scarce ever conversed so profitably with any other person in my Life.’27
Hale’s life after the Restoration was also characterised by a transition towards
Arminian ideas on salvation that approximated the theology of post-Restoration
Latitudinarians. According to his editor, in later years Hale ‘somewhat altered
his opinion touching some Points in Controversie, especially between the
Remonstrants and Contra-Remonstrants’.28 In the late 1650s, Hale still affirmed
the traditionally Calvinist belief that the light of nature is insufficient for
salvation, but after the Restoration he came to affirm the belief, associated
with Arminianism and Latitudinarianism, that virtuous pagans could be saved
through obedience to the natural law.29 Yet Hale was not a party man. Unlike
the Latitudinarians who were generally favourable to Cartesian philosophy, he
along with Baxter ‘greatly disliked’ the mechanical philosophy of René
Descartes (1596–1650) and the Neo-Epicureanism of Pierre Gassendi
(1592–1655).30 His discussion of natural law especially retained a good part of
his views from his early Puritan or Calvinist pre-Restoration phase.

25
Ibid., 94–100; Baxter, Reliquiae Baxterianae, part III, 47.
26
Richard Baxter, Methodus Theologiae Christianae (London: M. White & T. Snowden, 1681),
‘Praefatio’, sig. [A6r].
27
Baxter, Additional Notes, 6.
28
Hale, Discourse, sig. A1v. The editor was probably Edward Stephens. On Hale’s
Latitudinarianism, see Cromartie, Hale, 156–72. Remonstrants and Contra-Remonstrants
refer respectively to the Arminian party and their traditional Reformed opponents in the
Netherlands.
29
Cromartie, Hale, 164, n. 43; Sytsma, ‘General Introduction’, lii–lv.
30
Baxter, Additional Notes, 6. See also Sytsma, ‘General Introduction’, xxi–xxiii.

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 Matthew Hale as Theologian and Natural Law Theorist 169

The end of Hale’s life was marked by grief and apparent personal theologi-
cal doubts. Six of his ten children from his first marriage to Anne Moore
(d. c. 1658) had survived to adulthood. Hale remarried in 1667 to Anne Bishop
(d. 1694), likely his servant, but in the intervening years prior to his own death,
half of his adult children died. Hale’s first son, Robert, and his wife, Frances,
both died in 1670, leaving Hale to look after five grandchildren. Hale’s second
son, Matthew, died in 1675, leaving another grandson in Hale’s care. His third
son, Thomas, died about half a year after his marriage in 1676. Hale himself
became suddenly sick in October 1675, which forced his retirement in early
1676. Despite his sickness, Hale continued with his theological studies right up
until his death at Christmas 1676.31 Baxter had sent him his recently published
Catholick Theologie, which attempted to reconcile controversies over predes-
tination, grace and free will. Hale personally told Baxter, ‘I am more beholden
to you than you are aware of’, and particularly thanked him for his Catholick
Theologie. Yet Baxter judged Hale’s late fascination with controversies over
predestination and free will as unhealthy for a man preparing to die, and on
one occasion told him ‘more practical Writings were most suitable to his case,
who was going from this contentious world’.32 In retrospect, Hale’s late
theological interest in Baxter’s Catholick Theologie was probably indicative
of his personal theological struggles brought on by his post-Restoration transi-
tion to more Arminian theological ideas.

THEOLOGICAL WRITINGS

Modern readers of Hale’s works have long been familiar with his short theolo-
gical essays and meditations first published as Contemplations Moral and Divine
(three volumes; 1677, 1679, 1700) and later brought together in Works, Moral
and Religious (two volumes; 1805). These published writings are only a fraction
of Hale’s theological manuscripts, still largely unpublished, which are mainly
located in the Fairhurst Papers of the Lambeth Palace Library. These manu-
scripts comprise thousands of pages spread across dozens of volumes.33 There

31
Heward, Hale, 112–14, 116–19.
32
Baxter, Additional Notes, 30, 33–4. Baxter claimed that his Catholick Theologie helped to
resolve Hale’s uncertainties. See Baxter, ‘Preface’, in Matthew Hale, The Judgment of the Late
Chief Justice Sir Matthew Hale, of the Nature of True Religion, the Causes of Its Corruption,
and the Churches Calamity, by Mens Additions and Violences: With the Desired Cure
(London: B. Simmons, 1684), sig. A3.
33
Hale’s theological writings are in Lambeth MSS 3480–3509 of the Fairhurst Papers (MSS
3470–3533). For contents, see Cromartie, Hale, 241–2; the online catalogue of the Lambeth
Palace Library (http://archives.lambethpalacelibrary.org.uk/CalmView) includes detailed
descriptions based on the typescript Catalogue of the Fairhurst Papers (1990) by Geoffrey Bill.

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 170 David S. Sytsma

are also three manuscript copies of Hale’s treatise on the law of nature, also
a heavily theological work, housed at the British Library.34 To date Cromartie
has examined the Lambeth manuscripts in greatest detail, and I have worked on
a critical edition of Hale’s treatise on natural law. Yet these studies only scratch
the surface and much work remains before a complete picture of Hale’s
theological mind can be drawn. Here I will set about the modest task of
introducing readers to the main contours of Hale’s large theological corpus in
order to show that this aspect of his thought was far from marginal. Instead,
Burnet’s observation that Hale early in his legal career ‘seemed to have made the
study of Divinity the chief of all others’ ought to be taken quite seriously.
Most of Hale’s theological writings originated, appropriately enough, from
his rigorous observation of the Lord’s Day as a time set aside specially to God.
In addition to his weekly duties of public and household worship, he set aside
time on Sunday afternoons, between the evening sermon and supper, for
personal theological meditation.35 He was in the habit of writing his thoughts
down, he tells us, for a threefold end:
1 To keepe my thoughts fixed
2 To keepe them from beinge wholly lost
3 That I might in after tyme when perchance my understandinge were
better informed see and corre my former mistakes and judge of my the
improvement of my own knowledge in the intervall of <between> the
wrightinge & second readinge of it36

These remarks of Hale applied both to his large multi-volume theological

works and to shorter exegetical studies on Scripture. An eyewitness to Hale’s
practice of writing, most likely his son-in-law Edward Stephens, recorded the
following observations regarding Hale’s methodical and spontaneous manner
of writing:
His usual Manner of writing these things was this: When he had resolved on
the Subject, the first thing he usually did, was with his pen upon some loose
piece of paper, and sometimes upon a corner or the margin of the Paper he
wrote on, to draw a Scheme of his whole Discourse, or of so much of it as he
designed at that time to consider. This done he tap’d his thoughts and let
them run, as he expressed it to me himself; and they usually ran as fast as his
34
In chronological order: Add. MS 18235, ff. 41–147 (1693); Harley MS 7159, ff. 1–266 (1696);
Hargrave MS 485 (late eighteenth century). The autograph is not extant. See my textual
introduction in Hale, Law of Nature, lvii–lxvi.
35
Hale, Discourse, sig. A3v; Baxter, Additional Notes, 31.
36
Lambeth MS 3493, f. ii. Cf. Lambeth MS 3509, f. 70; [Edward Stephens], ‘Preface’, in
Matthew Hale, Contemplations Moral and Divine (London: William Godbid, 1676), sig.
A2r; Hale, Discourse, sig. A4r; Cromartie, Hale, 6, 156.

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 Matthew Hale as Theologian and Natural Law Theorist 171

hand (though a very ready one) could trace them; insomuch that in that
space, as he hath told me, he often wrote two sheets, and at other times
between one and two; and I have my self known him write according to that
proportion, when I have been reading in the same room with him, for divers
hours together. So that these writings are plainly a kind of extempore
Meditations, only they came from a Head and Heart well fraught with
a rich Treasure of Humane and Divine Knowledge, which the famous
Legislator Justinian makes the necessary qualifications of a compleat
Lawyer. And here it is farther to be observed, that all his larger Tracts, such
as this [Discourse of the Knowledge of God, and of our Selves], which could not
be finished at one time, were written upon great intervals of time, and such
wherein much business of a quite different Nature had interposed, which
usually interrupt the thread of a Mans thoughts.37

Besides his stated intention of writing to ‘fix’ his own thoughts, Hale may have
intended such manuscripts for a wider audience, whether through future pub-
lication or limited circulation. He himself at the end of his life revised one of these
earlier manuscripts, which was published as Primitive Origination of Mankind
(1677), while circulating other manuscripts to friends, including John Wilkins
and John Tillotson.38 Although in his will Hale forbade the posthumous publica-
tion of his manuscripts, his son-in-law Edward Stephens claimed that Hale
changed his mind, and in his codicil of November 1666 Hale provided directions
for how proceeds from his future publications should be spent. Burnet under-
stood Hale’s original prohibition to be the result of a licensing law, which would
have resulted in deletions and alterations of Hale’s texts.39
The theological manuscripts cover a variety of genres typical of the seven-
teenth century. They can be classed into the following broad categories:
exegetical and chronological studies of Scripture, theoretical doctrinal
works, works on theological ethics and natural law, polemical works, devo-
tional works and correspondence.40

Exegetical Works
There are at least two Old Testament exegetical studies. One on Proverbs is
described as ‘som observations upon the proverbs of Solaman the wise speeches

37
Hale, Discourse, sig. A4. Whereas Cromartie, Hale, 6, 141–2, assumed this preface to be written
by Baxter, in fact the author of the preface, in a page later inserted into it, refers to himself as
‘Mr. S.’ and took responsibility for publishing Hale’s Contemplations (1676), which we know
was edited by Edward Stephens. See Hale, Discourse, sigs. *3r, *4r.
38
See Cromartie, Hale, 157.
39
Hale, Discourse, sig. A5v; Burnet, Life, 185; Heward, Hale, 121–2.
40
Unless otherwise noted, manuscripts refer to the Lambeth Palace Library.

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 172 David S. Sytsma

of the wisest of men’ (21 November 1669; MS 3509, ff. 70–95). Another consists
of a commentary on the book of Job (MS 3488, ff. 106v–185v). Like his con-
temporaries, Hale was also interested in biblical chronology. There are more
than two volumes of notes on chronology (MSS 3486; 3487; 3488, ff. 3–103).

Doctrinal Works
The doctrinal works constitute the bulk of Hale’s manuscripts. To Hale’s early
Puritan period belongs ‘Of the knowledge of God and of ourselves 1. by the light
of Nature 2. by the S. Scriptures’ (c. 1639–41; MS 3505, ff. 1–195v), later
published as A Discourse of the Knowledge of God, and of Our Selves (1688).41
The discussion of God, humanity and salvation in this book is representative of
Reformed orthodoxy and in continuity with the teachings of the Westminster
Confession of Faith published shortly thereafter. A treatise on the divine origin
and purpose of the creation of man (30 January 1651; MSS 3481), along with
a continuation as part 2 on the existence of God in two separate attempts
(MSS 3483, ff. 117–120v; 3484), also dates from this early period. A short escha-
tological work ‘Of judgment’ (1 January 1654; MS 3509, ff. 1–13), which addresses
Christ’s role in the final judgment, likewise belongs to Hale’s early period.
Burnet relates that Hale was at work over the course of seven years on
a multi-part project against atheism.42 According to Burnet, the first part was
the Primitive Origination of Mankind (1677), of which an apparently early
draft exists (Sept. 1659; MS 3482). Related to this work are two volumes
‘Concerninge the secondary origination of mankind by naturall propagation’
(MSS 3489 [book 1]; 3490 [book 2]) which concludes with a discussion of
spiritual regeneration (MS 3490, ff. 75–79v). Following Burnet’s scheme, part
2 of Hale’s project addressed the nature and immortality of the soul, of which
there are at least seven partial or complete treatises (MSS 3498, ff. 21–78; 3499;
3500; 3504; 3509, ff. 18–52).
According to Burnet, the third part of Hale’s anti-atheist project dealt with the
doctrine of God’s attributes and the related doctrines of providence and mor-
ality, while the fourth part addressed the truth and authority of the Scriptures.
These third and fourth parts of Burnet’s scheme correspond to a massive ten-part
manuscript ‘De Deo’ (1662–7) spread out over five volumes and, according to
Cromartie, consisting of nearly a million words (MSS 3491–5).43
In addition to his massive ‘De Deo’ manuscript, there exist a number of
short manuscripts covering a variety of theological topics. Hale was greatly

41
For dates, see preface to Hale, Discourse, sig. A2r; Cromartie, Hale, 141.
42
Burnet, Life, 81–2. 43 Cromartie, Hale, 156–7.

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 Matthew Hale as Theologian and Natural Law Theorist 173

concerned with matters of theological prolegomena, and among his manu-

scripts are short works on reason and faith, religion and revelation. On the
relation of reason and faith, Hale wrote: ‘That reason not a sufficient in guide
in matters of fayth’ (MS 3506, ff. 101–8);44 ‘Concerninge humane reason and
learninge in matters of Religion’ (MS 3509, ff. 122–5); ‘The confession and
reason of my fayth’ (MS 3488, ff. 3–103); and ‘A breife disquisition touchinge
the rule of fayth in relation to devine truthes accordinge to the ordinary
evidences of reason’ [December 1665] (MS 3497, ff. 71–117).
On the nature of religion and revelation, Hale wrote a number of works.
These include ‘Of religion and the contests concerninge religion’ (1661; MS
3497, ff. 1–64v); ‘Concerning Religion, the Superstructions upon it and
Animosities about them’ (MS 3485, ff. 105–12v), published in Works 1:318–30;
‘Religion the ends and uses of it and the errors of men touchinge it’ (MS 3485,
ff. 115–26v), published in Works 1:288–307; ‘Concerninge prophesyes and
predictions of future events’ (MS 3507, ff. 51–54v); ‘Evidences touchinge the
truth and devine authority of the holy scriptures’ (MS 3509, ff. 107–111v); and
‘The evidence of the truth of the gospell’ (MS 3485, ff. 1–102).
A handful of other manuscripts discuss the Church and ceremonies, as well as
other miscellaneous topics. Those discussing ecclesiology and ceremonies
include ‘Of the Church’ (MS 3507, ff. 117–122v); ‘Touchinge church government’
(MS 3507, ff. 143–73); ‘Touchinge ceremonyes’ (MS 3506, ff. 99–100); ‘That
a preachinge ministry of the Gospell must bee kept up’ (MS 3506, ff. 125–128v);
‘Concerninge the commemoration of the birth of Christ 2 thinges considerable.
1 Whither it bee to bee observed. 2 How it is to bee observed’ (MS 3507, ff. 59–73);
‘Church musiqe’ (MS 3507, ff. 115–16); and ‘A contemplation touchinge the
variety of men and sects’ (MS 3509, ff. 57–60v). Other short miscellaneous
doctrinal manuscripts include ‘Concerninge the state of immortallity’ (MS
3506, ff. 109–10); ‘The world’ (MS 3509, ff. 61–2); ‘Observations touchinge the
feast of Pentecost’ (MS 3509, ff. 55–56v); theological speculations on the magnet
(MS 3499, ff. 226–41); and ‘Concerninge the greate mercy of God in preservinge
us from the power and malice of evill angells’ (16 March 1662; MS 3506,
ff. 111–14), printed in A Collection of Modern Relations of Matters of Fact,
Concerning Witches and Witchcraft (London: John Harris, 1693), 1–8.

Theological Ethics and Natural Law

Hale’s greatest work of theological ethics is certainly his unpublished treatise
Of the Law of Nature. This work has rightly been referred to as belonging to

44
Cromartie dates this to the early 1660s (ibid., 164).

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 174 David S. Sytsma

a ‘hybrid’ genre, ‘being partly legal and partly religious’.45 A number of

occasional works overlap with subject matter in Of the Law of Nature and
address ethics or law from a theological standpoint. Two parts of ‘De Deo’
(already discussed) include books on ethics and conscience (MS 3492). Other
occasional ethical writings include ‘Concerninge the innate light of con-
science’ (MS 3507, ff. 1–12v), ‘Certain difficultyes occurringe in the treatises
of liberty of conscience’ (MS 3498, ff. 268–276v), ‘Concerninge thinges indif-
ferent’ (MS 3507, ff. 14–36v), ‘Concerninge the punishment of offences and
the proportion between the offences and punishments with theyr mitigations’
(MS 3507, ff. 139–140v) and ‘The use of the law’ (MS 3506, ff. 121–122v).
Hale wrote many occasional pieces on Christian virtues and practice.
Included in his Works are essays on the virtues of humility, modesty, content-
edness, self-denial, moderation and patience. They also include essays on the
redemption of time, stewardship, happiness, the golden rule and provision for
the poor. Among the unpublished manuscripts are various short works:
‘Of Moderation’ (MS 3497, ff. 121–135v); ‘Of contentment or contentation’
(MS 3498, f. 195); ‘Of contentation’ [on Philippians 4:11] (MS 3498,
ff. 196–199v); ‘Concerninge the procuringe causes of evils and afflictions’
(MS 3498, ff. 218–22), a reflection on Proverbs 1:30–31; and ‘The feare of the
Lord is the beginninge of wisdome’ (MS 3505, ff. 207–229v). With respect to
his own practice as a judge, Hale discusses the obligations and difficulties of
his vocation in light of his theological beliefs in a diary entry dated 1668.

Polemical Works
For most seventeenth-century Protestants, the Church of Rome and
Socinianism constituted two of the greatest threats to theological orthodoxy.
Hale was no exception. He has a treatise on Roman Catholicism titled
‘Touchinge policy and the use therof in matters of religion’ (MSS 3496; 3498, ff.
279–305). He also has a few pages of reflections on the adoration and veneration
of saints (MS 3507, ff. 125–126v). He has one work that addresses Socinianism:
‘Touchinge punishments, the relaxation, remission and translation of them in
order to the disputes between us and the socinians’ (MS 3498, ff. 309–333v).

Devotional Works
Since Hale’s theological writing often took place on Sunday afternoons much
of it arose in a devotional context. Indeed various manuscripts can be

45
Heward, Hale, 132.

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 Matthew Hale as Theologian and Natural Law Theorist 175

described as specifically directed to devotional subjects. Hale composed

prayers, the most significant of which is that composed at the end of his life
to thank God for the completion of his theological writings (3 August 1673; MS
3500, ff. 240–4). Hale also composed poems regularly on Christmas Day to
celebrate the birth of Jesus.46 He reflected on the duty of thanksgiving to God
on more than one occasion (MS 3509, f. 99; ff. 101–3). He wrote about the
nature of true wisdom: ‘Concerninge true wisdome, the knowledge of and
conformity unto the cheif end of our beinge’ (MS 3509, ff. 116–17) and ‘A great
pt. of wisdome to know the tymes’ (MS 3509, ff. 120–1). And he reflected on
‘The state of this lyfe’ (MS 3509, ff. 118–19) and ‘Observations concerninge the
present providences’ (1660; MS 3507, f. 137).

Correspondence
Most of Hale’s correspondence consists of advice to his children. He wrote to
his children about the principles of religion (MS 3840, ff. i–iv), affliction (MS
3506, ff. 97–8), the ‘Infermityes of youth’ (MS 3508, ff. 37 v–49v) and
‘Directions touching the keeping of the Lord’s Day’ (MS 3508, ff. 13v–21).47
An important correspondence between Hale and Richard Baxter is also extant
(MS 3499, ff. 63–115). Sometime in 1672, Baxter had sent Hale a draft of his
‘Of the Nature and Immortality of Humane Soules’.48 Hale replied with an
undated introductory letter (MS 3499, ff. 65–77), followed by annotations on
Baxter’s entire treatise dated ‘1 January 1672’ [1673 NS] (ff. 83–115r). Baxter
replied with a short letter thanking Hale on 20 September 1673 (f. 81v), along
with his own notes in reply to Hale’s annotations.

THEOLOGICAL REFLECTIONS ON THE OFFICE OF JUDGE

The impact of Hale’s theological exercises was not limited to the speculations of
theological treatises or private meditations, but extended to his practical self-
reflection on his own vocation as a judge. Shortly after becoming Lord Chief
Baron in 1660, Hale wrote down a series of rules for himself, ‘Things Necessary
to be Continually had in Remembrance’. These rules express reliance on God
and emphasise the need for self-denial, impartiality and compassion:

I. That in the administration of Justice, I am intrusted for God, the

King and Country; and therefore,
46
Evans et al., ‘“Christmas Poems” of Sir Matthew Hale’, 95–125.
47
A partial printing of the last (ff. 13v–14v) is in Hale, Works, 1:194–6.
48
Dr Williams’s Library, London, Baxter Treatises MS 19.351.

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 176 David S. Sytsma

II. That it be done, 1. Uprightly, 2. Deliberately, 3. Resolutely.

III. That I rest not upon my own Understanding or Strength, but
Implore and rest upon the Direction and Strength of God.
IV. That in the Execution of Justice, I carefully lay aside my own
Passions, and not give way to them, however provoked.
V. That I be wholly intent upon the Business I am about, remitting all
other Cares and Thoughts, as unseasonable and Interruptions.
VI. That I suffer not my self to be prepossessed with any Judgment at all,
till the whole Business and both Parties be heard.
VII. That I never engage my self in the beginning of any Cause, but
reserve my self unprejudiced till the whole be heard.
VIII. That in Business Capital, though my Nature prompt me to Pity; yet
to consider, that there is also a Pity due to the Country.
IX. That I be not too Riged in matters purely Conscientious, where all
the harm is Diversity of Judgment.
X. That I be not biassed with Compassion to the Poor, or favour to the
Rich, in point of Justice.
XI. That Popular, or Court Applause, or Distaste, have no Influence into
anything I do in point of Distribution of Justice.
XII. Not to be sollicitous what Men will say or think, so long as I keep my
self exactly according to the Rule of Justice.
XIII. If in Criminals it be a measuring Cast, to incline to Mercy and
Acquittal.
XIV. In Criminals that consist merely in words, when no more harm
ensues, Moderation is no Injustice.
XV. In Criminals of Blood, if the Fact be Evident, Severity is Justice.
XVI. To abhor all private Sollicitations, of what kind soever, and by whom
soever, in matters Depending.
XVII. To charge my Servants, 1. Not to interpose in any Business whatso-
ever, 2. Not to take more than their known Fees, 3. Not to give any
undue precedence to Causes, 4. Not to recommend Councill.
XVIII. To be short and sparing at Meals, that I may be the fitter for Business.49

It seems that these rules reflect a genuine intention on Hale’s part actually to
live in conformity to them. Edmund Heward observes various examples from
Hale’s life that are consistent with rules XI, XVI and XVII.50 Two of the rules
are overtly theological (I and III), so there is no question that Hale’s theolo-
gical perspective played a general role in his self-understanding as judge.
But a further and more specific argument can be sustained that the remainder
of his rules regarding the conduct of his profession are largely taken from

49
Burnet, Life, 57–60. Burnet claims to have copied these from Hale’s own hand.
50
Heward, Hale, 67–9.

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 Matthew Hale as Theologian and Natural Law Theorist 177

theological considerations. In the autumn of 1668, while on circuit, Hale wrote

down reflections in his diary on the office of judge. (This was the same diary and
time in which he drafted an outline for his treatise on natural law discussed in
the next section.)51 This diary entry begins with biblical citations from the Old
Testament, largely from the Mosaic law, on the topic of judging. Hale repro-
duces the following verses in sequence: Exodus 23:2–3, 6–8; Deuteronomy 16:
18–20; 2 Chronicles 19:5–7, 9, 11; Exodus 18: 21–22; Leviticus 19:15; and
Deuteronomy 13:14 (ff. 2r–3r). He then reflects on the difficulties and qualifica-
tions of the office (ff. 3r–13v). His reflections not only mirror the content of the
rules, they are also interspersed with theological explanation.
When Hale’s diary entry is placed side by side with the rules, it is easy to
perceive an underlying theological motivation for a number of those rules.
First and most obviously, rule III (not to rest ‘on my own Understanding or
Strength’ but on God) is in all likelihood an allusion to Proverbs 3:5, ‘lean not
unto thine own understanding’ (KJV). This rule also has parallels in the diary,
first to the office of judge which ‘requires a mind constantly awed with the fear
of almighty God and sense of His presence’ (f. 3v) and, second to Hale’s
recitation of the admonition of Jehoshaphat to judges (2 Chron. 19:6) that
‘they judge not for man but for God’ (f. 4v).
Rules VI and VII deal with hearing the entire case before forming
a judgment. This corresponds to Hale’s diary reflections on avoiding hasty
judgments, where Hale writes that the judge must ‘pause and consider, turn
every stone, weigh every question, every answer, every circumstance, follow
the wise direction of Moses in a case of importance to inquire, ask, diligently
inquire, behold if it be true and the thing be certain’ (f. 6r). The example of
Moses here mentioned is that of Deuteronomy 13:14, which Hale had cited at
the beginning of his diary entry: ‘Then shalt thou inquire and make search and
ask and behold if it be truth and the thing be certain, that such abomination is
wrought among you’ (f. 3r). Thus, the example of Moses provides a theological
rationale for rules VI and VII.
Rules X, XI and XII relate to the problem of bias engendered by various
groups: rich and poor (rule X), popular or court praise (rule XI) and common

51
Matthew Hale, ‘Notes on circuitus autumnalis’ [1668], ff. 2r–14r, the James Marshall and Marie-
Louise Osborn Collection, Beinecke Rare Book and Manuscript Library, Yale University, New
Haven, CT. Digital copy at http://brbl-dl.library.yale.edu/vufind/Record/3882610; printed in
Maija Jansson, ‘Matthew Hale on Judges and Judging’, Journal of Legal History 9:2 (1988):
201–13. The last three pages (ff. 15r–16r) contain Hale’s outline for a ‘treatise on natural law’ (De
lege naturali tractatus). This work is also discussed in David Saunders, ‘The Judicial Persona in
Historical Context: The Case of Matthew Hale’, in The Philosopher in Early Modern Europe:
The Nature of a Contested Identity, ed. Conal Condren, Stephen Gaukroger and Ian Hunter
(Cambridge: Cambridge University Press, 2006), 140–59.

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 178 David S. Sytsma

opinion (rule XII). These rules have obvious parallels in Hale’s diary citations of
Exodus 23:2–3, 6 and Leviticus 19:15. The former, in Hale’s citation, reads,
‘Thou shalt not follow a multitude to do evil; neither shalt thou speak in
a cause to decline after many to wrest judgment. Neither shalt thou counte-
nance a poor man in his cause. Thou shalt not wrest the judgment of the poor in
his cause’ (f. 2r). The latter reads, ‘Ye shall do no unrighteousness in judgment,
thou shalt not respect the person of the poor nor honor the person of the mighty,
but in righteousness shalt thou judge thy neighbor’ (f. 2v). These verses chosen
by Hale forbid bias towards or against the poor, and towards the mighty and the
multitude. These groups are precisely Hale’s concern in rules X–XII.
Rule XIII states that in criminal cases difficult to judge (‘measuring Cast’) the
judge ought to incline towards mercy and acquittal. In his diary, Hale provides
a theological justification for this position. He says that ‘though to condemn the
innocent and to acquit the guilty are both abomination to God’, still it is much
worse to condemn even one innocent person to death than ten guilty ones.
The reason given is that ‘the hand of divine justice in the way of His providence
may reach in after time a guilty person, or of evidence to convict him, he may
hereafter repent and amend; but the loss of the life of an innocent is irreco[n]
ver[t]able in this world’ (f. 6v). Hale’s reason here seems to derive in part from
his citation of Exodus 23:7, ‘Keep thee far from a false matter; the innocent and
righteous slay thou not, for I will not justify the wicked’ (f. 2r). Hale also argues
that the Jewish law requiring at least two witnesses for a death sentence reflected
the expectation of ‘full evidence’ for conviction in order to exclude the convic-
tion of the innocent (f. 7r). Thus the presumption of innocence found in rule
XIII is laden with theological import, both from the example of Mosaic law and
Hale’s understanding of God’s providence.
Hale balances the mercy of rule XIII with severity in rule XV. In cases of
murder (‘blood’) where crime is evident, he says, ‘Severity is Justice’. In his
diary, Hale explains that although the example of capital punishment acts as
a deterrent for similar offences, the primary reason is ‘because the everlasting
edict of almighty God is of perpetual obligation that the shedders of human
blood should be punished with death’ (f. 9v). This ‘everlasting edict’ is almost
certainly a reference to Genesis 9:6, ‘Whoso sheddeth man’s blood, by man
shall his blood be shed: for in the image of God made he man’ (KJV). In his
History of the Pleas of the Crown, Hale interpreted Genesis 9:6 as indicating an
exception to the general rule that the degrees and applications of penalties are
a matter of positive and not natural law. According to Hale, ‘Only in the case of
murder there seems to be a justice of retaliation, if not ex lege naturali [from
the law of nature], yet at least by a general divine law given to all mankind,
Gen. ix.6.’ Exceptions to capital punishment in the case of murder may be

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 Matthew Hale as Theologian and Natural Law Theorist 179

permitted, says Hale, citing the example of God remitting Cain’s punishment.
But they ‘ought to be very rare, and upon great occasions’.52
Rule XVI states that the judge should ‘abhor all private Sollicitations’. In his
diary, Hale explains that solicitations are an instance of temptation which
corrupts judgment: ‘That a man avoid all such temptations as may be an
occasion of perverting his judgment, as solicitations, prepossessions, gifts,
kindnesses, addresses for or against any cause or person’ (f. 6r). This rule
clearly corresponds to Hale’s diary citation of Exodus 23:8 and Deuteronomy
16:19. The former reads, ‘And thou shalt take no gift, for the gift blindeth the
wise and perverteth the words of the righteous.’ The latter reads, ‘Thou shalt
not wrest judgment, thou shalt not respect persons neither take a gift, for a gift
doth blind the eyes of the wise and perverteth the words of the righteous’ (f. 2r).
This brief comparison of Hale’s rules on judging with his diary reflections on
the same topic reveals the practical impact of Hale’s theological views on his
own vocation as a judge. Many rules that Hale formulated to guide his general
conduct first as Chief Baron of the Exchequer (1660–71) and then as Chief
Justice of the King’s Bench (1671–6) are rooted in theological considerations.
These theological considerations also demonstrate that Hale understood the
Mosaic law to embody universal principles of justice or natural law which could
be applied to his own situation. In this respect Hale reflected the widespread
contemporary belief that the judicial laws of the Old Testament contained
eternally valid precepts of general equity.53

NATURAL LAW THEORY

Of the Law of Nature is the title given by Burnet in his Life of Hale (1681) to
Hale’s treatise on the natural law, which is often cited by the title of its
late-eighteenth-century copy, Treatise of the Nature of Lawes in Generall and
Touching the Law of Nature. The original manuscript Of the Law of Nature is
no longer extant, but several copies remain, including a seventeenth-century
copy of the original. Hale originally composed his treatise sometime between
late 1668 and 1671 after drawing up an initial outline for a ‘treatise on natural law’
(De lege naturali tractatus) in autumn of 1668.54 The mature Law of Nature
consists of thirteen chapters, of which the initial cover the nature, effect and
kinds of laws in general (chapters 1–3), while the remainder discuss natural law

52
Matthew Hale, Historia placitorum coronae: The History of the Pleas of the Crown, 2 vols.
(Savoy [London]: E. and R. Nutt, and R. Gosling, 1736), 1:13–14.
53
See also Richard J. Ross, ‘Distinguishing Eternal from Transient Law: Natural Law and the
Judicial Laws of Moses’, Past and Present 217 (November 2012): 79–115.
54
See my textual introduction in Hale, Law of Nature, lvii–lviii.

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 180 David S. Sytsma

(chapters 4–13). The initial outline from 1668 organised the description of
natural law into Aristotle’s four causes, and Hale’s Law of Nature generally
follows an Aristotelian causal framework regarding the material (chapters 4–6),
formal (chapters 7–11) and final (chapter 13) causes of natural law. The most
substantial description of the content of the natural law is contained in chapter
5, while the obligation of the natural law is addressed in chapter 7 and the
promulgation of the natural law, both naturally in the soul and through super-
natural revelation, is discussed in chapters 8–11. Connections to positive law are
most clearly set forth in chapter 12, ‘Concerning human Law’s and their use in
relation to the Law of Nature’, although these connections are also touched on
throughout the work. The treatise concludes with an argument, reflective of
Hale’s later Arminian theology, that virtuous pagans could be saved by obedi-
ence to natural law (chapter 13).
Given the quantity and importance of Hale’s theological output, it is remark-
able that the theological dimension to his treatise on natural law has received so
little attention.55 Yet Hale’s treatise bristles with Scriptural references and
theological distinctions. He defines natural law as ‘the Law of Almighty God
given by him to Man with his Nature discovering the morall good and moral
evill of Moral Actions, commanding the former, and forbidding the latter by the
secret voice or dictate of his implanted nature, his reason, and his concience’.56
He also cites the apostle Paul (Rom. 1–2) as an authority, and his identification
of the law written on the heart (Rom. 2:15) with Stoic common notions reflects
traditional Protestant exegesis of that locus classicus.57
I have elsewhere discussed the theological import of Hale’s Law of Nature at
length. Briefly, although Hale is often presented as closely following John
Selden, Hale’s views on natural law, despite his Arminian argument for the
possible salvation of non-Christians, in other respects show strong continuity
with his earlier Puritanism and the natural law theories of Francisco Suárez
(1548–1617) and Hugo Grotius (1583–1645). Disregarding Selden’s objections to
deriving the content of the natural law from reason and the more civilised
nations (gentes moratiores) as unreliable guides, Hale follows Grotius rather
than his mentor. Moreover, Hale’s account of the principles and conclusions of
the natural law (the order and extent of knowledge) is itself an expansion of
Suárez’s account, while Hale’s views on the nature of formal reason (ratio
formalis) of the natural law follow Suárez’s resolution to the scholastic question
whether natural law is properly indicative (lex indicativa; the intellectualist
position) or prescriptive (lex praeceptiva; the voluntarist position). Hale,

55
Sytsma, ‘General Introduction’, xiii. 56 Hale, Law of Nature, 41.
57
Ibid., 41–42, 150–51 with explanatory note on 42.

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 Matthew Hale as Theologian and Natural Law Theorist 181

following Suárez, argues that the natural law is both indicative and prescriptive,
according to which the divine wisdom is the foundation of the intrinsic good-
ness of the natural law, while the divine will is the foundation for the formal
reason or obligation of the natural law. Selden’s views on Noachic precepts and
the importance of the precept ‘faith must be kept’ (fides est servanda) are
incorporated into this larger framework. With respect to the publication of the
natural law first in the human mind through common notions, inclinations and
conscience, and next through its republication in special revelation in the
Decalogue and Christ’s Sermon on the Mount, Hale recapitulates at greater
length the Reformed Puritanism of his youth as expressed in his treatise
Discourse of the Knowledge of God, and of Our Selves. There is no sense of
a novel moral epistemology or secularisation of the natural law which historians
commonly associate with the natural law theory of Samuel Pufendorf (1632–94)
and Christian Thomasius (1655–1728). In fact, Hale was overtly critical of the
reduction of natural law to self-preservation, an opinion commonly associated
with the natural law theory of Thomas Hobbes (1588–1679).58
With these considerations regarding the sources and content of Hale’s
natural law theory in mind, we now turn to the relation of natural to positive
law, since this topic is of direct relevance for how Hale understood natural law
to apply to his wider legal thought. Hale is sometimes presented as following
Selden down a path of legal positivism, according to which the obligatory
force of law originates in explicit or implicit consent as is expressed in the
command of a sovereign.59 While this judgment contains a partial truth
inasmuch as Hale emphasises the necessity of the will of the sovereign for
obligation, it is problematic for two reasons. First, whether or not Selden fits
the mould of a legal positivist, a careful reading of Law of Nature reveals that
Hale was not a strict disciple of Selden. Second, although for Hale divine and
human will create obligation, the contents of the natural law are rooted in
their prior conformity to right reason. As the title of chapter 6 from Law of
Nature states, ‘these Natural Laws have in their Matter an intrinsick Moral
goodness & Congruity to Right reason and Conveniency to the Condition of
Mankind Antecedent to, and Abstractive from any Law injoining Them’.60
The natural law is an expression of God’s wisdom, and the moral validity of
human law depends on its conformity to this natural law. For Hale, it is

58
Sytsma, ‘General Introduction’, xxxiii–lv. On Selden’s natural law theory, see the contribution
of John Witte, Jr. in this volume.
59
Michael Lobban, A History of the Philosophy of Law in the Common Law World, 1600–1900
(Dordrecht: Springer, 2007), 61–4.
60
Hale, Law of Nature, 107.

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 182 David S. Sytsma

possible to evaluate the will of a human sovereign against a higher standard;

and even God’s prescriptive will conforms to God’s wisdom.
Hale most clearly sets forth his understanding of the relation between natural
and positive law in chapter 12 of Law of Nature, ‘Concerning human Law’s and
their use in relation to the Law of Nature’. A good part of this chapter consists of
Hale’s exposition of the concept of permissive law (lex permissiva), a category
distinct from both natural and human law, which by the seventeenth century
had already been well established in natural law theory. Permissive law, says
Hale, is properly of divine institution: ‘it is that Law of Almighty God whereby
things not determined by the Law of Nature are left to the determination of
human Law’s’.61 Just as he had analysed the natural law according to its matter
and formal reason, Hale analyses the permissive law according to its matter and
formality. There is here more than a parallelism of language. For both natural
and permissive law, the formality corresponds to will, whether divine or
human, that provides obligatory force, while the matter refers to content with
characteristics considered antecedently to obligation arising from will.
The matter of permissive law, according to Hale, consists of ‘those moral
actions that are left indifferent and unprohibited or uncommanded by the Law
of Nature’.62 Hale enumerates three kinds of moral actions that fall under the
material content of permissive law:
1 Indifferent moral actions that ‘in themselves fall neither under the
Command or prohibition of the Natural Law’.
2 Things that do fall under the ‘precipient part’ of natural law, but their
circumstances (time, place, manner, etc.) are not determined by nat-
ural law.
3 The exact determination of external punishments for things prohibited
by the natural law.63
Under the description of natural law, Hale adds that permissive law entails that
‘No human Law can derogate from the Law of Nature, it cannot forbid what
the Law of Nature injoins, nor Command what the Law of Nature prohibits.’
Likewise, it also entails that when human laws command or forbid what the
natural law also forbids, this is only ‘a Further manifestation’ of an ‘Original
Obligation’ of natural law.64 Thus, with his explanation of the matter of

61
Ibid., 194. On permissive law, see Brian Tierney, ‘Permissive Natural Law and Property:
Gratian to Kant’, Journal of the History of Ideas 62:3 (2001): 381–99; and Brian Tierney,
Liberty and Law: The Idea of Permissive Natural Law, 1100–1800 (Washington, DC:
Catholic University of America Press, 2014).
62
Hale, Law of Nature, 194. 63 Ibid., 192–4. 64 Ibid., 194.

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 Matthew Hale as Theologian and Natural Law Theorist 183

permissive law, Hale affirms both that human law is an expansion of natural
law and that it ought not contradict natural law.
The formality of permissive law corresponds to God’s will. Hale says this
formality consists in ‘three Acts of the Divine will manifested in the Law of
Nature’:
1 ‘In the Leaving of some things out of the Command or prohibition of
any Law of God whither Natural or positive’;
2 ‘In subjecting those things thus left undetermin’d to the power of the
Civil Magistrate to determine & specificate’;
3 ‘In obliging of the Subjects of such Magistrates to the Obedience to
those Laws by the very law of Nature’.
This third point regarding obligation to the civil magistrate arises from two
heads of natural law (Capita Legis Naturalis): first, the Noachic law concern-
ing the establishment of judges which is confirmed by Deut. 16:18 and Deut.
17:12; and, second, the obligation to keep faith (fidem servare), by which our
consciences are obligated to obey authority either by express or tacit consent.65
These last two heads of natural law, of course, are taken from Selden.66
In setting forth his understanding of permissive law, Hale thus incorporated
Selden’s insight that human government arises from a contract with the duty
‘faith must be kept’ (fides est servanda). At the same time, he limited this
Seldenian influence to the formality of permissive law. In his discussion of the
material content of permissive law, Hale perpetuated an important aspect of
early modern natural law theory, which viewed positive law as built on the
natural law and sought to harmonise their contents.67 Moreover, with his
statement that human law ‘cannot forbid what the Law of Nature injoins,
nor Command what the Law of Nature prohibits’,68 Hale opened up the
theoretical possibility to declare a human law ‘void’ and no longer obligating.
It is interesting to observe that in Hale’s concept of permissive law are
contained all the elements – natural law theory, historical jurisprudence and
the theory of sovereignty – which Harold Berman labelled Hale’s ‘integrative
jurisprudence’.69 The permissive law’s material content, which allows for

65
Ibid., 195.
66
See also ibid., 87, 103–6, 180–1. For a discussion of Selden as a great Christian jurist, see
Chapter 7 in this volume.
67
See also H. Richard Helmholz, ‘Bonham’s Case, Judicial Review, and the Law of Nature’,
Journal of Legal Analysis 1:1 (2009): 333–5.
68
Hale, Law of Nature, 194.
69
See Harold J. Berman, ‘The Origins of Historical Jurisprudence: Coke, Selden, Hale’, Yale
Law Journal 103:7 (1994): 1708–9; also Chapter 7 on Selden in this volume. Unfortunately
Berman may not have been aware of Hale’s Of the Law of Nature.

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 184 David S. Sytsma

innumerable indifferent matters and determinations beyond the natural law,

provides the context for a historical jurisprudence, according to which the
historical evolution of customary laws (or common law) takes on moral author-
ity as the accumulated wisdom of generations. The permissive law’s formal
obligation arises from the will of the sovereign (God or magistrate). And behind
the material and formal aspects stands the natural law, which provides an
evaluative moral framework for historical development and sovereign authority.
If, according to Hale, the material content of human law derives its moral
legitimacy from its conformity to, or at least its non-contradiction of, the
natural law, what about cases of conflict between natural and human law?
Hale clearly recognises the possibility. He writes:
But in case of human Laws, this Obligation of an active obedience in the
Subject to the Laws of his Soveraign is under this limitation so far as the same
is not repugnant to the Law of God: For it is an Eternall Truth in the
contradiction of human Laws to the Law of God, it is better to obey God
than Man [Acts 5:29] thô the decission of such a contradiction requires great
Judgment and integrity in the Subject, for if he err in his Judgment his
disobedience is at his perill.70

Hale elsewhere elaborates that ‘since the duty we owe to God as the Supream
Lord of all things is greater and prior to the duty we owe, or can owe to human
Government’, there is tacitly implied in all relations between rulers and
subjects the condition that this obedience does not violate the allegiance
owed to God. Thus, ‘a Man is not bound to offend God by the active obeying
of the Comands or Laws of Men’.71
Having recognised the necessity of disobeying unjust human laws, Hale
proceeds to outline a theory of passive resistance. Hale reasons that even when
a human law contradicts a natural law, this does not negate that other natural
law that faith must be kept (fides est servanda), which is the basis of human
society and government. Therefore even while refusing to obey an unjust law,
subjects ought to yield to any suffering that results. In essence, Hale argues that
while a conflict between human and natural law nullifies the obligation to
obey such a law, it does not nullify the authority of the sovereign to punish.72
Hale’s discussion of the relation of natural law to positive law in Law of
Nature is not only of interest in itself. It is also important as a framework for
understanding his historically influential published works. When one reads Law
of Nature beside Hale’s famous treatise of criminal law, Historia placitorum
coronae (1736), one is impressed by conceptual parallels to such an extent that it
is difficult not to conclude that Historia presumes concepts more fully elabo-
rated in Law of Nature. For example, the opening page of Historia states that,

70 71 72
Hale, Law of Nature, 31. Ibid., 105. Ibid., 105–6.

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 Matthew Hale as Theologian and Natural Law Theorist 185

while offences are prohibited by the law of nature, particular punishments are
determined by positive laws.73 The difference between natural and positive law
thus stated presumes the framework of permissive law from Law of Nature
discussed earlier. Again, in the Historia the theory of exemptions to general
punishments (e.g. infancy, dementia) is based on a theory of the capacities of
intellect and will as necessary for moral culpability. The nature of these faculties
in relation to moral action is explained at greater length in Law of Nature.74
In the Historia, Hale also appeals to an understanding of natural law when he
permits killing in self-defence but regards suicide as prohibited by natural law
on the basis that human dominion is not absolute but derived from God. Both
self-defence and the nature of dominion are discussed in Law of Nature.75
As these examples from Hale’s Historia illustrate, Law of Nature forms an
important context for understanding his larger legal corpus.

CONCLUSION

Sir Matthew Hale is famous as a jurist. Yet he also deserves recognition as

a theologian in his own right who earned the respect of famous contemporary
theologians – notably Richard Baxter and Gilbert Burnet – for his theological
and philosophical acumen. Hale’s early Puritan education strongly shaped his
writing for the first fifty years of his life, after which he altered his theology in
a more Latitudinarian and Arminian direction on soteriological points. But
even during this later period when he rose to the highest ranks of the English
judiciary, he never completely abandoned the habits of life and mind from his
early Puritanism. The abundance of Hale’s theological manuscripts exhibits
a fertile theological mind intent not only on private theological meditation,
but also on the integration of Christian faith with his vocation as a judge and
with his speculation as a natural law theorist. His treatise Of the Law of Nature,
drafted just prior to Samuel Pufendorf’s De jure naturae et gentium (1672), is
a testament to the importance of natural law to English common lawyers. Not
too long ago many historians of common law assumed, as Roscoe Pound
remarked, that ‘English lawyers have never had much concern with philoso-
phy and natural law found little place in their books’.76 The very existence of
Hale’s Law of Nature constitutes a vivid illustration to the contrary.

73
Hale, Historia, 1:1. 74 Ibid., 1:14–15. See also Hale, Law of Nature, 9–12.
75
Ibid., 1:51, 411–12. See also Hale, Law of Nature, 14, 77, 88, 93.
76
Roscoe Pound, The Development of Constitutional Guarantees of Liberty (New Haven: Yale
University Press, 1957), 74, as cited and refuted in Richard H. Helmholz, ‘Natural Law and
Human Rights in English Law: From Bracton to Blackstone’, Ave Maria Law Review 3:1
(2005): 3. See also Richard H. Helmholz, Natural Law in Court: A History of Legal Theory in
Practice (Cambridge, MA: Harvard University Press, 2015).

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 Portrait of William Murray (1705–93), 1st Earl of Mansfield, Copley,
John Singleton (1738–1815) / National Portrait Gallery, London,
UK / Bridgeman Images

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