Hale Commission
Encyclopedia
Commonwealth of England
The Commonwealth of England was the republic which ruled first England, and then Ireland and Scotland from 1649 to 1660. Between 1653–1659 it was known as the Commonwealth of England, Scotland and Ireland...
on 30 January 1652 and led by Sir Matthew Hale
Matthew Hale (jurist)
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...
to investigate law reform. Consisting of eight lawyers and thirteen laymen, the Commission met approximately three times a week and proposed changes as radical (at the time) as reducing the use of the death penalty, allowing witnesses, legal aid and lawyers for defendants in criminal cases and creating County Courts and a Court of Appeal for criminal cases. Though the Commission was unsuccessful at passing any of its measures under the Rump Parliament
Rump Parliament
The Rump Parliament is the name of the English Parliament after Colonel Pride purged the Long Parliament on 6 December 1648 of those members hostile to the Grandees' intention to try King Charles I for high treason....
, two of its measures were put into law by the subsequent Barebone's Parliament, and, by the middle of the 20th century, most of the others were as well. Debate has occurred over the effectiveness and strife within the Commission between its more moderate and radical members; the general conclusion is that with the sheer volume of work produced and the vast proportion of moderate to radical members, it is unlikely such strife existed.
Background and establishment
The loss of Charles I of EnglandCharles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
in the English Civil War
English Civil War
The English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...
led to the establishment of the Commonwealth of England
Commonwealth of England
The Commonwealth of England was the republic which ruled first England, and then Ireland and Scotland from 1649 to 1660. Between 1653–1659 it was known as the Commonwealth of England, Scotland and Ireland...
on 19 May 1649. During the rule of both the Commonwealth and the succeeding Protectorate
The Protectorate
In British history, the Protectorate was the period 1653–1659 during which the Commonwealth of England was governed by a Lord Protector.-Background:...
, there was considerable desire for law reform. Many judges and lawyers were corrupt, and criminal law followed no real reason or philosophy. Any felony was punishable by death, proceedings were in a form of Norman French, and judges regularly imprisoned jurors for reaching a verdict they disagreed with. Cromwell and the Rump Parliament
Rump Parliament
The Rump Parliament is the name of the English Parliament after Colonel Pride purged the Long Parliament on 6 December 1648 of those members hostile to the Grandees' intention to try King Charles I for high treason....
aimed to establish a "new society", which included reforming the law; to that end, on 30 January 1652 Sir Matthew Hale
Matthew Hale (jurist)
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...
was appointed chairman of a commission to investigate law reform, which soon became known as the Hale Commission. The Commission's official remit was defined by the Commons; "taking into consideration what inconveniences there are in the law; and how the mischiefs which grow from delays, the chargeableness and irregularities in the proceedings in the law may be prevented, and the speediest way to reform the same, and to present their opinions to such committee as the Parliament shall appoint".
The Commission consisted of eight lawyers and thirteen laymen, appointed by the Rump Parliament on 26 December 1651, and sat from 23 January 1652 approximately three times a week in the chamber of the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
. No Members of Parliament were allowed to sit. In addition to Hale, members included John Desborough
John Desborough
John Desborough was an English soldier and politician who supported the parliamentary cause during the English Civil War.-Life:He was the son of James Desborough of Eltisley, Cambridgeshire, and of Elizabeth Hatley of Over in the same county, was baptized on 13 November 1608. He was educated for...
, John Rushworth
John Rushworth
John Rushworth , English historian, was born at Acklington Park in the parish of Warkworth, Northumberland, England. He compiled a series of works called Historical Collections , concerning the period of history covering the English Civil Wars throughout the 17th century.-Background:John Rushworth...
, Hugh Peters
Hugh Peters
Hugh Peters [or Peter] was an English preacher.-Early life:He was baptized on 29 June 1598 in Fowey, and was educated at Trinity College, Cambridge....
, Anthony Cooper
Anthony Ashley Cooper, 1st Earl of Shaftesbury
Anthony Ashley Cooper, 1st Earl of Shaftesbury PC , known as Anthony Ashley Cooper from 1621 to 1631, as Sir Anthony Ashley Cooper, 2nd Baronet from 1631 to 1661, and as The Lord Ashley from 1661 to 1672, was a prominent English politician during the Interregnum and during the reign of King Charles...
, John Sadler, John Fountaine
John Fountaine
John Fountaine was commissioner of the great seal of England from 1659-60. He was imprisoned for refusing to pay the parliament's war tax in 1642, during the First English Civil War....
, William Steele, Henry Blount
Henry Blount
Sir Henry Blount was a 17th century English landowner, traveller and author.-Life:He was the third son of Sir Thomas Pope Blount of Blount's Hall, Staffordshire and Tyttenhanger, Hertfordshire and was educated at St Albans Free School and Trinity College, Oxford...
, William Roberts
Sir William Roberts, 1st Baronet
Sir William Roberts, 1st Baronet , of Willesden in Middlesex, was an English landowner and politician.The son of Sir William Roberts, a Member of Parliament and of Cromwell's House of Peers during the English Commonwealth, Roberts was created a baronet on 4 October 1661...
, Josiah Bemers, Samuel Moyer
Samuel Moyer
Samuel Moyer was an English merchant and politician who sat in the House of Commons in 1653. He was a strong republican and supporter of the Parliamentary cause in the English Civil War....
and Matthew Thomlinson
Matthew Thomlinson
Matthew Thomlinson was an English soldier who fought for Parliament in the English Civil War and regicide of Charles I.Thomlinson was the second son of John Thomlinson of York, England, and his wife Eleanor, daughter of Matthew Dodsworth. A colonel of horse in the New Model Army, he was one of...
.
Recommendations
The Commission recommended various changes. On the criminal law side, they supported reducing the use of the death penalty, although "wilful murderers" were still to be executed, and the abduction of a child under 16 was to be considered a capital crime. They also suggested allowing prisoners access to lawyers in any case where the prosecution was permitted representation and allowing witnesses for the defence to give evidence under oath. Legal aid was also considered, although the rejection of a case where legal aid was given would result in the defendant being sent to a workhouse for a month and whipped. The abolition of peine forte et dure as a way to avoid the forfeiture of land was also proposed.For legal system reform, the Commission suggested the creation of county courts led by the Westminster judges with jurisdiction over civil actions, and small claims courts for amounts under £4 to be manned by commissioners, approved by Justices of the Peace. They also supported the creation of a Court of Appeal consisting of laymen chosen by Parliament, the formation of a land registry and a permanent law commission. Against Hale's wishes, the Commission called for the abolition of benefit of clergy
Benefit of clergy
In English law, the benefit of clergy was originally a provision by which clergymen could claim that they were outside the jurisdiction of the secular courts and be tried instead in an ecclesiastical court under canon law...
, and the acquittal of those charged with justified homicide. The Commission also suggested that debtors should no longer be imprisoned, and attorneys should be educated at an Inn of Court and not allowed to practise until they were admitted as members.
Disestablishment
None of the Commission's recommendations ever made it into law under the Rump Parliament, though the Commission did produce 16 bills. Several were read in the House of Commons, and the remainder given to the Parliamentary Law Committee in July 1652 following the Committee's dissolution on 23 July. The Rump Parliament's successor, the Barebone's Parliament, brought two of the Commission's suggestions (to abolish fines for original writsWrit
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
and to develop procedures for civil marriages) into force through statutes. Most of the Commission's suggestions were, at some point, followed. In 1837 the use of the death penalty was curtailed, and it was finally abolished in 1969. From 1702 onwards, witnesses were allowed for the defence, and the Prisoners' Counsel Act 1836 allowed legal representation for the defendants. The use of peine forte et dure was abolished in 1741, and the benefit of clergy in 1827. A permanent Law Commission was finally established with the Law Commissions Act 1965
Law Commissions Act 1965
The Law Commissions Act 1965 was an Act which created the Law Commission of England and Wales and the Scottish Law Commission, tasked with reviewing English and Scots law respectively.-Background:...
. County Courts were finally established in 1846, and a Court of Criminal Appeal
Court of Criminal Appeal
The Court of Criminal Appeal is the name of existing courts of Scotland and Ireland, and an historic court in England and Wales.- Ireland :See Court of Criminal Appeal ...
in 1907.
Academic debate over the Commission's value has been strong. On the one hand, William Holdsworth wrote that the Commission was riven by strife between its lawyerly members and those of a more radical nature, and that its proposals were sometimes extreme. Other academics argued that the reform scheme was of great merit, and Hostettler, writes that "there is no evidence to confirm the belief of Sir William Holdsworth that the lawyers had a difficult time with the laymen". Mary Cotterell, writing in the English Historical Review, notes that 13 of the 21 members were certainly not radicals, although Moyer and Bemers, Blount and Peters certainly were. The lawyers, all moderates, nevertheless dominated the discussions. Debate was on a highly technical level which prevented many of the laymen contributing much, although six of them had been educated at the Inns of Court
Inns of Court
The Inns of Court in London are the professional associations for barristers in England and Wales. All such barristers must belong to one such association. They have supervisory and disciplinary functions over their members. The Inns also provide libraries, dining facilities and professional...
. The large number of meetings and sheer volume of work produced also suggests that there was little dissent and argument. John Hostettler, in his biography of Hale, has suggested that if the measures had been put into law immediately, "we would have been honouring such pioneers for their farsightedness in enhancing our legal system and the concept of justice".