In his recently leaked draft majority opinion overturning Roe v. Wade, Supreme Court Justice Samuel A. Alito Jr. presents what he sees as his most convincing arguments for permitting legislatures to ban abortion. So what is the best Alito can do? One of his prominent strategies is to repeatedly quote and discuss someone he describes as a “great” and “eminent” legal authority, Sir Matthew Hale.
Most Americans have probably never heard of Hale, an English judge and lawyer who lived from 1609 to 1676. Hale was on the bench so long ago that his judgeship included presiding over a witchcraft trial where he sentenced two “witches” to death.
Nonetheless, we are still living in the world that Hale helped create. And as that witchcraft trial suggests, Hale’s influence has not been a “great” development if you believe women have equal humanity with men.
Hale is best known for his “History of the Pleas of the Crown,” a treatise published posthumously in 1736 that became wildly popular with judges and lawyers in England and America. In my years studying women’s legal history, I have read hundreds of American judicial opinions quoting Hale’s treatise.
Hale was not writing for women, who were excluded from the legal profession and judiciary. But he had much to say about women. For example, his pronouncements on rape were bedrocks of American law for generations, and their influence persists.
Hale believed that authorities should distrust women who reported having been raped. In his mind, rape was “an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Judges and lawyers endlessly quoted Hale’s canard well into the second half of the 20th century. Echoes of Hale’s suspicion of women still reverberate in American law and culture, helping rapists avoid punishment.
Hale also wrote what became the most frequently cited defense of the marital rape exemption, the doctrine that shielded a husband from prosecution if he raped his wife. Hale explained that a woman’s agreement to marry meant that she had placed her body under her husband’s permanent dominion. In Hale’s words: “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 up herself in this kind unto her husband, which she cannot retract.”