The Legal “Traditions” Alito Would Turn Into False Idols

Alito’s draft heavily references English legal precedent, including that of famed jurist Sir Matthew Hale who, it should be noted, had at least two women executed for witchcraft and wrote a treatise supporting marital rape pic.twitter.com/YijPlbkcq3

— emily bell (@emilybell) May 3, 2022

Noted jurists, legitimizing the abuse of women since 1736…

— emily bell (@emilybell) May 3, 2022

Columbia Journalism School professor Emily Bell cited an excerpt from the opinion in which Alito mentions 17th century judge Sir Matthew Hale as he sought to make the case that justices misinterpreted history in their Roe v Wade decision.

"Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a 'great crime' and a 'great misprision..." the decision states.

While many anti-abortion activists debate "personhood," most seem to agree that a woman shouldn't be forced to carry a dead fetus that could ultimately kill her. Miscarriages are exceedingly common, and happen in up to an estimated 30 percent of all pregnancies.

Hale also ensured women were executed for being witches.

"A 12 mo. sixpenny pamphlet published by the well known E. Curll 'at the Dial and Bible against St. Dunstan's Church in Fleet Street' was issued in 1712 under the title Witchcraft Farther Display'd, along with an account of Jane Wenham since her condemnation and also an account of the trials in 1661 at Cork of Florence Newton; this contains an abstract of the trial before Sir Matthew Hale in 1664 at Bury St. Edmonds, Suffolk, of Amy Duny and Rose Cullender, who were both convicted, March 10, and both were hanged, March 17, 1664, wholly unrepentant and denying the crime," recalled the Spring 1926 issue of the Journal of Criminal Law and Criminology.

The two women were convicted of "bewitching Elizabeth, Anne and William Durent, Jane Bocking, Susan Chandler, Elizabeth and Deborah Pacey (or Pacy)," the Journal recalled. A colic baby was left with Amy Duny one night crying desperately for relief and Duny let it suck on something. The Journal explained that in the early 1900s a mother would use "castor oil or its equivalent." She took the baby to a doctor known for curing "bewitched children." 

"That wise man advised her to hang the child's blanket all day in the chimney corner and at night wrap the child in it, and if she saw anything in it not to be afraid, but to throw it in the fire. She did as directed, a great toad fell out of the blanket and ran about the floor (toads seem to have run in those days)," said the century-old journal. "A young man (not named or produced as a witness) catch'd this Toad and held it in the Fire with a Pair of Tongs: immediately it made a great Noise, to which succeeded a Flash like Gunpowder, followed by a Report as great as that of a Pistol; and after this, the Toad was no more seen."

This "evidence" was used to not only convict one woman but hang her for witchcraft. "It obtained credence from men of the deservedly high standing of Hale..."

There was then an accusation that Duny and Rose Cullender appeared as a vision to two children who suddenly couldn't open their mouths. The children proclaimed "There stands Amy Duny," "There stands Rose Cullender!"

"The Fits were not alike," described the accusations. "Sometimes they were lame on the Right Side, sometimes on the Left: sometimes so sore that they could not bear to be touch'd; sometimes perfectly well in other Respects but they could not hear; at other times they could not see; sometimes they lost their speech for one, two and once eight days together."

This was used to justify that Cullender was a witch and she too was hanged.

"Convicted on Thursday, March 13, 1665, they were executed on Monday, March 17, Sir Matthew Hale being so satisfied with the verdict, that he refused to grant a reprieve," the Journal recalled.

Hale also has a history of supporting marital rape in his cases. The American Bar Association Journal dated September 1980 addressed the issue of spousal rape throughout the history of jurisprudence. Hale devised the "consent theory" in the 17th century stating that a husband can't be guilty of a rape.

"But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up to this kind unto her husband which she cannot retract," wrote Hale.

Hale's justification for spousal rape was used as recently as 1986, when in R v. Roberts, the Court of Appeal held that "consent had, on the facts, been terminated where there was a formal deed of separation, even though this lacked both a non-cohabitation clause and a non-molestation clause."

Maybe this is why the draft opinion was leaked? Because the conservatives on the bench especially liked this history lesson?

A reminder that the roots of the common law are “legislating from the bench.”  “Originalism” ain’t all that original.