Ken Armstrong is a ProPublica reporter who co-authored “Unbelievable,” a book about a young woman coming out of the foster care system who reported a rape and then recanted her story. The book was later made into an excellent Netflix series.
Anyhoo, Mr. Armstrong read the leaked Alito opinion, noticed a familiar name in a citation and provided the backstory in a long tweet thread. It starts here:
In Justice Alito’s draft opinion reversing Roe, he writes about “an unbroken tradition of prohibiting abortion on pain of criminal punishment,” up until Roe in 1973.
He cites, as historical authority, Sir Matthew Hale.
Let me tell you about Hale & his views toward women.
— Ken Armstrong (@bykenarmstrong) May 4, 2022
The rest of the thread is detwitterized below, save for a couple of images:
2/ The Alito draft says Hale “described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision.’”
3/ Hale became Lord Chief Justice of England in 1671. In his views of women, he was not a forward-thinking fellow — *even* by the abysmally low standards of his era.
4/ To Hale, English gentlewomen were “the ruin of families.” Young women were a particular source of despair. They “learn to be bold,” he complained, and “talk loud.”
5/ I researched Hale while writing, with @txtianmiller, the book “Unbelievable.” The book was an extension of a story we wrote for
@propublica and @MarshallProj called “An Unbelievable Story of Rape.”
6/ Hale believed that for women, it was easy to accuse a man of rape. He believed that for men, such accusations were hard to defend, even if innocent. He advised that jurors be warned — explicitly, and at length — about the threat of the false accuser.
7/ He came up with quite the list of factors for jurors to weigh. Jurors, he wrote, should consider: Is the woman claiming rape of “good fame” — or “evil fame?” Did she cry out? Try to flee? Make immediate complaint afterward? Does she stand supported by others?
8/ Hale’s words became a standard feature of criminal trials in the U.S.
As long as 300 years after Hale’s death in 1676, many an American jury would be cautioned with what courts called the “Hale Warning”: an instruction to be especially wary of false accusations of rape.
9/ But that wasn’t Hale’s only legacy.
In 1662, at Bury St. Edmunds, Hale presided at the trial of two women accused of witchcraft. Hale instructed the jury that witches were real, saying Scripture affirmed as much.
10/ The jury convicted Amy Denny and Rose Cullender, after which Hale sentenced both women to hang.
Thirty years later, Hale’s handling of this trial, preserved in written record, served as model in Salem, Massachusetts, in the infamous witch trials of 1692.
11/ Hale is known for his legal treatises. But just as revealing is a letter he wrote to his granddaughters, dispensing individually tailored advice.
Granddaughter Mary, he wrote, needed to “govern the greatness of her spirit,” lest she become “proud, imperious and revengeful.”
12/ Granddaughter Frances could make a good housewife, Hale wrote, provided she be “kept in some awe, especially in relation to lying and deceiving.”
13/ As for granddaughter Ann, Hale perceived a “soft nature,” and therefore forbade plays, ballads or melancholic books, “for they will make too deep an impression upon her mind.”
14/ This letter was 182 pages long. When it came to advice, Sir Matthew Hale was full of it.
15/ Young women, Hale wrote, “make it their business to paint or patch their faces, to curl their locks, and to find out the newest and costliest of fashions.” …
16/ “If they rise in the morning before ten of the clock, the morning is spent between the comb, and the glass, and the box of patches; though they know not how to make provision for it themselves, they must have choice diet provided for them…”
17/ The letter reveals a man about as cheerful as his portrait suggests.
Wrote Hale: “The whole constitution of the people of this kingdom is corrupted into debauchery, drunkenness, gluttony, whoring, gaming, profuseness, and the most foolish, sottish prodigality imaginable.”
Sir Matthew Hale was a dour, arrogant, joyless and cruel prick. That makes him a fitting model for Justice Alito, both in personal character and judicial philosophy. Good to know.