From Free Life, Issue 23, August 1995
ISSN: 0260 5112

If Sir Matthew Hale (1609-76) is known for anything today it is for his comment on the question of rape in marriage:

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 herself up in this kind unto her husband which, she cannot retract.

This passage occurs in Hale's History of the Pleas of the Crown, written over three centuries ago. Such was Hale's standing as a legal authority that it was only as recently as 1991 in the House of Lords decision in the celebrated case known as R v R that his judgment was held to be wrong, largely on the basis that Hale's approach was out of keeping with modern attitudes.

Whatever our individual views on the specific question of "marital rape", this decision by the House of Lords represents a radical example of judge-made law. This raises the age-old fundamental question of whether judges are entitled to make law at all or whether they are not authorised to do more than declare what the law is. In practice, of course, the borderline between law-making and a purely declaratory function is a narrow one, and it not always easy to determine on which side of the divide a particular decision falls.

Nevertheless, there can be little doubt that the rejection of Hale's dictum on marital rape has changed the law. This change could presumably be justified by arguments drawn from the concept of equality between the sexes, though no such arguments appear to have been considered or advanced by the House of Lords in the R v R case.

Putting aside the question of whether we as individuals think the law ought to recognise the concept of rape within marriage, it is worth looking at the process of thought by which the present law lords came to their conclusion on it by contrast to the way Hale reached his conclusion on it. The real difference between the two approaches is that, while the modern law lords treated the question of marital rape in isolation from everything else, Hale dealt with it as part of the law of contract, marriage being of course a contract between husband and wife.

This is typical of Hale's approach to the law in general. To Matthew Hale the common law of England was not made up of a whole lot of isolated decisions but was a unitary logical system based on a small number of basic principles, which it was the duty of the courts as the judiciary and also of the executive and legislative branches of government to declare.

Matthew Hale was not alone among the lawyers and parliamentarians of the mid-seventeenth century in seeing the common law and the constitution as immutable. This view of the law was actually to be found among royalists and anti-royalists alike.

After the victory of Parliament over King Charles I and the his execution in 1649 a new Great Seal was introduced bearing the words "First Year of Liberty Restored". In other words, the claim was not to have thrown off the shackles of centuries of monarchical rule but to have "restored" the ancient constitution which had been dishonoured by the late King's conduct.

In fact, after Charles I's execution on the 30th January 1649 the monarchy was not formally abolished. The wording of the relevant statute, passed about 6 weeks after the king's death, is revealing. Despite its title, an "Act for the abolishing the Kingly Office", the statute does not actually abolish the monarchy but merely enacts "that the office of a king in this nation shall not henceforth reside in, or be exercised by, any one single person." In other words, while monarchy is seen as an integral part of the immutable constitution, it is placed in commission, so to speak.

In May 1649 a more radical law was enacted which first formally labelled the state a "Commonwealth". But even this statute stops short of actually abolishing the monarchy but merely declares that the people of England "shall from henceforth be governed as a Commonwealth and free-state by the supreme authority of this nation, the representatives of the people in Parliament, and by such as they shall appoint and constitute as officers and ministers under them for the good of the people, and that without any king or House of Lords."

To some extent, of course, this was a legal fiction. No state can exist indefinitely without any change in the law. The question is: to whom is the power and authority to change the law, i.e. to make law, entrusted? The unequivocal answer that the English Revolution gave to this question was: Parliament, or, after the Restoration, King-in-Parliament. But certainly not the judges.

Matthew Hale was a judge - and not only a judge but also Chief Exchequer Baron and then Lord Chief Justice of King's Bench under Charles II. And, though he lived in a turbulent period of English history when rival claims to power were advanced on all hands, yet he never tried to arrogate legislative power to the judges. He even took the view, contrary to the majority of judges (and of constitutional practice both then and now), that judges could be sacked at will by the King!

Alan Cromartie's book affords some insight into the mind of this great jurist. Unfortunately, the book spends an undue amount of space on religion and philosophy, areas in which Hale was not a pre-eminent thinker by any means. It therefore falls between several stools. It is not a biography, although it has a brief "summary life" at the beginning. Nor is it a "life and times" book. Its greatest strength is in portraying Hale's thoughts, but even here it is tantalisingly brief. The emphasis on the writings of such figures as Coke and Selden, who influenced Hale, is such that the tail almost begins to wag the dog. What one reader at least was particularly anxious to find (in vain, alas!) was an in-depth analysis of Hale's own legal writings and, perhaps more than anything else, his judgments.

Michael Arnheim