Tuesday, December 23, 2008


I just finished “The Salem Witchcraft Trials: A Legal History”, by the University of Georgia professor Peter Charles Hoffer, published – interestingly – by the University Press of Kansas in 1997.

I have on occasion noted the similarity in dynamics between the witchcraft trials and certain modern American legal ‘reforms’ of the past few decades – those related to domestic violence and ‘sex offenses’ being only the most notorious.

I have also noted the dangerous revolutionary tendency to see the Law as being ‘at war’, and that its ‘truth’ is somewhat fungible, the integrity of its means and processes being at the service of whatever ‘end’ is politically useful. And in that regard, I have noted in passing the Rawlsian maxims that no law (let alone Law) should be allowed to stand in the way of (his concept of) ‘justice’ and ‘rights’, and that courts, under the best-and-brightest guidance of (Rawlsian) academics, should without further ado demonstrate their superior wisdom by vigorously inserting themselves into matters far too important to be left to the lumpen citizenry and their too-often lumpen elected representatives.

At some point, I have to spend more time with the thought that Rawls created a generation of ‘whiz kids’ who have done for America domestically what JFK’s and LBJ’s ‘whiz kids’ did for the country with their long and enthusiastic support for the disastrous adventure in Vietnam. When you come right down to it, I’d say that Rawls – his minions still active in academia, the law and the law schools, and even on the Bench in state and federal courts – should be far more feared than Robert McNamara, the brothers Bundy, Rostow and the rest of that gang.

While even the most prudent citizen often feels incompetent (and not inappropriately so) to make a judgment as to matters historical, very few citizens feel similarly about matters that have been draped in the sacred and mysterious veils of ‘philosophy’ , which – through a collective trahison that still has not received its condign deserts – was precisely what was done for the Rawlsian mélange.

Whereby We are most grievously bethumpt even unto the present day.

But that’s for another Post. On to this book, which has prompted a few thoughts.

Hoffer notes that the Salem trials were comprised of both ‘modern’ and ‘premodern’ legal elements. By ‘modern’, he meant certain procedures such as juries and the government – as opposed, say, to the complainants – being in charge of the prosecution. “But”, he notes, “there were no lawyers for the defendants, and the ideal of a fair trial was overwhelmed by superstition and rumor”. Thus the ‘premodern’ legal elements.

Worse, “throughout [the proceedings], the Salem cases were dominated not by book law, that is, written rules scrupulously followed by professional officials of the court, but by folk beliefs shared by the judges, the witnesses, and even the accused”. The results of such infestations within the operating precincts of the legal amphitheatre are plain for all to see nowadays, and actually were clear to some hardy and insightful minds even as the trials were being conducted.

So much for Our self-indulgent tendency to hope that We will be judged as an ‘age’ that did the best according to its lights; there are always those who speak the truth in any age – but the age refuses to look where they are pointing.

Partly as a result of the frightening example of what can happen when an entire community actually stampedes in such a way as to break down its own legal principles, and the judges stampede as well, American justice learned from the blood that was shed by numerous women and men on the authority of Salem death-warrants and consequently instituted “highly technical rules of evidence”.

This was a clear example of vital progress being purchased at the price of lethal and bloody miscarriages of justice; miscarriages, that – unlike crimes themselves – were clearly recognized for what they were even before they brought forth their noxious fruits, and which might well have been prevented by the very citizenry and state authorities that held themselves sufficiently knowledgeable and mature to wield the solemn power of high justice.

But that didn’t happen. “It seemed the thing to do at the time” might be the defense of those who either participated significantly or who looked on and approved, or those who held their tongues for fear of being labeled a ‘witch’ themselves simply for trying to point out what was actually going on. But who in the dock at Nuremberg could not have attempted the same defense? As many of them did. Or tried to do.

The fatal legal step was the judicial decision to admit ‘spectral evidence’ – evidence that could not be seen by the jury as finder of fact or by the judge, or indeed by anybody else except the accusers (and of course by the alleged ‘witch’, whose assertion that s/he could not see it was considered to be merely demonic lying). This was not in 1692 a necessary outcome. By that time English law had developed somewhat beyond medieval practices and assumptions , progressing to a requirement for and a reliance on observable facts that could be considered by a jury.

But witchcraft cases constituted an unusual sort of ‘crime’: they were by definition un-see-able. Witches and witchery (male as well as female) operated on a level beyond the material world of perceptible actions. Less than 30 years before, in 1664 at Bury St. Edmunds, Chief Justice Hale had permitted spectral evidence in light of the gravity of the threat that witchcraft posed to the citizens and the realm.

So, given the gravity of the threat – the ‘emergency’, one might say – the fundamental anchor that grounded the trials in any semblance of palpable and provable reality, or truth, was pulled away, and by the very guardians of the law themselves.

Once that was done, “there was no way to limit credulity”, or incredibility, and “the door was opened to all manner of evidence”. And since spectral evidence was evidence that “only the victim” could see, the possibility for grievous legal mischief was dangerously enlarged.

Nor – the whole dynamic feeding on and off the fears of the citizenry and the judges – were any clearly illogical complications allowed to be noticed. So, for example, although the ‘specters’ which (only) the accuser/victims could allegedly see were by definition “sent by the devil”, who was universally acknowledged as a trickster and a deceiver, yet these specters – when they purportedly established the relationship of the accused witch to the demonic realm – were instantly and fully credited as irrefutable evidence of the accused’s guilt.

And why on earth would a witch – so given to secrecy and darkness – reveal him/herself by tormenting the accuser/victims spectrally at precisely the moment when accused, accuser(s), and judges were all present in the courtroom, in the bright light of day, specifically for the purpose of unmasking the suspected witch? Nobody in the room would venture to think up an answer to that.

In light of the ‘emergency’, that was not only thinking-too-much, but it was also liable to get you accused yourself.

But a few hardy souls, and not of low estate, saw and stood up.

After the special court erected by the governor to try the cases rapidly executed an elderly and disliked crone by the name of Bridget Bishop, in a manner so legally repugnant that one of the judges – Saltonstall – resigned from the court, a junior Boston minister – Samuel Willard – spoke out against the regression to medieval forms of proof, the suspiciously uniform and over-the-top behavior of the accusers, the absurd performance of a clearly demented ‘witness’, and the absence of even a modicum of due process (already established in English law).

Willard did not know at the time that the second most important minister in Boston – Cotton Mather, son of the even more renowned senior minister Increase Mather – had sent a secret letter to the judges prior to the trial approving their zeal and their practices; as has been seen in far too many instances since then, professionals and academics and ministers just cannot seem to resist the opportunity to get out on the field and be a real ‘player’ – and not by courageously speaking truth to the stampede, so to speak, but rather prostituting their authority and their education to the purpose of surfing the waves of public emotion for their own benefit and purposes. I’d like to place the name of Rawls in nomination.

Willard even took to his pulpit, to exhort his own parishioners to restrain their passions and consider matters carefully. As minister in the town of Groton 20 years before he had been confronted with a similar situation – a child accusing somebody of witchcraft – and by exercising restraint and urging his congregants to do the same, had prevented the type of stampede which now held the Salem townsfolk and the judges in a death-grip.

And in an act of very dubious legality, monstrously similar to the expropriation of Japanese-American property on the West Coast after Pearl Harbor, the court seized the personal goods of executed witches; an act (formally known as ‘escheat’) which, even at the time, was acknowledged as contrary to the spirit of English law as it was by then evolving.

In the second half of September, 1692, the court was stopped cold when one of the accused refused to ‘say his lines’. Eighty year-old Giles Corey, accused with his elderly wife of being witches, refused to plead, considering the entire matter incomprehensibly unreal. The court resorted to a medieval practice at that time no longer permitted in English law, and had him pressed beneath stones until he agreed to enter a plea. He chose to die instead, un-pled and un-convicted. Even more than those of the ‘witches’ who had behaved on the gallows with a becoming Christian self-possession, Corey’s recalcitrant death – and he having survived until 80 in the 17th century and in the New World! – was a sharp splash of water (blood, actually) that started to call the crowd to its senses.

With that, Samuel Willard, many of whose brother ministers from Boston had joined him in observing the Salem trials first-hand (while Cotton Mather remained in Boston, supporting the judges with theory and sermon, while refusing to see how matters stood ‘on the ground’), took pen in hand and wrote the pamphlet “Some Miscellany Observations”. There, he joins with the opinion of many English writers that “satisfactory proof of witchcraft was almost impossible to obtain”.

It is interesting to note that the conclusion drawn by that age was that if by the very nature of a situation, satisfactory evidence is impossible to obtain, then ‘court’ was not the solution to the problem. In Our own time, much affected by revolutionary zeal, the conclusion is that ‘the courts’ must be changed so as to be able to call something – anything necessary – ‘evidence’ and so deliver a decision that will justify a desired action. This does not seem to be progress.

Willard went on that “conviction by mere suspicion … is contrary to the mind of God”, and then goes further to say that “the more horrid the crime is, the more cautious we ought to be in making any guilty of it”.

At this point, even Increase Mather, who had stayed on the sidelines as his more impetuous son led the support for the trials, realized he would have to speak his mind, cognizant that as senior minister of the colony even the governor would listen carefully. Remarkably, in October 1692 he came forth with what was to be one of the most famous, and the earliest, American treatises on evidence and rules of evidence, entitled “Cases of Conscience”. While fully acknowledging that there was a Devil who reveled in the success of his witches, Increase also asserted forthrightly that “Christian charity and legal wisdom demanded close adherence to the rules of evidence in cases of witchcraft”.

Of course, you can’t nowadays use ‘Christian wisdom’, let alone ‘charity’ as the basis of any legal reasoning.

He went on to warn that reliance on medievalisms such as spectral evidence and trial by touch (eerily echoed in the current era’s ‘victim confrontation’ rituals) would only serve to “subvert this government and disband, yea ruine, Humane Society”. Which, for legal insight, is not only progress but – compared to the quality of legal insight nowadays as to the legal system’s subversion of its own evidentiary rules – constitutes a wisdom now lost in what must be construed as a massive and sustained professional regression.

The governor needed little prodding once he had read it. He stayed the executions of five persons already convicted, ordered the special court to disregard spectral evidence, and then on further consideration, disbanded the special court altogether. ‘Special’ courts apparently have a tendency to think that they are verrrry speshull indeed, neither needing to take the usual and classic precautions in adjudication nor to consider themselves erected for any purpose except the conviction of those accused of this or that ‘special’ crime.

The legislature met and outlawed spectral evidence, but authorized the witchcraft trials to continue, which they did in early 1693.

The first thing that the re-authorized court did was to order five convicted witches whose execution had been suspended because they had been pregnant at the time of their conviction, prepared for execution. It was a shrewd move, to re-establish their authority as judges and create another firewall against eventual prosecution themselves. The governor, already a little worried about how all of this hanging was going to look back in London, stayed the court’s order while he sought instructions from the Crown.

Desperate now, the original judges, especially their chief – William Stoughton – accused the governor of being soft on witchcraft, and – eerily reminiscent of the Army generals in the Vietnam era – Stoughton claimed that he was just on the verge of “clearing the land of witches” when the governor stopped him. Real men, apparently, kill witches first and ask questions later.

In such cases (or ‘battles’?) the law is simply the tool that the truly consummate professional macher prefer, being far less messy than a mob with pitchforks and flaming torches. How positively ‘Beltway’ a philosophy. How tasteful and ‘elite’ yet ‘manly’ – a decision for all seasons, one might say.

“Without the use of spectral evidence, the cases of all but three of the thirty-one brought before the court that January ended in acquittal.”

And word came from London and the governor quashed the convictions. In May, 1693, he stopped all the trials and sent anyone convicted home. It would take the next 20 years for the legislature to grant their petitions for redress and repudiate the trials utterly.

Cotton Mather (who had been quietly supporting Stoughton in the trials all along) continued to insist that “witches can take the form of specters and specters can hurt people”; he also insisted, though nobody doubted it, that the Devil existed (so perhaps to doubt Mather was to doubt the existence of the Devil … ?). He began then to focus only on his good intentions, and felt unfairly put upon when interlocutors started to stray into questions of fact and logic in the matter of his support of the trials.

Nor, it would seem, have We progressed very far beyond such poltroonish dodging of consequences, if the Great and General Beltway be any indicator.

The Salem villagers never managed to reconcile. There were powerful clans of families on either side of the trials, and indeed – typical of clan feuds – the clan from which the accusers mostly came from did not want to face the clan from which the majority of victims came from. The original minister, one Parris, who had helped get the whole fire going and had been loyally supported by the ‘accusing’ clan, refused to acknowledge any mistakes. He left town after a few years and went into business as a merchant.

The minister of the neighboring village of Beverly, one Hale, who watched the whole thing start but refused to try to put it out, wrote up his own thoughts which he surreptitiously left with a neighboring minister to be published after he’d died (and, so to speak, ‘gotten out of town’). He concluded that “false witness and natural causes were responsible for some of the prosecutions, as well as malice and ignorance among the accusers”. Since the ‘accusers’, in modern-day scripting, would be considered the ‘victims’, Hale was an insensitive minister as well as a cowardly one; ‘getting out of town’ can be no surprise, when you look at his track record. As for what modern-day legal parlance would make of the executed ‘witches’, We might be guided by Justice Scalia’s remark about persons wrongly convicted: “Waaaal, they probably did something else wrong anyway”. I’m not feelin’ the progress here.

William Stoughton, the fire-breathing judge, eventually replaced the governor, Phips, whom he had consistently tried to undermine in order to prevent himself from being considered a malfeasant hanging judge. He never apologized and never looked back, merely repeating that he thought “the Devil had come to Massachusetts and the witches were hell-bent on doing evil all around”. There is a town in Massachusetts named Stoughton now; I wonder if there will be a Cheney-ville in whatever state spawned that spawn of the unholy.

But there were no trials of the judges themselves. Right after Giles Corey died, they had quietly held a meeting and decided that they might indeed one day be held responsible for this whole thing. They gave their supportive preacher, Cotton Mather, a summary of the trials (he would be writing a history to ‘spin’ the events); and then they ‘lost’ the original trial records.

History is not only not dead; it is repeating itself. The trials were held in 1692, the book was written in 1997 – and yet it is all so contemporary, so 2008 – if I may.

Of course, it is the human species that is repeating itself. True to its nature. And true to its tendency to what was once conveniently and hardly inaccurately called ‘original sin’.

But We are much too modern and postmodern, have progressed way too far, to be burdened with such old and outmoded concepts. We are the age of Rawls, and ‘repressed memories’ that only the rememberer can access, and preventive wars based on ‘spectral evidence’, and high officials who spin and destroy records and claim that they can only be judged on their intentions although they will simultaneously assert that their actions were not ‘actionable’ in any event. But We are not to think that We might have lost ground; that We have regressed to a more primitive level of societal and even personal functioning.

Ask yourself: are We better off today than We were 316 years ago?

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