Looking Backwardly

One of those doctrinal distinctions that 1L Criminal Law courses often overlook: What exactly is the difference between Witchcraft in the First Degree and Witchcraft in the Second Degree? (From Hale's Pleas of the Crown, 1682). https://t.co/QfFWNBeZ9f pic.twitter.com/TJE0jHurh0

— Orin Kerr (@OrinKerr) January 17, 2022

Glories of the common law, etc.

— Orin Kerr (@OrinKerr) January 17, 2022

Today we're like, what kind of mass hysteria was needed to believe in witches? Back then, they were like, see Matthew Hale, Pleas of the Crown 6-8.

— Orin Kerr (@OrinKerr) January 17, 2022

A couple of comments:

A)  That the common law dealt in the criminal prosecution of witchcraft is hardly surprising. But note that by the 17th century the common law was so complex it needed to be written down, and not just in the case law. I don’t mean that’s a new development in the 17th century. I do mean to point out the complexity of the common law.

B) And that the Salem Witch trials were conducted by the church, not the Crown. In fact, by the Puritans, people who had defied the Crown, won and lost control of the government, and were in America because they were not welcome in Jollye Olde England. What Cotton Mather knew of English common law was probably equivalent to people on Twitter who still think Brandenburg v Ohio (shouting “Fire!” in a crowded theater) is still the law; or ever was. I’m quite sure they weren’t concerned with the finer points of Hale’s commentary on the common law 10 years later across the ocean in the wilderness of Massachusetts. It’s unlikely there was even a copy of the book on the continent at the time.

The Salem Witch trials were about isolation and power. The village of Salem was isolated from the rule of law in England.The people accused of witchcraft were usually single women (widows, or unmarried) who had property somebody wanted. Mass hysteria had nothing to do with it. I suspect that false idea is rooted in Miller’s play, the same reason we think the Scopes trial was about science v fundamentalism (again, because of a play). It was, in fact, just a show trial to generate publicity for the city. The defendant volunteered for the case. He was never in any legal danger. The people in Salem faced grave danger; but the actions against them were cold-blooded and ruthless, not the product of terror.

“The first thing we do, let’s kill all the lawyers.” There were no lawyers in Salem. Hysteria didn’t do the job. Ruthlessness and the absence of the rule of law did. I’ve seen the same thing happen (not to me, to my client, my then-pastor) when the church follows its own inadequate rules rather than the rule of law, the due process of law. There was no hysteria involved, but the process was no fairer than the trials in Salem. And it was just as vicious.

The more things change, the more they remain the same. And the rule of law, whether we now find the subject of the laws absurd or not, is still preferable to no rule and only power.