Book Excerpt: 'America on Trial'

In reading accounts of the witchcraft trials of three centuries ago, a modern-day lawyer's mind naturally turns to the roles played by the seventeenth-century lawyers, prosecutors, judges, and defense attorneys — and how they used the forms of the law to perpetrate such injustice. One courtroom observer criticized the magistrates' contributions to the increasing hysteria in Salem: "The chief Judge is very zealous in these proceedings, and says, he is very clear to all that hath as yet been acted by this Court, and, as far as ever I could perceive, is very impatient in hearing any thing that looks the other way."24 (I've certainly encountered judges like that!) Indeed, on several occasions, the Salem magistrates dispensed even with any pretense of impartiality. During one trial in May 1692, the accused said that she felt faint, and she asked the court if she might lean against her husband. "She had strength enough to torment those persons," the magistrate replied, "and she should have strength enough to stand."25 In his play and motion picture The Crucible, Arthur Miller apparently intended his audience to think about the McCarthy prosecutions of contemporary "witches" and those who refused to testify against them. The Crucible certainly made me think, as a young man interested in the law, about the relationship between legal procedures and justice. The descriptions of the legal proceedings by which citizens charged with witchcraft were tried make numerous references to justices, judges, and magistrates. There are prosecutors as well, though the roles of magistrate and prosecutor often seem to be merged. The Salem magistrates viewed themselves as inquisitors eliciting confessions and repentance, rather than interpreters of a body of law.26 Deodat Lawson, a courtroom observer, recounted an episode from the proceedings against Martha Corey: "On Monday the 21st of March, the Magistrates of Salem appointed to come to Examination of Goodow C. And about twelve of the Clock, they went into the Meeting-House, which was thronged with Spectators …The Worshipful Mr. Hathorne [the magistrate] asked her, Why she Afflicted those Children? She said, she did not Afflict them. He asked her, who did then? She said, 'I do not know.'"27

As Justice Hawthorne vigorously pursued a confession, Corey was confronted with the live testimony of some ten "afflicted persons," including three young girls. With the interaction among Corey and her accusers, the proceedings grew chaotic. Lawson "observed several times, that if she did but bite her Under lip in the time of Examination the persons afflicted were bitten on their armes and wrists and produced the Marks before the Magistrates, Ministers and others."28 One accuser "complained of grievous torment in her Bowels as if they were torn out," and hit Corey on the head with a shoe.29 Corey still did not confess, but she was convicted and hanged, along with six other persons, in September 1692. There are few references to defense attorneys, certainly not in the way we have come to know them over the past two centuries. It is clear that the principal legal officers in these notorious proceedings are the "honorable" and "distinguished" judges who conducted the trials, rendered the verdicts (sometimes with the assistance of a special jury), and imposed the death sentences.

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