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The Law

During the early eighteenth century, a few years after the last witch trials had taken place in America, several states adopted a raft of English statutes: amongst them was the 1604 Act against Witchcraft and Conjuration. This was the law under which hundreds of suspected witches were arrested in seventeenth- century England. So at a time when prosecutions for witchcraft were ceasing on both sides of the pond, the 1604 Act, with its death penalty for invoking evil spirits, became law in South Carolina in 1712 and Pennsylvania in 1718. In 1728 the Rhode Island legislators enacted ‘That Witchcraft is, and shall be Felony; and whosoever shall be lawfully convicted thereof, shall suffer the Pains of Death’.1 While these may seem reactionary impulses, we must bear in mind that witch trials continued in parts of central Europe into the mid-eighteenth century.

The adoption of the 1604 Act cannot simply be dismissed as an oversight by otherwise enlightened American legislatures. After all, the South Carolina Chief Justice Nicholas Trott (1663-1740), who was bom and educated in England, believed in witchcraft and considered it a crime. ‘We live in an Age of Atheism and Infidelity,’ he complained in March 1706, ‘and some Persons that are no great Friends to Religion, have made it their Business to decry all Stories of Apparitions and of Witches’. His opinions failed to convince a grand jury, however, to proceed with the prosecution of a suspected witch whom Trott considered guilty.2 Trott was a staunch Anglican and his linking of atheism with scepticism regarding witchcraft was a common refrain in Anglican polemic at a time when the Church felt threatened by the growing influence of religious nonconformity and rationalist tendencies within the Church itself. Yet he was not uncritical about the standard of evidence required to try accused witches, questioning the legal basis of the Salem trials and rejecting the spectral evidence that played such a part in the prosecutions.

Back in Britain, the 1604 law against witchcraft was finally repealed in 1736 and a new statute was enacted that enshrined the prevailing legal view that witchcraft was a fraudulent practice rather than a real satanic activity.3 So, from then on, if any person pretend to exercise or use any kind of Witchcraft, Sorcery, Inchantment, or Conjuration, or undertake to tell Fortunes, or pretend, from his or her Skill or Knowledge in any occult or crafty Science, to discover where or in what manner any Goods or Chattels, supposed to have been stolen or lost, may be found, every Person, so offending, being thereof lawfully convicted.

The punishment was one year’s imprisonment, quarterly stints in the pillory for one hour, and the payment of sureties for good behaviour. The passing of the Act was by no means universally supported in Britain, and a considerable portion of educated society continued to believe in the power of witchcraft. The 1736 Act remained on the British statute books until 1951, and was occasionally dusted off and used against fortune tellers, cunning-folk, and spiritualist mediums.4

Although English common law held sway in colonial America, the complex political situations in the various states meant that the enlightened 1736 Act was not adopted automatically. Witchcraft apparently remained a capital crime in Rhode Island into the 1740s. It was only in the 1770s, following independence, that Thomas Jefferson proposed Virginia enact an Americanized version of the 1736 statute, recommending that: ‘All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, enchantment or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15 stripes’. New Jersey followed suit in 1796.5

Pennsylvania provides a particularly interesting case. In February 1754, the Pennsylvania House of Representatives considered a proposal by Benjamin Franklin and others to repeal the 1718 adoption of the 1604 act, as it was deemed ‘unnecessary here’. They further proposed that the 1736 Witchcraft Act be introduced to replace it.6 But the legislature did not listen. It was not until September 1794 that the 1604 act was finally repealed in Pennsylvania. Why was Franklin’s proposal not adopted at the time? Maybe the minor issue of witchcraft was lost in a bigger debate about the rejection of British common law. Maybe it was simply because of legislative timetabling and oversight. After all, by a statute of 1587, witchcraft remained a criminal offence in Ireland until it was belatedly repealed by the British parliament in 1821.7 Still, we should not dismiss the possibility that it was obstructed by the continued educated belief in witchcraft. We need only consider the views of Thomas Cooper (1759—1839), an English- born, Oxford-educated lawyer, philosopher, and president of South Carolina College. A political radical who supported the French Revolution, Cooper left for America after being accused of trying to undermine British constitutional institutions.8 Yet he was a believer in the literal truth of the Bible. In his Statutes at Large of South Carolina, Cooper inferred that the 1604 Act was still active in the state because its repeal in England and Scotland by the British parliament in 1736 did not extend explicitly to the colonies, and South Carolina and other states had not devised their own equivalent. Cooper then devoted several pages of notes to the history of the laws against witchcraft and their interpretation based on the volumes on the subject he possessed in his extensive library.

Without in any way expressing the view that the 1604 statute should remain active, Cooper defended the scriptural reality of witchcraft and so believed it could not be dismissed as mere pretence and imposture. He called upon the authority of Nicholas Trott, and the similar opinion of the eminent English jurist William Blackstone. Whatever therefore may be the opinions of the educated and enlightened part of the community in the present day’, Cooper concluded, ‘very many persons of good sense, as well as Christian piety, have been, and many still remain, firm believers in the reality and occasional existence of this presumed crime’.9

The squire

In nineteenth-century America the title of‘Squire’, short for ‘Esquire’, became a synonym for a justice of the peace. A century earlier it had simply denoted a gentleman landowner—the sort of man that often filled the role of the justice. It was an unpaid but coveted post, bringing with it political influence and the prestige of being a royal officer. The holders were all well-educated, but despite wielding considerable legal power and authority in their localities, the position did not require any formal legal training. Nevertheless, they ruled on a range of petty civil and criminal offences. During the America Republic, however, the squirearchy changed. The royal association was severed, but the influence and power of the post remained attractive to ambitious social climbers. The new breed ofjustice was no longer a squire in old world terms. While the role attracted many law graduates it also opened up to tradesmen and small farmers. One of the allures was that, once in post, the respected title of ‘squire’ stuck to them for life in popular custom. If Massachusetts is indicative of a broader trend, then in the early decades of the new republic the number of justices expanded considerably.10

Judging from contemporary opinion, the new breed of squire-justice was not well regarded. The provocative English journalist William Cobbett (1763-1835) spent several years in Pennsylvania in the 1790s and gained a very poor impression of them: ‘The moment these illiterate and unprincipled wretches receive the commission of the peace, they assume the title of Esquire, which their shoeless wives and children bestow on them on all occasions. It is not at all uncommon to see a Squire as ragged as a colt’. He went on to recall one justice of the peace in the neighbourhood of Philadelphia who sold greens and potatoes in the city’s market. He described such squires as a greater curse upon Pennsylvania than dysentery and yellow fever.11 A pen portrait of a New Hampshire justice of the peace by another author was no less flattering. Squire Jock was ‘an arrant pettifogger whose ‘mind was on a very small scale, and his studies had been but few and limited’.12

The squires have been rather peripheral figures in the history of America, but they were clearly an important part of the social fabric of American society in the eighteenth and nineteenth centuries. More to the point, they were the arbiters in many witchcraft disputes, and it was their role to try and resolve the personal and social conflicts that generated accusations. To carry out their duties eighteenth- century squires relied heavily on the numerous manuals that explained the role of the justice of the peace and provided the basics regarding the statutory misdemeanours over which he held jurisdiction. The reliance on such manuals further cemented the practices of British common law in the everyday application of justice in America.13 William Nelson’s Office and Authority of the Justice of Peace, which was first published in England in 1704 and went through numerous subsequent editions, was one of the most popular manuals on both sides of the Atlantic. The first and most popular American guide was the Conductor Generalis or a Guide for Justices of the Peace. It appeared in 1711 and went through eleven editions published in six cities in three colonies. While indispensible tools of the trade, these well-thumbed guides did not necessarily reflect current legal thought, and despite the production of numerous editions, they could quickly go out of date. The legal status of witchcraft highlights this all too well. Several justices’ manuals published in England and America in the year 1736 continued to reiterate the 1604 laws against witchcraft without any caveats or reflection, even though the last convictions for the crime had been several decades before. As the 1729 edition of Nelson’s Office of a Justice of Peace stated: ‘It seems plain, that there are Witches, because Laws have been made to punish such Offenders, tho’ few have been convicted of Witchcraft’.14 Hardly a sophisticated or nuanced argument: the letter of the law was the law.

After the passing of the 1736 Witchcraft Act, the next editions of the popular British manuals were updated, but American ones reflected the confused legal situation in the colony. Editions of the Conductor Generalis for 1749 and 1750, published in New York and Philadelphia respectively, continued to instruct justices on the content of the 1604 Act without any mention of its repeal. By the 1780s the crime of witchcraft had been expunged from its pages, but there was no mention of the 1736 Act. Not much help to the squire. Those reading a poorly edited North Carolina handbook for justices of the peace published in 1774 would have been further confused by reading details of the 1604 Act, being informed of its repeal in England, and then being told that witchcraft was still an offence in common law!15

It is not surprising then that some squires without legal training and relying on such manuals, were unclear about the status of witchcraft and the means of proceeding when confronted with cases brought before them. We need to bear in mind, furthermore, the considerable weight of popular pressure they were subject to in isolated communities. Some justices of the peace believed in witchcraft and were willing to bend to the will of those that did. In 1820, for instance, a Baltimore newspaper reported that a newly appointed justice of the peace in Frederick County, Maryland, had recently burned one of his pigs alive as a counter against an old woman who he believed had bewitched his pig sty.16 Now we can better understand the sensational actions of Squire French of Fentress County.

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