It would seem that reference to ‘witchcraft’, even as a fraudulent activity, was expunged from the statute books of most of the old states of the eastern seaboard by the early nineteenth century. New laws were instituted against fortune tellers and magical practitioners that took elements of the 1736 Witchcraft Act, namely the prohibition of magic as a false pretence, and married them with the essence of the British vagrancy laws that targeted simple fortune-telling and ‘immoral’ street activities. So in the 1840s the revised statutes of Maine included a section that bundled together nightwalkers, brawlers, railers, pilferers, common pipers, fiddlers, and those ‘feigning themselves to have knowledge in physiognomy, palmistry, or, for the like purpose, pretending that they can tell destinies or fortunes, or discover where lost or stolen goods may be found’. In Pennsylvania an act against fortune-telling covered those who pretended ‘to effect any purpose by spells, charms, necromancy or incantation’.22 No mention of ‘witchcraft’ though. Yet a few east coast states adhered closely to the old English witchcraft laws. In 1847 the statutes of New Jersey continued to reiterate the main contents of the 1736 Witchcraft Act, with pretenders to ‘witchcraft’ punished by fines of up to $50 and up to three months’ imprisonment.23 Neighbouring Delaware adopted a tougher approach.
The 2010 mid-term elections cast a spotlight on Delaware, where the campaign of the high profile, Tea Party Republican candidate Christine O’Donnell faltered during its latter stages after she took to the airwaves to publicly deny ever having been a witch. But this was by no means the first time that witchcraft had caused embarrassment in the state. In December 1892 newspapers reported that two fortune tellers, Mrs Purrle of New York City and Madame Merill of Elmira, were arrested for fortune telling in Wilmington, Delaware, and charged by the authorities with ‘witchcraft’. The penalty for the crime was one year’s imprisonment, one hour in the pillory (only for men), and a $100 fine. The two women were understandably frightened at being charged with witchcraft, and as the press noted, ‘The law is very old, and this is the first time the present authorities remember that it has even been enforced’.24 Did the crime of witchcraft really continue to exist in late nineteenth-century Delaware?
Move forward to 1950 and the Wilmington authorities once again found themselves in the same awkward position.25 A 23-year-old ‘character reader’ named Helen Evans was arrested on the 13 March after receiving a complaint from one of her female clients who suffered from a nervous disposition. After analysing her handwriting, Evans had told the woman that she was under a curse. She gave the woman some bread and sugar wrapped in a handkerchief, saying that might help, and told her to return in several days and for $10 she would remove the curse. The complainant then informed the police, accusing Evans of putting the curse upon her. She was arrested, and charged by Detective Lt. George Keinburger with practising the ‘art of witchcraft’. The press scented a good story. Evans was interviewed and was reported as saying, ‘Do they mean I’m one of those things that fly around on broomsticks? If that’s what they mean, then I should have a big black cauldron and be stirring things up in it shouldn’t I? Why, I should even have black cats crawling around’. When asked if she had any black cats, she replied, ‘No, only a Great Dane puppy named Baron’. The next journalistic port of call was Delaware’s chief archivist Leon De Valinger who traced the witchcraft portion of the state’s law back to the English Witchcraft and Conjuration Act of 1604. The state’s attorney general, Albert W. James, was reported as saying that he was unfamiliar with the statute and was at a loss to explain what the ‘art’ of witchcraft entailed.
Judge Thomas Herlihy Jr presided over the case. He had taken up the position of judge four years earlier with a remit to clean up and modernize the municipal court. One of his first acts was to end racial segregation in the courtroom, and he also formalized the practice of informing defendants of their rights.26 Dealing with the offence of witchcraft was clearly not something he was going to tolerate. On accepting a request to postpone the trial due to Evans’ ill health, he remarked, ‘It is unbelievable that a charge of practising the art of witchcraft could be brought in the enlightened state of Delaware’. With the glare of the American press on them, the postponement meant there was time to find a solution that dampened media interest in the story. But, first, let us now turn to the actual rather than reported legal status of witchcraft in Delaware.
In 1719 an ‘Act for the advancement of Justice, and more certain administration thereof’ instituted a raft of English common law statutes. Amongst them was the 1604 Act referred to by Leon De Valinger. So section 9 of this Delaware Act, stated:
And be it further enacted by the authority aforesaid, That another statute, made in the first year of the reign of King James the first, chapter the twelfth, intituled, ‘An act against conjuration, witchcraft, and dealing with evil and wicked spirits,’ shall be duly put in execution in this government, and of like force and effect, as if the same were here repeated and enacted.27
On 7 February 1777 the Assembly of the Lower Counties on the Delaware recommended that this Act against Conjuration be repealed.28 This was duly instituted two years later to conform to the English Witchcraft Act of 1736, thereby allow for the prosecution of the ‘pretence’ of witchcraft. So, by the early nineteenth-century the Delaware law concerning witchcraft ran as follows:
If any person or persons shall pretend to exercise the art of witchcraft, conjuration, fortune telling or dealing with spirits; every person or persons so offending, upon conviction thereof, shall be publicly whipped with twenty-one lashes on the bare back well laid on, and shall forfeit and pay to the state a fine not exceeding one hundred dollars.29
By 1852 the punishment of whipping had been removed and in a nod to the prevailing Western shift in penal policy, those convicted were to ‘be imprisoned not exceeding one year’. Yet counter to the general trend, the Delaware legislature decided that some form of public punishment was still necessary, and so it was decreed that culprits should also ‘stand one hour in the pillory’.30
So this was the state of the law at the time of the trial of Mrs Purrle and Madame Merill in 1892. When the journalist and novelist Theodore Dreiser (1871—1945) cast his keen eye on Delaware’s laws during a visit in 1901 he did not fail to remark on the witchcraft statute, noting that ‘such statements must certainly sound antiquated to the residents of every other state; but Delaware is peculiar in its old fashioned attitude’.31 This peculiarity extended to Delaware’s fondness for the pillory. The pillory had been abolished in England in 1837 and was last used in 1821. It was phased out in nearly all the American states during the mid-nineteenth century. Delaware’s reluctance to pay for a state prison and adopt a penal policy based on incarceration and hard labour meant that at the dawn of the twentieth century it was still pillorying and whipping convicted criminals.32Dreiser attended one session where several men where pilloried and whipped as a crowd of some two hundred winced, smiled, and laughed.33
The journal of the Delaware House of Representatives for 1905 records that in the previous year a man in Sussex County had been convicted of ‘pretending to practice the art of witchcraft’ and was ordered to stand in the pillory on Saturday, 5 November 1904.34 It is unlikely this was carried out though, for the authorities were, at the time, debating the future of the pillory. In 1905 it was abolished by a near unanimous vote. The witchcraft law received further discussion in the House in 1927 when Representative William E. Virden introduced a bill to add the word ‘phrenology’ to the list of other supernatural frauds— ‘witchcraft, conjuration, fortune telling or dealing with spirits’. The amendment was passed, Senate Attorney Lynch explaining that it was added to prevent gypsies from divining the bumps on people’s head. The law needed sharper teeth.35 So, by the time of the trial of Helen Evans, one legal anachronism had been expunged from the state statute books, but another remained. Although the Delaware code was quite clear that witchcraft was not an offence but rather the pretence of witchcraft—a fundamental distinction—it was easily confused in the public consciousness and prone to journalistic manipulation and misunderstanding. This was what troubled Judge Herlihy and also Evans’ lawyer, James Gallo, who told a reporter that he thought the charge would be changed prior to her trial.
The press had a field day mocking the small east coast state. An editorial in the Alabama newspaper The Dothan Eagle opined: ‘Maybe Delaware doesn’t have any laws to cover curse-removing except this one. If so, this is certainly a case of “there oughta be a law”. Charging somebody with witchcraft these days is ridiculous, even if it is resorting to a technicality. It doesn’t speak much of the modernity of the State of Delaware’. A Californian paper similarly noted with humorous understatement, ‘Delaware is well on the road to becoming one of the most civilized localities’.36 In early May, Judge Herlihy ruled that Evans would stand trial on charges of fortune-telling only and she was granted $300 bail. So a much anticipated ‘witchcraft trial’ was avoided and press interest duly evaporated. Delaware was hardly the most talked about state in America, and the authorities’ discomfort over the national attention given to the case was clear: the jibes hurt.
Action was taken. In 1951 the New Castle attorney and member of the House, Stephen E. Hamilton, introduced a Bill to the Delaware House of Representatives calling for an amendment to the law ‘relating to skill in witchcraft’.37 It was one of a number of‘obsolete statutes’ identified by the state’s revised code commission. It could not be struck from the law books without the approval of the Delaware Assembly, though, and this duly happened in February 1953. It was widely reported in the national press, and headlines such as that in the Tucson Daily Citizen no doubt caused further teeth-grinding. ‘Witchcraft Now Legal in Delaware’ it exclaimed.38 The Speaker of the House, Frank Albert Jones, welcomed the move but said he would ensure that a new provision was instituted prohibiting fortunetelling, and dealing with spirits. This was duly done so that in 1955 a clause was returned that was the same as the old statute only with ‘witchcraft’ removed.39 Spirits and conjuration seemingly remained troublesome to the state.