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What’s in a name?

For some the American dream crumbled when rumours of witchcraft began to fly. Just as in the period of the witch trials, they ripped families apart, led to communal ostracism, destroyed livelihoods, and were potentially life threatening. Take the tragic case of Annie Weber, for example. She and her husband Carl, a wood turner by trade, had emigrated from Germany and settled in New York where they produced five children. They were part of a great wave of German immigrants. In 1880 there were around 500,000 German Americans in the city, and nearly a third of its population was either German bom or the children of German immigrants.40 In February 1889 the family were living at 316 Rivington Street, now a fashionable destination for restaurant goers, then described as a desolate place of cheap tenements. One morning Annie went to Madison Square Park and swallowed some arsenic. A policeman found her writhing in agony and took her to hospital where she died. Poverty had driven her to despair. Carl could not get full-time work, the young children were going hungry, and their fifteen-year-old daughter hung around the streets late into the night and had to be sent to a reformatory. The accusations of witchcraft that had been repeatedly flung at over the previous two months tipped her over the edge. The source of the slander was a woman named Soine who lived across the hall from the Webers. A journalist for the New York Herald paid her a visit. Soine freely admitted that she had called Annie a witch on a number of occasions during frequent domestic quarrels. She said, however, that she always withdrew the charge when her anger subsided, and did not think that Annie would take her words to heart.41 That is the danger of harmful words.

Some of those accused of witchcraft moved away to physically distance themselves from their tormentors, others decide to fight back through the courts. This is what Mrs William Geiser, of Paterson, New Jersey, did in 1893 after accusations of witchcraft against her led to two families moving out of her house.42 In 1914, in Lower Towamensing township, Pennsylvania, a young married woman named Lizzie Silliman made public accusations of witchcraft against Emma Hollenbach. On 25 April, for instance, she was alleged to have said: ‘Old Mrs Hollenbach is a witch. She can practise witchcraft. She was also after my baby, and your twins. She has bewitched them’.43 As a result, Hollenbach, who made a living selling eggs, butter, and poultry, had lost much of her trade. She too decided to take legal action.

Slander unlike witchcraft was not a crime against society, and, therefore, it was prosecutable as a civil rather than a criminal offence; that is to say, cases were brought by private suit between individuals. If successful, the defendant paid damages to the plaintiff commensurate with the harm done. The damages awarded reflected the seriousness of the imputed crime and the reputation of the plaintiff. So the cost of a slanderous witchcraft accusation was likely to go down as the threat of prosecution for the capital offence receded. In 1724 Sarah Spence sued Elizabeth and James Ackley at the county court in Colchester, Connecticut. She had moved to there from East Haddam, but her repute as a witch followed her despite having a certificate for ‘good religion and virtue’ from her minister John Buckley. On returning to Haddam the Ackleys accused her of being a witch. She sued for the considerable sum of £500 and received £5. This was then reduced to one shilling on appeal.44 Move on a couple of decades, and in 1742 Elizabeth Gould, a New Haven widow, was awarded a mere sixpence in damages from Benjamin Chittenden, despite Gould’s claim that the charge of witchcraft made against her had brought her into ‘Abhorrence’ and led to her being ‘vexed, grieved and molested’ by her neighbours.45

As the legal system and jurisprudence became more sophisticated during the eighteenth century, defamation became more problematic for the authorities. This was compounded by the decline of the formal role of the churches in dealing with moral offences, and the growing pressure on justices and the courts by an expanding population. In America there was an explosion of litigation during the first half of the eighteenth century, mostly concerning debtors and business dealings, but there was a substantial decrease in slander suits, particularly those brought by women, over the course of the century.46 Some of this decline may have come from the bottom up, but it is also clear that the judiciary were tightening access to the courts for non-criminal offences.

Defamation concerning witchcraft became particularly knotty. In his Treatise of the Law of Slander (1813) Thomas Starkie simply gave up trying to come to a firm legal principle on the issue. The case law was so inconsistent ‘as to appear incapable of affording any illustration of the subject of this treatise’.47 The numerous cases compiled by Charles Viner (1678-1756) in his much-thumbed 23-volume General Abridgment of Law and Equity undoubtedly furnished the sources that led Starkie to reach his weary conclusion. A perusal of Viner’s lengthy section on witchcraft slander certainly reveals a history of legal contradiction and contestation. So in one instance it was decided that to say to another ‘he is a witch’ was not actionable, that is giving cause for legal action, because it was a ‘common word of passion’. Yet to say ‘he is a witch, and deserves to be hanged’ was actionable slander because ‘deserves to be hanged’ confirmed that the slanderer used ‘witch’ in terms of the capital offence of witchcraft. Another ruling decided that to call someone a witch was not an actionable slander unless some act of witchcraft was also alleged.48

All of Viner’s cases dated to the period in England when the 1604 Witchcraft and Conjuration Act was still in force and being implemented. The interpretation of slander changed once the Act was repealed in 1736. From then on, as reported in a volume of case law argued in the New Jersey supreme court, witchcraft was no longer slanderous as the crime did not exist.49 As the British lawyer Lord Chief Justice de Grey concluded in 1771, slanderous words ‘must contain an express imputation of some crime liable to punishment, some capital offence, or other infamous crime or misdemeanour’.50 This was why Viner ended his section by concluding that because of the 1736 Act ‘it may be impertinent to add anything more as to witches or witchcraft, &c’.

But the matter was not clear-cut, as the much more frequent incidence of sexual defamation in the late eighteenth century revealed. On both sides of the Atlantic judges struggled to find a common position on what was another decidedly female concern. Some sexual improprieties that may have offended common sensibilities were not criminal or at least not serious crimes, so imputing them to someone was not necessarily actionable. In England the ecclesiastical courts continued to deal with sexual defamation up until 1855, but could only deal with cases not actionable under common law, such as the imputation of adultery and fornication. So a woman could go to the church courts if she was called a ‘lazy stinking strumpet’, but not if she was called ‘a thief and a whore’. Most of the women who resorted to the church courts in this late period were from the upperworking class.51 In America there was no such alternative, and during the first half of the nineteenth-century state legislatures came to different decisions about how to accommodate sexual slander against women. North Carolina and Kentucky, for instance, enacted laws that facilitated female access to litigation over sexual slander. Other states stuck closely to English common law for much of the century. There was a general awareness, though, that common law was inadequate when it came to the protection of female honour. The evidence suggests, however, that popular resort to the courts for sexual slander was far from the familiar path it had been a century and a half before. New York’s appellate courts heard only twenty-four sexual slander cases between 1807 and 1880.52

During the late eighteenth century uncertainty as to whether the 1604 Conjuration Act had been repealed or not, caused further head scratching as to how to proceed with witchcraft slander, as a rare detailed case from Massachusetts illustrates. In October 1787 John Estes and his wife Eleanor sought an action of slander against Aleut Stover, before the Court of Common Pleas, Cumberland County, Maine (then part of Massachusetts).53 The setting for the events that led to the suit was Harpswell Township, where both the Estes family and the Stovers were well established.54 This coastal community comprised a promontory and several islands and was populated mostly by farmers and fishermen. It was described a few decades later as a delightful place in summer that attracted pleasure seekers and convalescing invalids. But reminiscing of life in the area around 1780, James Curtis wrote in his journal: ‘Every sorry old woman was deputed a witch, and spirits were frequently seen, and much feared’.55 Eleanor Estes was one such sorry woman.

Stovers had been uttering accusations against Eleanor for several years. One witness deposed that in 1784, while he and Stovers were out on Goose Island, they had observed a number of young cattle behaving unusually wildly, running around very quickly. The witness remarked to Stovers that perhaps the cattle were bewitched and suggested that Eleanor Estes might be the witch responsible. Stovers replied that he did, indeed, think as much, and went on to say, ‘I can prove it, and if she don’t mind, I’ll have her hanged’. The following spring, according to another witness, Stovers repeated his opinion that she was a witch, but said he was unsure as to whether he could prove enough to have her hanged. The next year, Stover told an acquaintance that he believed John Estes and his wife had been ‘wishing bad wishes upon his creatures; and her wishes generally came to pass’. Stover’s said Eleanor was a witch, but as the acquaintance deposed, he ‘said that he did not think she was so bad a one as they were in former times’. Another resident, Andrew Webber, deposed that he heard Aleut Stover say that he believed Eleanor Estes ‘was a witch’. Webber continued: ‘I have heard that Eleanor Estes, the wife of John Estes, was a tattling woman, and made mischief among her neighbours; but as to my own knowledge, I don’t know any harm of Eleanor Estes, except the common report about town’.

As to the legal situation, it would seem that the 1604 Act had not yet been formerly expunged from the statute books of Massachusetts. According to the early nineteenth-century Cumberland County lawyer James D. Hopkins, around the same time as the Estes case Judge Wells had informed a jury that, regrettably, the old statute against witchcraft remained unrepealed and was therefore still in force.56 No wonder then that Stover repeatedly stated that he hoped to see Eleanor hang. Because the 1604 statute was deemed still law the slander was actionable and so the Court decided in Estes’ favour. This was not the end of the matter though. Stover appealed against the decision and in July 1789 the Superior Court reversed the judgment. Despite the rule of common law, the declaration of the Court of Common Pleas was deemed insufficient, perhaps because it was considered absurd that a prosecution for witchcraft was a serious possibility. Stovers recovered a large sum in damages, and the poor Estes were left counting the costs of trying to solve their terrible predicament in a peaceful and measured way.

During the early nineteenth century growing concerns were expressed that the defamation laws were counter-productive in terms of their social value. In the opinion of Judge Jasper Yeates (1745-1817), who sat on the bench of the Pennsylvania Supreme Court, the reiteration of slanderous accusations in such a public forum as the courtroom should be discouraged. Encouraging legal ‘actions for general expressions of censure by individuals in their daily intercourse with their fellow citizens, would not conduce to the peace of society’ he said.57 From the 1830s onwards the judiciary tried to restrict further the flow of petty slander, with the squires playing a significant role in ensuring that potential cases were nipped in the bud. By the latter stages of the century the flow of slander cases, most concerning sexual defamation, had been reduced. But new cultural pressures exerted themselves with regard to witchcraft.

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