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September 05, 2012 11:16 AM American “Justice”: Far Behind the Salem Witch Trials

By Jonathan Zasloff

The Obama Administration’s decision — released the Friday afternoon before Labor Day — that no one will be held accountable for the systematic policy and use of torture would be more nauseating if it were not so predictable. I cannot add to Lemieux, Serwer, Drum, Sullivan, and Greenwald, and you should read them.

American political culture is at a particularly childish moment. Our leaders cannot prosecute what they did in our name, and they cannot even acknowledge it. Oh yes, President Obama did stop the policy, and he deserves credit for that, but it was all part of sweeping things under the rug: let us look to the future, not the past. After all, looking to the past means looking at something unpalatable, and that is not allowed. As Richard Hofstadter noted, “American use their history as an excuse for an orgy of self-congratulation.” If anything, the Republicans are far, far worse: to the extent that they don’t want to sweep this under the rug, it is because they are proud of their crimes.

But it was not always this way. Edmund Morgan, the world’s greatest living historian, recently published a book of essays entitled American Heroes, a work whose title appears to be the only flawed thing about it. One (previous unpublished) essay is entitled “The Courage of Gils Cory and Mary Easty.” Cory and Easty were residents of Salem in the 1690′s, wrongfully accused of witchcraft, and instead of turning states’ evidence and accepting a lesser punishment, they vigorously maintained their innocence, knowing that death would result. They particularly condemned the use of “spectral evidence,” in which a person could be convicted of witchcraft simply by another person saying that he or she “was being tormented by a specter in the shape of the accused.” Usually, courts refused to accept this evidence, knowing how unreliable it was. But so terrorized was Salem by the prospect of witchcraft that the rule book was thrown out. Cory and Easty, Morgan argues, were two of the most courageous people in American history.

Here is where modern times have truly become shameful. Morgan relates that “there was another kind of courage displayed in connection with witchcraft trials that would be hard to find a parallel today:

Five years after the trials, in 1697, the General Court of Massachusetts decided that the trials had sent innocent people to their deaths. January 15, 1697, was appointed as a day of public fasting in which the people of the colony should ask forgiveness of God for what they had done. And on that day Samuel Sewall, one of the judges, stood up before the congregation of the church to which he belonged, with bowed head, while the minister read a statement that Sewall had written, begging forgiveness of God and man for the part that he had played in the witchcraft trials, asking that ‘the blame and shame of it’ be placed on him. On the same day the jury that had sat in the trials published a wirtten expression of their “deep sense of sorrow” for their decisions, “whereby we fear we have been instrumental with others, though ignorantly and unwillingly, to bring upon ourselves the guilt of innocent blood.”

What a moving and noble reaction from a people that was imperfect and knew it. They could not bring back the dead, but they could restore the victims’ property, they could hold themselves accountable, and they could admit that they were wrong. And from contemporary America: nothing. We have instituted Regress in History.

Morgan writes: “Can any modern people point to a similar willingness to remedy injustice, even after the event?” In today’s United States, at least, we know the answer.

[Cross-posted at The Reality-based Community]

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Jonathan Zasloff is a professor of law at the University of California, Los Angeles.
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