Thursday, October 29, 2015

From Witchcraft Judge to Abolitionist

This guest post was written by Marguerite Most, Reference Librarian and Senior Lecturing Fellow.

"Men think 'tis a disgrace to change their mind… But there is not a greater piece of folly than not to give place to right reason." Samuel Sewall, January 1689. Source: Salem Witch Judge: The Life and Repentance of Samuel Sewall, a 2007 biography about Sewall in the Goodson Law Library collection.

Scholars of colonial history will know the name Samuel Sewall. He was one of nine judges who presided over the 1692 witchcraft trials in Salem, and the only one to publicly acknowledge and accept blame for the harm and horror of the trials. Sewall is almost as well-known as the author of the first abolitionist tract in colonial America.

Portrait of Samuel Sewall by Nathaniel Emmons
(1728). Massachusetts Historical Society.
In May 1692, Samuel Sewall was appointed by Massachusetts Governor William Phips to sit on the Court of Oyer and Terminer, a court created specifically to bring to trial the growing number of accused witches in Salem and nearby towns. Phip's lieutenant governor William Stoughton was appointed to head the court; it was William Stoughton who made the decision to admit spectral evidence of ghostly apparitions – spirits that were alleged to be witches and allegedly were attacking Salem residents. Stoughton's zeal as a judge seems to have equaled the Puritan religious leaders' passionate belief that the colony was under attack by the devil. Within two weeks of the court's establishment, the first witch was hanged. Before the court was disbanded on October 29, 1962, 19 people were hanged.

Five years later, Samuel Sewall stood before the congregation in the South Church in Boston as his confession of wrongdoing was read:
Samuel Sewall, sensible of the reiterated strokes of God upon himself and family; and being sensible, that as to the Guilt contracted upon the opening of the late Commission of Oyer and Terminer at Salem (to which the order of this Day relates) he is, upon many accounts, more concerned than any that he knows of, Desires to take the Blame and shame of it, Asking pardon of men, And especially desiring prayers that God, who has an Unlimited Authority, would pardon that sin and all other his sins; personal and Relative...

Sewall was the only judge to publicly repent; after his 1697 confession, he set aside a day each year to fast and pray for forgiveness for his sins in the witchcraft trials. He went on to serve for many years as the chief justice of the Massachusetts Superior Court of Judicature, the province's high court. The court operates today as the Supreme Judicial Court of Massachusetts, the oldest continuously operating court in the United States.

Best known today as a judge in the Salem witchcraft trials, Sewall partly redeemed his reputation with his public confession. Richard Francis, the author of Judge Sewall's Apology: The Salem Witch Trials and the Forming of the American Conscience opens his 2005 book with a description of the Salem witch hunt and goes on to consider how Sewall's confession before the South Church congregation should be viewed as a turning point toward modern American values, and away from a world of evil to a world in which forgiveness is possible.

Following his witchcraft confession, Samuel Sewall became an outspoken abolitionist. In 1700, his 3-page tract, The Selling of Joseph: A Memorial, was published in Boston. This was the first public plea in America against slavery. The text contains numerous biblical references in support of Sewall’s position and sets out his understanding of a God-given command against holding slaves. Countering the prevailing social mores of the time, he argued that all men are created equal. The tract includes these words: "It is most certain that all Men, as they are the Sons of Adam, are Coheirs; and have equal Right unto Liberty, and all other outward Comforts of Life. GOD hath given the Earth [with all its Commodities] unto the Sons of Adam, Psal. 115. 16. And hath made of One Blood, all Nations of Men, for to dwell on all the face of the Earth."

In his diaries, housed in the collection of the Massachusetts Historical Society, Sewall expressed his concern not only for all slaves in the colonies, but for all men. This comment is from a diary entry in 1716: "I essay'd June, 22, to prevent Indians and Negroes being Rated with Horses and Hogs; but could not prevail."

The appendix of Salem Witch Judge includes the text of The Selling of Joseph and the text of Talitha Cumi: Or an Invitation to Women to Look after their Inheritance in the Heavenly Mansions. In Talitha Cumi, Sewall argued that women as well as men would be resurrected. The essay has been called an early argument for the equal rights of women.

The only known copy of Sewall's anti-slavery tract is in the collection of the Massachusetts Historical Society. A copy is on display in the Riddick Room display cabinet of the Goodson Law Library, as are several of the biographies mentioned in this post.

--Marguerite Most, Reference Librarian and Senior Lecturing Fellow

Tuesday, October 27, 2015

Spectral Evidence in the Salem Witch Trials

This guest post was written by Marguerite Most, Reference Librarian and Senior Lecturing Fellow.

People were accused and executed for witchcraft throughout the colonies during the seventeenth century, but especially in Massachusetts. Today dressing in a witch's costume on Halloween is a way to make merry. But in the 17th-century Massachusetts Bay Colony, Puritans, who followed strict religious rules in their daily lives, lived in a pre-science era. Witches were real, and their doings explained what could not be otherwise explained. In the years preceding the Salem witchcraft trials Puritans ministers warned from the pulpit about demonic possessions and visits from Satan. Everyday reality mingled with an invisible world inhabited by these spirits, and religious values permeated every aspect of society. Satan was said to appear as a “black rogue,” or an Indian or an animal called a witch's familiar. For the Puritans, the devil and his witches affected the world in very serious ways.

Within a four-month trial period in the spring of 1692, 156 people from 24 Massachusetts villages were prosecuted as witches. Nineteen were hanged and one was pressed to death after refusing to confess. The trials began and were concentrated in Salem town. The evidence presented in the Salem witchcraft trials included confessions under torture, supposed eyewitness testimony, and physical inspections of the accused for moles and other blemishes, said to be marks of the devil. However, the scarcity of eyewitnesses and direct physical evidence made proving witchcraft difficult, and the most damning proof came from the admission of spectral evidence based on visions of the accusers.

Specters or spirits were visible to alleged victims of witchcraft, but only to the victims. The accusers, all young girls, alleged that some Salem residents had contracted with the devil and afflicted them. "The afflicted," as they were called, testified that a specter or ghostly apparition of the accused had appeared in the shape and likeness of the accused and tormented them. Since Puritans believed that the physical body of a witch could appear in one place while the witch's specter was in another, and since the devil could not assume the specter of an innocent person, the accused witch had no defense against this kind of proof.

Judge Samuel Sewall, a judge at the trials, is said to have reported the death of Giles Corey in this way: "About noon, at Salem, Giles Corey was press'd to death for standing mute."
I will not plead
If I deny, I am condemned already,
In courts where ghosts appear as witnesses
And swear men's lives away. If I confess,
Then I confess a lie, to buy a life,
Which is not life, but only death in life.
--Henry Wadsworth Longfellow
According to several accounts, the events leading to the trials began with fortune-telling sessions by two girls ages nine and eleven, one of whom was badly frightened by the sessions. The girls began to exhibit strange symptoms and to claim they were being bitten and pricked. When doctors could find no other explanation, one doctor concluded the girls were "under an Evil Hand." They insisted they saw the accused witch's specter tormenting them or others. In a deposition of April 11, 1692, one of the girls testified that the apparition of Elizabeth Proctor '...most grievously afflicted me by biting, pinching, and almost choking me. . .' Her evidence was accepted as valid.

A defendant who confessed and named other witches was allowed to live. And so, the accusations spread. For over seven months the jails filled with more and more accused. By September the witch hunt was slowing as respected citizens were executed, and the well-connected, including the wife of Massachusetts Governor William Phips, were accused of witchcraft. The educated elite of Boston began questioning the reliability of specter evidence. In October Harvard President Cotton Mather delivered a sermon to clergymen titled Cases of Conscience Concerning Evil Spirits Personating Men. Speaking of spectral evidence Mather said "It were better that ten suspected witches should escape, than one innocent person be condemned."

The use of spectral evidence in the Salem trials has drawn the attention of scholars interested in how evidentiary standards have evolved over time and in the use of expert testimony, as well as the attention of social scientists interested in crowd memory and mass hysteria. The Salem trials were conducted by lay magistrates with no legal training. Guilt was assumed. If a guilty verdict was not delivered, the jury was instructed to reconsider – and a guilty verdict would be forthcoming.

By the time of the Salem witchcraft trials, witches were no longer hanged in England. Nevertheless, magistrates in Salem found precedent for the admission of spectral evidence in the writings of Sir Matthew Hale, the Lord Chief Justice of England and Wales. Thirty years before the Salem trials, Hale presided at a 1662 witchcraft trial in Bury St. Edmonds, England, and his record of the trial, A Tryal of Witches at the Assizes, was cited by Massachusetts magistrates as a model for allowing spectrum evidence in the Salem trials. At the same time magistrates did look for other kinds of evidence, and the court did follow set courtroom procedures. In Judge Sewall's Apology, a biography of the only one of the nine witch trial judges to apologize for harm to innocent victims, Sewall is noted as explaining that the specter of the defendant would attack the accusers during the preliminary examination in front of those at the hearing, thereby guaranteeing the two witnesses required for a guilty verdict at trial.

Historians today have several explanations for the hysterical outbreak in 1692 Salem including class conflict in the Salem congregation, and the First and Second Indian Wars on the frontier of the New England settlement. Many of the accused were women from the "lower classes," and several scholars have suggested that charges of witchcraft were a way to control women who threatened the existing economic and social orders.

Probably the best known twentieth-century dramatization of the trials is Arthur Miller's 1953 play The Crucible, which Miller is said to have written as an allegory of McCarthyism, when the excesses of the House Un-American Activities Committee and Senator Joseph McCarthy's Permanent Subcommittee on Investigations blacklisted accused communists. Cold War, Cool Medium: Television, McCarthyism, and American Culture is one of many books in the Duke libraries that examines McCarthy and his witch hunting crusade. At least one writer has suggested that the Salem witchcraft trials have "disquieting the resonances in a post-9/11 world of extraordinary rendition and practices such as waterboarding."

Stop by the Riddick Room display cabinet on the main floor of the Goodson Law Library to learn more about the Salem witch trials and their English precedent.

--Marguerite Most, Reference Librarian and Senior Lecturing Fellow

Friday, October 23, 2015

U.S. GAO: The Congressional Watchdog

When the U.S. Congress needs a closer look at how federal funds are being spent, it calls upon the U.S. Government Accountability Office (GAO). Formerly known as the General Accounting Office from its creation in 1921 until its current name change in 2004, this non-partisan investigative office is nicknamed "the congressional watchdog" for its auditing responsibilities over federal agencies and programs. GAO investigations usually result in either congressional testimony or the publication of reports (or both). These reports are available online back to the agency's inception in the early 1920s, and are still commonly known as "blue books" after their former appearance in print, although they are now available only electronically. Reports & Testimony can be browsed or searched at the GAO website. The Advanced Search is recommended.

U.S. GAO reports can only be updated at the request of a member of Congress, either through legislation or via a request in a committee report. The latest edition of the House Document Reports to Be Made to Congress provides more than 15 pages of required GAO reports and their legislative authority. Researchers who find a useful, but outdated, report may be able to generate a request for an updated report by contacting their congressional representatives. Researchers might also discover that a report has been withheld from publication, due to the presence of classified agency information or other sensitive material. Earlier this month, GAO began posting title lists of restricted GAO products in order to provide greater transparency about the existence of these restricted materials. Reports which were withheld at the time of publication but later released may be found in the Advanced Search for the phrase "NI" in the report number field.

The GAO may also be familiar to legal researchers for their extensive compiled legislative histories. Since 2009, these have been available through WestlawNext to current members of the Law School community, with the database short name FED-LH or by browsing to Statutes & Court Rules > Legislative History. The U.S. GAO Federal Legislative Histories database includes PDF copies of congressional bills, debates, committee reports, and hearings related to enacted laws from 1921-1995.

Duke's research guide to Federal Administrative Law provides sources for background information on federal agencies and offices like GAO; the library guide to Federal Legislative History offers additional resources for locating compiled legislative history publications. For additional help with accessing GAO publications on a topic, or GAO compiled legislative histories, be sure to Ask a Librarian.

Wednesday, October 7, 2015

Hypnotism and the Law

Students of evidence already know that hypnotism has a long history in our legal system (for example, a 1902 Yale Law Journal article explored "Legal Aspects of Hypnotism"). Hypnotically-refreshed testimony, highly controversial on the subject of its admissibility and reliability, has received the majority of scholarly attention over the years.

But another, even older, twist on hypnotism and the law resurfaced this week – liability for harm to a hypnotist's subject. In an unusual case from Florida, a school board approved a $600,000 settlement agreement with the families of three high school students who died in 2011 after they were hypnotized by the school's former principal. During an investigation after the tragic suicide of the first student, the school discovered that then-Principal George Kenney had hypnotized as many as 75 students and staff members in the school, and also taught students self-hypnosis techniques as a method to improve concentration. (Another student also committed suicide, while the third was involved in a fatal car accident, allegedly after using the self-hypnosis technique.)

As the local newspaper reported, the former principal resigned a year after the students' deaths, and was charged with misdemeanors related to the practice of hypnotism without a license. Florida law prohibits the practice of hypnotism for therapeutic purposes except for "practitioners of the healing arts," as part of its extensive Hypnosis Law. A plea agreement allowed Kenney to receive a year of probation, after which he gave up his Florida teaching license and moved to North Carolina, where he now operates a bed-and-breakfast.

As it turns out, Florida is not the only state to legislate the practice of hypnotism. The National Guild of Hypnotists provides a 50-state survey on State Law and Legal Issues: 2015 Edition. The Guild provides common-sense advice to members about keeping on the right side of the law, including the avoidance of the word "therapy" and guidance on record-keeping and professional ethics. The end of this publication includes a brief listing of the 15 states which have passed some sort of legislative prohibition on the practice of hypnotism (including Florida), and 15 more which have laws that may be interpreted to prohibit some hypnotism practices.

General Techniques of Hypnotism (1957)
by Andre M. Weitzenhoffer.

To learn more about the history and techniques of hypnotism, search the Duke University Libraries Catalog for the subject heading "Hypnotism." You’ll find titles like 2000's Hypnotism: A History as well as classic texts like Andre M. Weitzenhoffer's General Techniques of Hypnotism and 1903's Complete Hypnotism: Mesmerism, Mind-Reading and Spiritualism, available for free via Project Gutenberg. Discussions of hypnotically-refreshed testimony can be found in most general evidence treatises, accessible through the catalog with a subject search for "Evidence (law) – United States." For help locating these or other resources on hypnosis and the law, be sure to Ask a Librarian.

Thursday, October 1, 2015

First Monday in October: Dos and Don'ts

Monday, October 5 marks the start of the U.S. Supreme Court's October Term 2015. Since 1916, the "first Monday in October" has been the official kick-off of Supreme Court arguments for a particular term, as outlined in 28 U.S.C. § 2. Although the last OT2014 opinions were handed down in late June, the Court doesn't exactly kick back for a lengthy summer vacation: justices have been hard at work behind the scenes this summer reviewing new petitions for certiorari.

There are already forty cases on the docket for this term (listed with brief descriptions at SCOTUSblog); the Court continues to add new cases to the term, with thirteen petitions granted just today. The cases already scheduled for oral argument can be viewed at the Supreme Court's Argument Calendars page. First in line this year is OBB Personenverkehr AG v. Sachs, concerning the definitions of "agent" of a "foreign state" under the Foreign Sovereign Immunities Act. The SCOTUSblog case file contains a summary of previous case activity and links to the full text of the petition and briefs.

What does it take for an attorney to appear before the U.S. Supreme Court? SCOTUS maintains a bar admission process for attorneys who wish to argue before it. Although some have derided the $200 resume booster as a "vanity" credential for most attorneys who join, others highlight the perks of admission to this club, such as prime seating for other Supreme Court arguments.

For those Supreme Court bar members who do actually appear before the Court, the SCOTUS website provides Guides to Counsel with the inside scoop about oral arguments and other Court procedures and etiquette. For example:
  • DON'T walk up the front steps to the Court on argument day: there's a separate entrance for counsel, and arguing counsel can even cut in the line.
  • DO steal the pens: "The quill pens at counsel are gifts to you – a souvenir of your having argued before the highest Court in the land. Take them with you. They are handcrafted and usable as writing quills."
  • DON'T bring a legal pad to the lectern: it won’t fit. The Court recommends a single notebook instead: "Turning pages in a notebook appears more professional than flipping pages of a legal pad."
  • DO look toward the light: the Marshal will alert you to 5 minutes left of your argument time with a white light. A red light means time's up.
  • DON'T get too cute with the justices by cracking jokes: "Attempts at humor usually fall flat."
More detail about the work of a Supreme Court litigator can be found in the seminal treatise Supreme Court Practice, 10th edition (KF9057 .S8 2013 & online in Bloomberg Law: Search & Browse > Books & Treatises > Bloomberg BNA). This guide, it should be noted, doesn't say a word about the quill pen souvenirs (although it does warn about the legal-sized pads).

For more information about the U.S. Supreme Court's upcoming term, check out SCOTUSblog, the Supreme Court website, and the Goodson Law Library's research guide to the U.S. Supreme Court.