American “Justice”: Far Behind the Salem Witch Trials

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  One (previous unpublished) essay is entitled “The Courage of Gils Cory and Mary Easty.”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.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

24 thoughts on “American “Justice”: Far Behind the Salem Witch Trials”

    1. If I were to teach modern American Political Science, I would start with that crux, and go from there.

  1. Reparations to the Japanese Americans who were interned.

    But, I agree there aren’t many examples of actual restitution. You can find apologetic speeches sometimes.

    1. Very true, but remember: reparations occurred more than 40 years after the internment, and allow me a significant amount of skepticism as to whether nowadays, the current Eepublican Congress would do the same thing. Note also that the Puritans of Salem did all of this only five years after the witch trials. We are far behind them.

  2. Chris Hayes has covered this quite well in his recent book. There is no accountability for the 1%, in politics or economics. It is impossible for them to fail in any direction other than up. Is it even plausible that what happened to Arthur Goldberg or Abe Fortas could happen to one of their equivalents today? Nope.

    1. Actually, those who escaped prosecution last week weren’t in “the 1%.” They were line operators. Impunity at the top was baked into the cake long ago.

        1. Yes. We. Do.

          Why do I remember things like “return to the rule of law” and “public option”? Oh, yeah. Because the president ran on those things and I believed him. Silly me. Did I expect him to get a whole helluva lot done? No. But I didn’t expect such abject fecklessness on his part to go with the predictable GOP intransigence. Tactical defeats at the hands of an unreasonable enemy can lead to strategic victory. Or not. But submission never will. Incidentally, that “rule of law” stuff didn’t require any more GOP votes than the Clinton tax plan. Would it have unleashed a sh*t storm of unusual intensity? Probably. So what? It would have been the right thing to do. And yes, Professor K, I am aware that there are big differences between Romney and Obama. But here is the thing. It took me from the midterm election of 1974 until 2008 to learn the truth of Gore Vidal’s assertion that we really have only one party in this country when you get right down to it. Michael Harrington’s personal advice to me and a bunch of other bright-eyed 20-somethings to vote Democratic as the left wing of the possible has become a sick joke as we listen to a Democrat in the White House talk unbidden about raising the age of eligibility for Medicare (incidentally during one address to us, Mike mentioned that until we had universal health care we would remain stuck in places and jobs we did not want; this was 1978). It took my voter-registering, Obama-supporting daughter only two elections, from 2004 to 2008, to learn the same thing. Ensconced as he and his family are in the 1%, the various debacles upon us won’t affect the president much, whatever the outcome in November. He will have failed upward, too.

  3. Bear in mind that for the Puritans, God was an Operating System and not a financial management and social networking program. He governed everything, and in His eyes, all nations were merely specks of dust and drops in a bucket; all nations were as nothing and were accounted as emptiness. There were no exceptions; He brought princes to naught and had no regard for the rulers of the earth.

    They knew that taking the name of the Lord for their own convenience, confirmation of personal prejudice, or political advancement, was a violation of a sacred commandment, and that if they indulged in this temptation, they would not be held guiltless. They believed that old saying that they would be judged in the same measure in which they had judged others.

    That was a difference that made a difference. Being suspicious of others, they did not neglect to be suspicious of themselves first of all.

    Of course, much later, John Quincy Adams wrote to his father after the War of 1812, “my country men look too intently to their triumphs and turn their eyes too lightly away from their disasters.” They were “rather more proud than they have reason to be” of the war they had nearly lost. Adams retained some of the Puritan conscience, but was in a minority in his own day.

  4. …but it was all part of sweeping things under the rug: let us look to the future, not the past.

    Just so long as we can sweep global warming out of sight too.
    Wouldn’t want to make anyone uncomfortable with that inconvenience.

    Things are going to be just fine baby.
    The world is your American oyster…

    (It’s like watching bacteria eat their way out to the edge of the Petri dish.)

  5. Thank you so much for this post. It has been so annoying to see Salem used as an easy metaphor and not even the right one. I can not imagine us being able to attempt to correct an injustice so quickly.

    On behalf of my many-great-grand mother-in-law Susannah Root, I thank you.

    1. If you have time on your hands … I just looked for her on wiki and she’s not there. It might be nice to get in the last word.

  6. I just wish that one of the many who discussed W’s many impeachable offenses had noted that Obama should have been impeached the moment he betrayed his oath to see that the laws be faithfully executed which was, what, eight or nine minutes after taking the oath, right? Remember, when he said he would not have the AG pursue all of W and Cheney’s war crimes, which is when I knew that we really had been fooled again.

  7. The left-wing British pundit George Monbiot has set up a fund to reward attempts to prosecute Tony Blair for war crimes. Garzon has been sidelined by his Spanish enemies for daring to reopen Civil War crimes, but he isn’t the only brave law enforcement officer in the world. Post equitem sedet atra cura.

  8. @JMG: I wish you and all the others like you would just grow the fuck up. What, nine minutes into his tenure Obama should have been trying to do anything besides get from the Capitol to the next event? Moreover, what the fuck happened when he and Holder tried even to think about trying Guantanamo inmates in regular courts? The Congress, including the Democrats in the Congress, freaked out, that’s what. He’s the president, not God, not even dictator. Be realistic. And just give some fucking thought to the Supreme Court we could expect if Romney became president. I am sick to death of people thinking the President could have just gone right in and cleaned house and done whatever he wanted, given the Congress he had to work with, not to mention all the right-wing assholes at the Wall Street Journal and on Fox and the like.

  9. With the partial exception of Germany, has ANY country ever acted as if it is sorry for its sins? (South Africa doesn’t count, because it was taken over by the victims.) Countries don’t act this way even if it is patently in their self-interest to do so: viz., Japan.

    If there is justice somewhere, I’m sure that the leaders of the US–including Obama–will receive appropriate punishment. But it ain’t gonna happen on this planet.

    1. Germany was not really all that much different. After NATO needed West Germany as a bulwark in the cold war and stopped chasing war criminals (and let’s not forget Operation Paperclip), Nazi sins during the Third Reich were quickly swept under the carpet. Everything was forgotten until the student movement of the 60s and in particular the Auschwitz trials, when children started asking their parents: “Did you know?” Fritz Bauer, the prosecutor for the Auschwitz trials, deserved a lot of credit for dragging those crimes back into the light.

      This culture of wilful forgetfulness had practical consequences, too; the courts were still packed for a long time with judges who had made their careers during the Third Reich (the exception was the Federal Constitutional Court, which had a strong majority of dissidents and former Nazi victims). A shady past was not necessarily an obstacle for a political career, either. See, for example, the Filbinger affair.

      With respect to Germany feeling sorry, Willy Brandt’s genuflection before the monument of the Warsaw Ghetto uprising was initially poorly received in Germany. It was only after Germany had been gaining international reputation as a result that the gesture (and Brandt himself) became more popular. (Oddly enough, as a resistance fighter, Brandt was one of those Germans who had the least cause to apologize.)

      1. As always, I learned a lot from your comment.

        I think it is okay though if the process takes a while. Of course having a reckoning sooner rather than later is preferable, but what matters most are justice and prevention.

        If people knew enough to be sorry for something, they probably wouldn’t have done it in the first place. It is the observers who see the effects who figure out what’s wrong or right, often. So if you’re someone who doesn’t look at the consequences, or more exactly, who *avoids* looking, you’ll never learn. And even the victims were pretty silent about it all, for a long time. (Also a human instinct.) I know a couple people who — and I’m sorry if this offends people, and I myself don’t believe it — think that Jewish people talk too much about the Holocaust. And I think they think that because they’ve completely forgotten how long it took for people to open up about it. And if they knew that, they would understand a lot more about human cruelty and why it goes unpunished so often. In the end, we humans are still animals, in all senses of that word. We are capable of horrible things, and then we react in a herd animal, and hierarchy-protecting way most of the time.

  10. While facing the nastier aspects of the Bush years would probably be good for America’s soul, one has to realistically consider that it would likely have led to Obama forfeiting the upcoming election.

    Like it or not, a huge portion of the electorate does not really have a problem with putative terrorists and/or non-white foreigners being tortured or killed if they think it’s in America’s interests. Americans haven’t ever punished presidents at the ballot box for conducting a war (assuming not too many Americans got killed, foreigners don’t count) and have rewarded many for having a bit of Cardinal Richelieu in them.

    In the end, embarrassing the nation is a worse sin in American politics than torture or killing.

    1. Am I crazy to hope that a second term might bring some sort of rebirth? What *are* his plans, actually? Does anyone know?

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