Defamation Takes A Holiday: Slander And The Salem Witch Trials

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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Hypothetical: You go out for a nice stroll one Halloween only to have a neighbor emerge from his house with a pitchfork and accuse you of being a witch in front of the whole village. For the sake of argument, let’s say you are not actually a witch. Can you sue for slander?

For centuries, a civil defamation lawsuit has been available as a remedy — and often the best defense — against accusations of witchcraft. However, the popularity of such lawsuits as a response to witchcraft accusations has been inconstant, waxing and waning depending on a number of sociological and legal factors. Historians are not in total agreement as to what those factors are. However, everyone agrees that in Salem, Massachusetts, in 1692, the civil defamation lawsuit took a very costly holiday.

Slander and Witchcraft Before 1692

In England, acts of witchery were considered both a felony and a blasphemy. Therefore, a false accusation of witchcraft was doubly defamatory, because it labeled the accused as both a criminal and a heretic. Although available records show that hundreds of people annually (mostly women) were indicted for witchcraft in England all the way up to the 18th century, it could have been a lot worse. The availability of civil law suits for slander, as well as the healthy skepticism of magistrates, served to discourage many accusations and contributed to a relatively low witchcraft conviction rate.

As in England, accusation of witchcraft were not uncommon in colonial Massachusetts prior to 1692, but such accusations were more likely to result in the accuser being found liable for slander than the accused being convicted as a witch. In 1650, Erasmus James brought a defamation action against Peter Pitford, after Pitford had claimed he saw James’ wife turn herself into a cat. Pitford was adjudged liable for slander and found himself several shillings poorer. The year before that, a Magistrate ordered Mary Parsons of Springfield to be whipped and lectured at, and to pay money damages to the Widow Marshfield, who Parsons had falsely accused of “witching away” some missing wool. Court records indicate that accused witches were five times more likely to win than to lose a defamation lawsuit against their accuser. The most common remedies ordered by magistrates were forced apologies and damages up to £5 (which could easily equal a year’s income for a 17th Century denizen of Massachusetts).

1692: Defamation Takes a Holiday

But when the accusations of witchcraft began flying fast and furious in Salem village (now Danvers) in March 1692, something weird happened: nobody brought any defamation lawsuits at all, even when it was literally a matter of life or death.

Why? Was it that folks out in the boondocks just didn’t know about the option? Nope, Essex County (of which Salem was a seat of government) saw at least forty slander cases between 1672 and 1692. Ok, if not that, perhaps the knowledge and resources necessary to bring a defamation lawsuit were just unknown or unavailable to these particular defendants? Nope, Rebecca Nurse was not particularly poor, and in fact her family had won defamation judgments in the past. Elizabeth Dicer, another accused witch, had herself been the defendant in a defamation trial thirteen years earlier after she accused someone else of witchcraft. But it does not appear that these women, or their families, or anyone else considered bringing a slander suit in 1692.

Some historians advise us that we should not be surprised about the disappearance of civil defamation claims during this brief period for a whole host of reasons.  Professor Jane Kamensky, author of Governing the Tongue: The Politics of Speech in Early New England, reports that even before 1692, prosecution for speech offenses generally were on the decline as the protection of the courts became increasingly focused on the theft of money and property, as opposed to reputational harm. But obviously, that alone can’t explain it. This was also a time of enormous upheaval in Massachusetts. The Glorious Revolution of 1688 and a related revolt in Boston in 1689 had left the colony without a legal charter or official government  and, just around the same time, refugees began pouring in from the front lines of King William’s war, only 70 miles away, bringing with them disease and fear of Indian raids.

Against this hysteria-invoking backdrop, the previously cynical and skeptical New England Magistrates became emotionally receptive to accusations of an imagined diabolical force. Kamensky explains: “[A]s their desire to hear an explanation for their ills overwhelmed their ability to articulate social and verbal order, members of the Court of Oyer and Terminer took the devil’s word for what had gone wrong with Massachusetts.”

But that still doesn’t completely explain why the accused didn’t sue. Richard Weisman, in Witchcraft, Magic and Religion in 17th Century Massachusetts, perhaps completes the picture by noting that:

In defamation suits prior to Salem, plaintiffs were frequently able to mobilize formidable support against their potential accusers in anticipation of a witchcraft accusation. Moreover, the accuser was often someone of low social standing in the community. In the Salem trials, however, accusations occurred so suddenly and unpredictably that suspects had little opportunity to avail themselves of these preventive measures. Furthermore, the accusers were supported by the highest civil authorities in the province. Even if potential suspects had somehow managed to file defamation suits, the probability of a favorable decision would have been extremely low.

Author Stacey Schiff, in The Witches: Salem, 1692, suggests one more depressing piece to this puzzle, by observing that some defendants who in another time may have sued for slander probably came to the realization that it was much safer in this anarchic environment simply to admit to demonic influence and then join the accusers by pointing the finger at other innocents. They surrendered their reputation, but saved their skin.

A Worthy Gentleman of Boston

It was not until October 1692, seven months after the accusations began, that things finally started to calm down. What ended the madness?  The simplest explanation is political. After Massachusetts finally got its new charter, it also got its new governor, William Phips, in May 1692. Phips’ first and only priority at the time was to fortify Maine against the French and their allies. Phips left Lieutenant Governor William Stoughton, a puppet of the Mather clan, in charge of everything else. When Phips returned in late September, he found to his horror that Stoughton had presided over the execution of twenty fellow citizens on flimsy accusations of witchcraft, and that many more accusations were under consideration, including one against the Governor’s wife.

The Court of Oyer and Terminer was dissolved by Phips on October 12, 1692. Nobody else was executed, and the ongoing proceedings eventually came to an end by early 1693, much to the disappointment of the odious Stoughton, who had already ordered a fresh set of graves dug for a new group of accused innocents even before they had been condemned.

But there is one more possible explanation of — or at least contributing factor to — the end of the Salem Witch Trials: the reemergence of the civil slander suit. Boston cloth merchant Robert Calef, critic of the proceedings in Salem, wrote a contemporaneous account of them in More Wonders of the Invisible World. Calef reports that in October 1692, a “worthy gentleman of Boston” was accused of witchcraft by a resident of Andover (the actual location of many of the “Salem” proceedings). The accused gentleman immediately responded by lodging a “thousand pound action for defamation” (a ruinous sum) and advising the accuser to get his evidence ready for trial. Not surprisingly, the gentleman’s accuser changed his mind, and shortly thereafter the accusations of witchcraft dried up altogether.

Postscript

Can an accused witch still sue for slander today? You may be surprised to hear that the answer is probably yes. In the centuries that followed the events in Salem, the law eventually ceased to recognize the existence of witches, and therefore it was no longer a crime, at least in England and the U.S., to practice witchcraft. Since then, Courts have been inconsistent as to whether it is defamatory to accuse another person of witchcraft.  A New York Court in 1900 took it as rote that once witchcraft was no longer a crime, an accusation of witchcraft was no longer slander.  But in 1896, in Oles v. Pittsburgh Times, a Pennsylvania Court held that, because a considerable number of people in the community still believed in witchcraft, a jury could grant defamation damages to a plaintiff accused of being a witch in the local newspaper.

If the Pennsylvania Court in Oles was right, we ought to see far fewer viable witchcraft defamation suits today, over a hundred years later, because (putting aside the emergence of the Wicca religion), presumably even fewer people believe in witches now. Nevertheless, defamation suits based on accusations of witchcraft continue to pop up in the U.S. Courts in a variety of contexts, including family squabbles, employment disputes and ecclesiastical power struggles. In 2005, the Court of Appeals of Tennessee reversed dismissal of a slander suit brought by an ousted Baptist Pastor who had been called a “witch doctor.” And, as recently as April 2016, a defamation suit based on a series of nasty assertions between two siblings in the midst a probate dispute, including a brother’s alleged accusation that his sister was “using witchcraft” against their aging mother, survived an anti-SLAPP motion to strike in a California state court.

This post is indebted to several (far more) scholarly sources, including: Stacey Schiff, The Witches: Salem, 1692, Little, Brown & Company (2015); Jane Kamensky, Governing the Tongue: The Politics of Speech in Early New England, Oxford University Press (1997); Peter Charles Hoffer, The Salem Witch Trials: A Legal History, University Press of Kansas (1997); Brian Levack, Possession, Witchcraft and the Law in Jacobean England, 52 Wash & Lee L. Rev. 1613 (1996); and Richard Weisman, Witchcraft, Magic and Religion in 17th Century Massachusetts, University of Massachusetts Press (1984).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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