Return Of The Witch

It used to be that people could be disposed of by being convicted as witches. However, to lend the appearance of legitimacy and authenticate and formalize this, those orchestrating and conducting “witch trials” determined “evidence” and “procedures” for it. “Dunking” or “swimming” a witch was one such 17th century practice. At the same time that the Puritans rose and declined in early United States settlements in the Massachusett’s Bay and nearby colonies, witch trials occurred in both America and England.

Witchcraft was a “crime.” Rules for “evidence” were not yet formalized at that time. Debate arose about what constituted “proof.” No doubt, these “witches”, these “criminals”, were guilty, but a system of establishing it was a matter of opinion. “Proof” of things supernatural varied widely among judges, writers and the broader population. England came up with a great strategy, the practice of “ducking” a “suspected” witch. It was known as the ordeal of the cold water, or judicium aquae frigidae, and the result as judicium dei. These were crimes that were simply not amenable to other forms of judicial proof, for which there was no witness. Trials usually started with the accused taking an oath of innocence. It was “standard” to question a suspect afterwards before any charges were stated. This was followed by a “trial by oath”, otherwise known as compurgation, by a number of the accused’s “peers” or “equals.” At the same time, clerics accused of sins or crimes had immunity, with the “oath of purgation”, granting that any evidence of guilt gave the accused canonical “license” with absolution and a non-guilty judgment.

Everyone knew those accused were guilty, and that the accusers could do no wrong. Since the accused witch’s oath of innocence was always taken to be unreliable, evidence was needed that was absolute. The ordeal of the cold waters offered that because it was accepted by many people at the time and consistent with their beliefs. The “dunking” test was deemed a “good help” in confirming witchcraft accusations. Since witches dealt with the devil, and thereby refused the benefit of baptism, and water was an element of baptism, it would “spit” them out and prevent them from sinking, refusing to receive them, and therefore the test would demonstrate for all present their guilt. If the accused sank, they were innocent, but they often drowned.

The administration in witchcraft proceedings of “ducking” or “swimming” a witch was “often a thinly concealed act of mob justice.” Up to 5,000 people at a time are recorded as gathering for such acts of justice in “proceedings.” Over time, people simply converted to lynching. The “court of public opinion” ruled, and those that held that witchcraft was no justice at all and the proceedings for it barbaric were in the minority. Gossip generating “public opinion” with stories and narratives that reflected each other in the “evidence” of a witch’s guilt preceded mob-justice that resulted in the loss of many innocent lives. Even though “innocent until proven guilty” received a nod, the accused was already condemned, in public opinion, which was often overwhelming and therefore could not possibly be wrong, and the weight of proceedings quickly shifted to the accused assumed guilt until proven innocent, a horror show for the accused and whatever minority, if any, might be in their support. The allegation of being a witch was enough, and since it might be true, inquiries and a search for the truth centered on this fact, predictably leading to more “evidence” and testimony of the same with a biased tribunal and set of authorities just as prejudicial as the mob formed awaiting the spectacle for its anticipated schadenfreude.

Our jury system arose from this. The Framers and the heroes of the American Revolution were the descendants of these popular spectacles and administrations of pseudo-justice. While lending the appearance of legitimacy and “official” proceedings, the Framers were cognizant of how majority-rule could lead to oppression of the minority and individual. In a democracy, the people rule, and in a pure democracy, the majority always gets its way, with what is unpopular always being outvoted. Any minority can’t count on any protections. The “court of public opinion” determines that only those rights the majority deems appropriate will be respected, or even protected, under the law. Individualism is defeated by conformity, fear of the authoritarianism that dominates, and individual rights, freedoms and expressions die with it. Rather than give in to the oppression of the majority, the US Constitution attempts to strike a delicate balance between majority and minority rule, conceding that the government cannot function by expecting a unanimous decision on every issue, but striving to take the rights of the minority and the individual into account. This is the spirit of the stacked and staggered layers of government that represent the United States and its Constitution.

While everyone has a sense of their own rights and freedoms, the Framers were broader in scope and incorporated gauging how human rights and freedoms were extended to others and guaranteed for all. Those espousing what is popular need no protections since they are aligned with the majority. The Bill of Rights provided for the minority, especially citizens suspected of or charged with crimes under the Fourth, Fifth and Sixth Amendments. For example, the limitations on “searches”, the right to indictment by the Grand Jury, “pleading the Fifth” with the right not to testify against oneself, the guarantee of due process of law in any prosecution, the right to counsel, and the right to a jury trial. The Fourteenth Amendment is intended to protect citizens from violations of due process of law while also ensuring equal protection under the law. The Thirteenth, Fifteenth, Nineteenth, and Twenty-Sixth Amendments were adopted to provide
explicit protections to racial, gender, and age-based minorities, which promotes the general welfare by securing a functional government and community life while “still protecting the rights of citizens when they find themselves in a minority segment of the population.”

Our own sense of justice is not enough. It is how we extend justice to even what we deem the least of persons, even those we hate or despise, or disagree with the most, that guarantees human rights, freedoms and justice for all members of our society. In conclusion, consider this recent quote from the United States District Court of the Eastern District of Tennessee, dated October 2023: “The Courts must decide these cases even in the face of popular sentiment against the litigants or the causes they espouse. Courts must be faithful to the law and the Constitution, not majority opinion or sentiment.”