Back in 2017, I wrote about how events change the law in relation to my son’s school’s production of The Crucible by Arthur Miller and my oldest son’s portrayal of Giles Corey. The original post is located on my AttorneyNancyGreene.com website. I recently had reasons to revisit how the law in general terms as well as business law changes by comparing the British and American criminal legal systems, my thoughts on that will be an upcoming post. Before I dove into that topic, I thought it was appropriate to revisit, how and why the law changes. So, I’m revisiting that 2017 and updating that post now.
Some people think that “The Law” is a static thing. It isn’t. Laws that pass can and are overturned much like the first attempt at increasing the salary limits for the overtime exemption to reflect the increases in wages since the law’s passing to the Fair Labor Standards Act (the federal law that controls who gets paid overtime). The change was struck down. The Department of Labor had to start the rule making process all over and propose a new amendment to the Fair Labor Standards Act. The second time the changes to the law were upheld.
Law is shaped by societal events
We as business attorneys know that the law responds to and is shaped by societal events. One of the things I love about the law is that is a living breathing creature (whether dragon or dove, is likely a matter of perspective as to which side of the law you are on for any given issue). The law changes once events show that there’s a problem with the system or a matter that should have been covered isn’t. A lot of the rights Americans take for granted are relatively new.
Surprisingly, the idea of innocent until proven guilty is a relatively new phenomenon in human history. It didn’t become the stalwart of American law until 1895 (!) when the Supreme Court ruled in Coffin v. U.S. that the lower court made a mistake when it wouldn’t instruct the jury
“that there cannot be a conviction unless the proof shows guilt beyond a reasonable doubt does not so entirely embody the statement of presumption of innocence.” The right not to incriminate yourself in criminal activity is derived from the 5th Amendment to the Constitution. The “right to shut the heck up,” in other words, is only a few hundred years old in American law. The requirement on law enforcement to tell you that you can “shut up” wasn’t established until Miranda v. Arizona made forced confessions inadmissible in court in 1966. Less than 100 years ago, the Supreme Court set the standard to keep pseudo-science or other junk science out of the courtroom in a case over whether lie detector results where “evidence.,” and again in Daubert v. Merrell Dow Pharmaceuticals.
What happened before?
So, what happened before all these “rights” were codified into American law?
Well, things like the Salem Witch Trials.
Those “trials” look nothing like today’s American criminal trials. And thank whatever you believe in for that. I started thinking about how terrible events, like the Witch Trials, change the law when my son’s school produced The Crucible.
The Crucible is Arthur Miller’s reimagining and fictionalization play about the reasons for and drama behind the Salem Witch Trials. For a six-month period starting in January 1692, more than 100 men and women were accused of witchcraft in and around Salem, Massachusetts. Nineteen people were hung at Gallows Hill. And Giles Corey, one of the two men killed during that madness, was pressed to death. Yup. The court made him lay down, placed a board on his chest and then piled stones on top of the board to coerce him into consenting to being tried as a witch.
The Giles Corey case
In 1692 being a witch a crime punishable by death. There was no presumption of innocence. Just the opposite. Guilt was presumed. During the madness of the Salem Witch Trials an accusation was essentially a death sentence unless you confessed and disavowed all future dark arts. Defendants had to prove they were innocent in the face of “spectral evidence.” Now, spectral evidence (seeing ghosts or other spirits who told you that someone was a witch, and testifying about it) wasn’t supposed to be enough to convict, but corroborating evidence bore little resemblance to today’s standards for evidence. Prior misconduct, having “poppets” (also known as dolls), having birthmarks, being insensitive to being pricked by a pin, and not being able to say the Lord’s Prayer were all corroborating evidence. On that “insensitivity to being pricked by a pin” test, remember, it was the “witch-finder” who controlled how much pressure was applied to that pin. A confession obtained by torture had to be later reaffirmed by the defendant. But if the defendant recanted, then she was tortured until she confessed again.
With that background let’s turn our attention to the Giles Corey case. Corey wasn’t a necessarily good man. In his youth, Corey was convicted of beating a servant to death and paid a fine, he was a thief, and accused of setting a neighbor’s house on fire. But Corey seemed to have settled into a more respectable role with his marriage to Martha and their application to become members of the church in 1661. Martha and he were outspoken critics of the witch trials. So, maybe it’s not too surprising they became its victims.
Corey could not be tried unless he entered a plea. A guilty plea risked a death sentence, but guaranteed a loss of his lands and holdings. A plea of innocence meant torture to get a confession, an attempt to disprove “spectral evidence,” a nearly guaranteed guilty conviction, and death by hanging. All grim choices. If Corey remained silent even if that silence resulted in his death, his sons would inherit his property. In turn, he was sentenced to pressing to force him to enter a plea. Remember if he played the game and entered a plea, his lands were forfeit, and likely one of his accusers would have received his property.
Corey is famously quoted as saying only “more weight” in response to torture, and likely to end his suffering more quickly. He was buried in an unmarked grave despite never having been convicted of being a witch. Corey was 80, although some sources say 82, years old at his death on September 19, 1692, after two days of pressing. The Witch Trials ended shortly after Corey’s death. His sons inherited his property. So, while Corey lost his life, he won a victory, of a sort.
We look back on these horrific events with the smugness of our century. But, truth is, without the protections and rights we now enjoy because of terrible events like the Witch Trials, it could happen again. Corey was tortured and killed because he kept silent in the face of a “trial” he couldn’t possibly win. Evidence that would now be rejected for its lack of reliability and scientific basis was enough to convict in 1692.
All the foundation of the American legal system we now take for granted from our lofty position in 2022, just didn’t exist in 1692. And they could be gone or made unrecognizable today by changes in the law created by legislative whim or special interest group lobbying.
This changeable nature of law means that “bad” laws aren’t forever. It also means that laws that protect what we consider “fundamental” rights can be altered, limited or even reversed. We need to advocate for changes in the law when those laws are unfair or create an unfair result. It is also our duty and responsibility to safeguard the laws that protect us.