Did Mass. Have the Legal Authority to Pardon Witches?

Cecil's Columns/Staff Reports
1

Concerning Cecil’s Salem column, I have just one question: Did Massachusetts have the authority to pardon the alleged witches in 2001? My reasons for suspecting they didn’t are twofold: (1) They would be deciding on a religious issue, and the U.S. Supreme Court has ruled on numerous occassions that national and state govts. getting “entangled” with religions violates the “Establishment Clause” of the U.S. Constitution. And perhaps more likely a good point: (2) in the 17th Century, Massachusetts was technically part of Britain, so it should be the British government that pardons them, no?

My point seems to me to be such a plain and obvious one, I wonder why no one has brought it up before. I probably should have done a more careful search of the boards before I posted this. But I am sorry. I didn’t :). In any event, if someone has already brought up this point, kindly leave a link here. Otherwise, my question stands as it is.

Thank you in advance to all who reply :slight_smile: :slight_smile: :slight_smile: :slight_smile:

2

Dont be too sure, Id have to go to a library to check it out but the books I used in one of my paralegal courses had me checking some of the earliest court cases and a reference I shepardized used a court case from 16-something[I want to say 1664, but I am not 100% certain now, it has been a few years since I randomly browsed the library.]

Our laws are heavily based on english common law, and we freely roam around all the cases that were ever tried for precedent.

3

The defendants were convicted under a criminal law against witchcraft, not some kind of church rule, so I don’t see a separation of church and state issue. It was, I’m pretty sure, a law passed by the colonial legislature, not one passed by Parliament in London.

The Massachusetts constitution (Chapter VI Article VI) provides for continuity of colonial laws.

4

Moreover, a “pardon” is not, technically, a judgment of innocence, although it is sometimes used so to expedite matters where a retrial would be inconvenient.

5

Technichally they weren’t part of Britain. Hence the lack of parliamentary representation. Hence the American Revolution and all that followed. :slight_smile:

6

I definitely agree that the defendants were tried under a civil criminal complaint, not under canon (church) law. A question outstanding is whether the statute under which they were tried was the English witchcraft statute of King James I (1604) or the Massachusetts statute of 1641. I am guessing it was most likely both (the few complaints I have seen did not have that level of specificity).

7

You can be a part of a nation and not have any parliamentary (congressional) representation. Just ask Puerto Rico, Guam, USVI, American Samoa…

8

Technically, they WERE part of Great Britain. That’s why parliamentary laws applied to them.

This is as opposed to various parts of the personal realm of the royal house of England, which are not subject to Britain’s parliament.

9

Thinking about it another way, is there anyone who would have standing to challenge the legality of a pardon of a long-dead person.

In essence, what the pardon is a meaningless proclamation. It seems little different than a certificate from the Governor declaring today Straight Dope Message Board Day. The pardon does not affect the legal rights of any living person, and nothing more than the historical perception of some dead ones. (This might be different if it affected inheritance or other rights.) Because it doesn’t affect anyone’s rights, I doubt that anyone would be able to be able legally challenge the pardon.
In other words, because this appears to be legally a “who cares” action, discussion of the point is merely academic.

10

No, Parliament in its imperial capacity has the power to legislate for overseas possessions that are not part of the United Kingdom. It also has the power to legislate for the bits and pieces of feudal possessions still kicking around, such as the Channel Islands and the Isle of Man.

11

Whether it was under the English statute or the Massachusetts statute wouldn’t have made a difference to the issue of a pardon.

Under British colonial law, settlers were considered to have brought English law with them, as part of their birthright as true-born Englishmen. The English statutes were considered to be part of the statute law of the colony, which were then administered through the colonial courts. It’s called the doctrine of the reception of English law. It’s still part of the law of many Commonwealth countries, such as Canada.

For example, Louis Riel was tried and convicted of treason in Regina, North-West Territories, in 1885. The statute under which he was charged was the English Treason Act, 25 Edw. III St. 5 c. 2 (1351). That statute had been received as part of the law of the North-West Territories, and was administered through the court of the stipendiary magistrate who conducted the trial.

So even if the alleged witches were tried under the English act against witchcraft, that English Act would have been considered part of the law of the colony of Massachusetts, administered through the Massachusetts colonial courts.

The pardon power was similarly decentralised by the Imperial government. The document setting up a colony often contained some sort of delegation of the royal prerogative of mercy to the local governor, although there was considerable variation in the actual mechanics of this delegation, depending on the nature of the colony (Crown colony, mercantile plantation, etc.). If the Massachussetts governor at the time of the trial had the legal power to pardon, then I would assume that power would have been passed on by the revolution to the successor republican government of Massachussetts.

Again using the example of Riel, upon his conviction under the Treason Act, 1351, there was an application to the federal government to pardon him. The application went to the federal Cabinet because the Governor-General of Canada exercises the Crown’s prerogative power of pardoning for criminal offences committed in Canada, on the advice of the federal Cabinet.

To put it another way, the power to pardon is always considered to be one aspect of sovereignty. If the OP is correct and only Queen Elizabeth can issue a pardon for the Salem offences, it would mean that the British Crown still retains some limited sovereignty over Massachusetts - I don’t think John or Sam Adams would approve. :wink:

12

The Supreme Court has ruled that accepting a pardon is an admission of guilt. Burdick v. United States

13

As noted by me in a different thread, it is questionable whether or not the decision in Burdick is still valid, or at least, that the Court would continue to apply it in the present day. Burdick had an interesting fact set. :dubious:

14

Yes, I should have been more careful: Parliament can in a pinch legislate for them, although there has been an assertion that the ability to legislate for them against their will has been lost.

15

Not to mention that the court didn’t rule that accepting a pardon *was * an admission of guilt. It ruled that one could reject a pardon because it implied that the person was guilty. A subtle distinction, to be sure, but a distinctino nevertheless. In fact, if *Burdick * said that accepting a pardon *was * an admission of guilt, 28 U.S.C. 2513(a)(1) wouldn’t make any sense:

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=28&sec=2513

16

To elaborate on my earlier point, see the Treaty of Paris, 1783:

Since His Majesty King George relinquished all claims to sovereignty over Massachusetts, both for himself and his successors, Her Majesty Queen Elizabeth would be in breach of the Treaty if she purported to exercise the sovereign power of pardon with respect to criminal convictions that occurred in Massachusetts.