Of Legal History, Common Folk and Story Writing


A Bellarmine Jug, or “Witch-bottle”

by Elaine Forman Crane

John Hammett, a Newport clerk, schoolmaster, and wife beater, may not be the most typical early American, but his experience suggests how braided law and life actually were in the era. Before his own brush with the authorities as an abuser, Hammett was considerably involved with routine legal matters as clerk of various governing bodies: the Assembly, Town Council, and Probate Court. In these roles he appears to have been a well-respected official who oversaw routine transactions that were windows into the personal lives of others. Who knew that behind closed doors at home he savagely assaulted his wife? He “intended to kill her,” he admitted to a friend a day after kicking his wife “on the Breast.” Interred overnight after the attack, Hammett paused the next morning to chat with friends about the previous evening’s adventure before going about his usual business.

This historical shard is very telling even if it only pinpoints a few isolated moments in one small community. John Hammett’s story is important because it reflects the texture of early American life through intimate incidents involving ordinary people. The episode concerning Hammett shows, on a very personal level, how matters with legal implications saturated everyday activities and how often people’s lives were woven together through them. On the one hand, the public Hammett was a man who evaluated and signed off on legal documents. On the other, a private Hammett violated the law, and his male friendship network protected him from severe sanctions. This is only to say that on any given day, early Americans used legal principles in various and sometimes contradictory ways. They drew on the law when they paid rent, brewed ale, sold pelts, printed newspapers, bought slaves, spat profanities at each other, allowed a ghost to testify, or judged a witch.

Witches, Wife beaters, and Whores is a book I did not expect to write—at least not without an epiphany to guide my quill. Nevertheless, as cases about people and their legal predicaments began to capture my attention, some work about common law and common folk in early America started to take shape in my mind. It would take considerably longer for a thesis to emerge that would successfully tie these disparate stories together.

By the time legal history engaged my interest, decades of reading and research about the peoples of early America had already revealed how deeply concerned they were about law and the way it affected their lives on a daily basis. Indeed, the more I read, the more I realized that their knowledge of the legal process was surprisingly extensive. It also became clear that seventeenth and eighteenth-century Americans knew their rights long before “Law and Order” turned the home into a pseudo law school. This was confirmed time and time again as I combed court records and plowed through an array of documents about a unique seventeenth-century matricide case involving the Cornell family. As my research progressed, other cases caught my eye and I put them aside for possible use as separate articles, since an entire book containing unrelated legal stories might, I thought, shortchange cohesiveness. Even if such accounts were all based on court cases, they were still separated by time, space, and topic. As a group they lacked—or seemed to lack—a unified storyline that would link them together in a single volume. And yet, they were fascinating accounts, even if initially I only had the bare essentials of each case.

As someone who went into academia to support a writing habit, I had always been attracted to a narrative style, something I initially suppressed in favor of the tedious writing required of dissertations. Once beyond the anxieties of tenure and promotion, however, I felt safe enough to approach historical writing with a little panache in the hope of making this form of non-fiction more enticing to the general reader. The results of this effort are my two most recent books, both written in a narrative style. The matricide case, Killed Strangely: The Death of Rebecca Cornell, as well as Witches, Wife Beaters, and Whores, have not only permitted literary experimentation, but have allowed me to join the legal world of my father, uncle, husband, and daughter—not as an attorney, but via tales about early Americans and the law. In the initial stages of Killed Strangely, I assumed Rebecca Cornell’s death would be the first chapter of a book about domestic violence—that is, until it took on a life of its own. It was only after its completion that I decided to forge ahead with a single volume composed of six legal stories and worry about their relationship to each other down the line. If Scarlett could relegate problems to some vague tomorrow, so could I. Somewhat naïve about the importance of titles, I initially called the projected book Legal Matters. But what I took to be a clever double entendre, a prominent New York jurist pronounced boring. Admittedly, a book entitled Witches, Wife Beaters, and Whores was more likely to catch the eye.

The book relies on microhistorical accounts—a form that probes deeply into topics limited by time and to only a few characters, such as case of John Hammett. Research for each chapter took time and involved travel, but it was rewarding to piece together the lives of litigants, victims, and a supporting cast of characters, all of whom were frozen during a particular moment of time. Three of the chapters took me to New England, one to the Eastern Shore of Maryland, and another to Bermuda. Translating the research into stories was also time consuming, but eventually six narratives took form. The introduction was a longer process because it had to unify narratives unrelated by geography, chronology, or topic.

My original design for the introduction was twofold: it would present the deceptively simple underlying thesis that law was a matter of great interest to the original settlers and that their knowledge of the legal process was unexpectedly ingrained. All of this would be shown through the case studies. The introduction would draw the cases together by explaining what they had in common, despite their geographical and chronological differences. Diverse settlers, in various ways, turned to law in order to protect themselves and stabilize their lives. Thus, the introduction would emphasize commonalities by showing how each case illustrated the ways in which Euro-American law shaped everyday life as it related to commerce, property, family, race, and gender.  This approach seemed reasonable to me, but outside readers and my editor at Cornell University Press, Michael McGandy, encouraged me to look at the chapters from a different perspective. They were right. Once drawn to my attention, I saw that it was the discrete nature and array of cases (not their inherent similarities) that confirmed my initial premise about the importance of law to early Americans. To outside readers coming upon the material for the first time, it was the startling range of innovative legal maneuvers that captured the essence of the book, not only the content of cases or the formal and recognizable legal procedures. In short, differences were just as captivating as similarities.

At the same time, I hope the introduction does justice to the basic premise of the book: law matters. Maybe it is a peculiarly American “thing,” but I strongly believe that there is something historical, cultural, and/or subliminal that compels us to “go to law” to resolve tensions and conflicts between and among individuals. The chapters demonstrate that sometimes these solutions take place in a courtroom; sometimes issues are settled privately. Sometimes authorities are involved; sometimes they are absent. But in each chapter of Witches, Wife Beaters, and Whores, common folk respond to and act upon longstanding legal principles to justify some action or to solve a problem. This is precisely why the common elements of the cases as well as differences among them resonate so powerfully as themes. Even when people apply unofficial sanctions in pursuit of a resolution, they generally do so because they feel formal bodies have perpetrated an injustice, or because the authorities do not apply the law equally or invoke it at all. Thus, my nod to what I call “folk law” may be defined as responses by individuals or groups to particular or unique situations, all of which are contained under the umbrella of informal law. In this way ordinary people made law, and perhaps we should think of such folk law as equity law beyond the reach of equity courts. In any case, because of the emphasis on common folk, each chapter provides fresh insights into familiar topics, whether about slander, witchcraft, domestic violence, slavery, debt, or ghosts.

After being sent back to the drawing board more times than I like to remember, I eventually limited the introduction to three topics that illustrate how legal culture is engaged across the chapters: the importance of property, knowledge of legal “rights,” and the influence of gossip on honor. Space constraints prevented the inclusion of three other subjects that are also embedded in every chapter: gender dynamics, the effects of alcohol, and the consequences of courtroom battles on children.

In addition to property, rights, and honor, the chapters confirm the ubiquity of women whose testimony, conduct, and manipulation of the system gave them considerable clout within a legal setting. Yet if Christian Stevenson, Comfort Taylor, Hannah Dyre, Mary Harris, and Maria Boot link the essays through gender, it is also worth noting that sex—as distinguished from gender—is central to each story as well. Sexual slander as metaphor condemns women in the chapter on New Amsterdam. In the chapter on domestic violence, William Dyre found his soul mate in Desire Dyre, his sister-in-law, and because he “loved her as his own life” he bedded her and murdered his wife. Both homosexual and heterosexual fantasies dot the pages of the witchcraft narratives, while the physical searches of genitalia and other erotic zones offer more details than we ever expected to know. Illicit sex is central to “A Ghost Story.” The chapter is based on the affair of a Maryland couple, Thomas Harris and Ann Goldsborough, during which time the pair produced four illegitimate children. While their sexual liaison was not even mentioned in the trial narrative, the contested issue involves the right of illegitimate children to inherit property from their father. But if consensual sex dominates the Harris-Goldsborough affair, an allegation of attempted rape is the focus of the chapter about Comfort and Cuff. In almost all of the cases, testimony is packed with sexual subtleties.

The use and abuse of alcohol in early America also shadows the chapters. In some instances, alcoholic consumption took place in a social setting; in others strong drink was a prelude to violence or a precursor to strong language. Samuel Banister routinely offered Dr. Brett “a Bowl of Punch,” as they shared the latest gossip. And John Banister, Samuel’s brother, did not let the imperial wars of the 1740s interfere with his ability to stock his wine cellar with a taste of France. It is the connection between alcohol and violence, however, that links these chapters most conspicuously. Elizabeth Alcock’s husband was “in drink” before he beat her, and Comfort Taylor “smelt of Negro Cuff to see if he smelt of Rum,” in an effort to blame the alleged attempted rape on intoxication. John Middleton, a convicted witch on the brink of execution, admitted to “Drunkenness…for many years” in his last confession. More than a few slanderers attributed their uncontrolled tongues and fists to a drunken spree. Thus, five of the six chapters allude to alcohol in connection with social, commercial, or tragic events. The law regulated the sale of rum and other brew, but it had no way of preventing their abuse in a society where the day often began with a pint of beer.

If children are not always central to the documents, their presence is often implicit in the circumstances surrounding a case. The details of sexual slanders might be lost on young folk, but if a woman was labeled a “whore” and her child a “whore’s son,” she might be subject to some awkward questioning by her offspring. Children were frequently the objects of alleged witchcraft, and more than one child suffered “strange fits” after contact with the Bermudian, Christian Stevenson. Domestic violence took a toll on children, especially when they were forced to flee with an abused mother or orphaned after a mother’s murder and a father’s execution. Comfort Taylor’s daughter could not have avoided the gossip about her mother’s attempted rape accusation, any more than the illegitimate children of Thomas Harris and Ann Goldsborough could ignore their own status as bastards.

My experience with Witches, Wife Beaters, and Whores suggests that microhistory has the capacity to narrow the gap between fiction and non-fiction. This is not to say that the six stories contained in the book conflate the two forms, since I consider docudrama an unprincipled hybrid. Nevertheless, an abundance of evidence about obscure people and revelations about seemingly inconsequential incidents offer opportunities to engage readers on a level that often eludes traditional historical accounts. Witnesses in court cases speak not only for the record but to the historian. These witnesses don’t always tell the truth, but that is their fiction, not one perpetrated by an amanuensis. The point is that such testimony often evokes the same reaction as the fictive words of a novel. It would be hard to believe that John Hammett’s cavalier comment that he “intended” to kill his wife elicits anything but negative feelings about him. Furthermore, early American common folk remain largely unknown to modern readers, a fact that offers still another advantage: the audience must read on to discover the outcome of the story. Will Maria and Nicholas Boot reconcile, or does her admission that “she has not slept with him for a long time” hint that the breakup of their marriage is inevitable? If so, it is not impossible that the next incarnation of Witches, Wife Beaters, and Whores will be a reality TV series starring a dispirited Maria confronting her loss of youth.

About the Author:

Elaine Forman Crane is Professor of History at Fordham University. She is the author of several books, including Killed Strangely: The Death of Rebecca Cornell and Witches, Wife Beaters, and Whores: Common Law and Common Folk in Early America.