Juridical “Joy”: Law,Affect and the Anecdote

I.  A Particular Legal Anecdote

Working across law, history and culture, I wish to consider a curious legal anecdote about Justice John Holt (1642–1710), an anecdote that claimed to mark the “end of witchcraft,” but actually marked a number of significant shifts. An analysis of this anecdote reveals how major cultural shifts such as the rapid development of literacy, of science and of urban life can be set in a simultaneously affective and legal frame and associated with the “progress” that has come to be seen as the hallmark of Enlightenment English law. English law functioned to bring a community together, to unite disparate regional, economic and cultural groups through communicating various “truths” about Englishness across the populace. These truths could be disseminated through all the official mythology that surrounded the law, through statutes and law cases discussed in newspapers and coffeehouses, and through the circuit courts that allowed Westminster Hall to spread its influence across the country. But as this anecdote about Holt indicates, they could also be spread through affectively evocative anecdotes, told and retold, printed and reprinted in many different venues.

That Holt would become fuel for conversational anecdotes collected more than forty years after his death is somewhat of a surprise. Famed not for any monumental legal treatises but for his solidly-reasoned case reports and even judicial temperament, traits evident even in the rather weak case-reporting records of the period, ¹⁵ in 1689 he was appointed Chief Justice of King’s Bench where he became a jurist as influential as Matthew Hale and William Blackstone. Holt, for instance, is renowned for his oft-quoted position on slavery, “As soon as a negro comes into England, he becomes free,” which whether a true statement of the law or not lent a great deal of authority to the abolitionist movement of the 1790s and after. Much of his career was devoted to the struggle to bring the law up to speed with the rapid pace of capitalism during this period, as he strove to develop law targeted to cope with newly sophisticated business transactions. He has been credited as well with remaking the law of seditious libel. But punctuating what seems a rather modern and even dully narrow legal career, he was also well known for his highly individualistic and principled take on witchcraft. ¹⁶

The affect-saturated anecdote I address, one that references “courage,” blushing, being struck “silent,” and “zeal,” among other emotions, took up witchcraft, a societal issue of extreme affective value. Witchcraft was an overdetermined religious-political issue at the turn of the eighteenth century, one that tended to be the focus of anxious agitation on both legal and popular levels. The agitation evoked by witchcraft was profound: William Perkins, writing a century earlier, had said that a witch is “the most notorious traytor and rebel that can be … For shee renounceth God himselfe, the king of kings …” ¹⁷ Witches were believed to have power over life and death of humans and animals and over all sorts of other natural processes. They could cause illness, but also spoil the brewing of beer, keep cream from turning into butter, and prevent cows from giving milk. ¹⁸ A disbelief in witches implied a disbelief in the devil and this, in turn, implied that one did not believe in God. As late as 1692, Henry More praised those who believed in witchcraft because reports of witchcraft could “awaken” the “benumb’d and lethargic minds” of those “who slight religion and the Scriptures, because there is such express mention of spirits and angels in them, things that their dull souls are so inclinable to conceive to be impossible.” ¹⁹ Thus a refusal to believe in witchcraft’s existence marked the non-believer as a non-Christian, ²⁰ and perhaps worse also as a Whig. ²¹ Given the religious and political stakes, judges felt pressured by “overwhelming popular frenzy” to punish accused witches. ²²

If one hopes to demonstrate a narrative of progress, drawing a rising line from the superstitious Justice Matthew Hale (1609–1676) through Holt and on to what one would have hoped would be a rational and anti-superstitious William Blackstone, author of the Commentaries on the Laws of England (1765–1769), one will be very disappointed. In Hale, one finds absolute belief in the supernatural (and why not, in one who believed so fervently in a Christian God?): he once charged a jury that “he did not in the least doubt but these were witches: First, because the scriptures affirm it; secondly, because the wisdom of all nations, particularly our own has provided laws against witchcraft; to let the guilty go free [is] an abomination to the Lord.” ²³ When we turn to Blackstone’s Commentaries written almost a century later and fifty years after Holt’s death, we find not so much enlightened science as an equivocal stance that attempts to fold superstition into the modern system. As Blackstone says, witchcraft is “a sixth species of offenses against God and religion … a crime of which one knows not well what account to give,” but “in general there has been such a thing as witchcraft; though one cannot give credit to any particular modern instance of it.” ²⁴

In this context, Holt more than Blackstone stands out as an Enlightenment figure, an anti-witchcraft hero who acquitted accused witches in at least eleven trials held all over England. ²⁵ In commentary, he threatened to charge with murder anyone who caused a death through insisting on a swimming trial, a common test for a witch. His prosecution of Richard Hathaway, not for witchcraft, but for accusing another of being a witch, became a landmark case that created fear among witch-accusers and made that crime almost as notorious as witchcraft itself. Nineteenth-century biographers suggest that Holt became a symbol of modernity and progress, “a perfect example of judicial learning, energy, and independence” ²⁶ whose “mental outfit was of the modern style.” ²⁷ Such a symbol stood in sharp contrast to the continued belief in witchcraft post-Holt and, indeed, throughout the eighteenth and nineteenth centuries. ²⁸

While the Holt of legal history represents judicial probity, enlightenment reason, maturity and good judgment, the Holt of the following oft-repeated anecdote is quite a different character, one who seems poised between the popular culture of the early 1600s and the novelistic culture of the 1750s, between the superstitions of the past and the enlightened ideas of the present, between the wizardry of witchcraft and the empiricism of science, between fiction and the law. The first printed version of the anecdote that I’ve been able to find appeared in the second volume of The Tell-Tale: or Anecdotes Expressive of the Characters of Persons Eminent for Rank, Learning, Wit, or Humour published in London in 1756. The Tell-Tale with its collection of “genuine anecdotes” meant to help readers “shine” in conversation, purported, like most collections of anecdotes, to offer stories which “have been preserved in the closets … and never before made public.” ²⁹ It offered them “for the improvement of youth in conversation,” but it also promised an affective component, claiming that those who could learn to tell such stories as it contained would be “joyous” and “diffuse joy” to others. ³⁰ The Tell-Tale offers us a “genuine anecdote” about Holt, one that must have already appeared elsewhere and one that was repeated many, many times thereafter. The Tell-Tale was not simply a gossip sheet, but a two-volume set of instructions for making conversation in polite circles. Because its stories were meant to be repeated, our anecdote’s inclusion gives evidence not only to the popular currency of the tale, but also to the likelihood that it would be repeated, which it was through numerous reprintings in different contexts. ³¹

Whether or not this anecdote “diffused joy” or was “perfect” for those readers of 1756 as the introduction to The Tell-Tale claims (it is hard to imagine people working it into casual conversation), it is illustrative to us. The anecdote starts abruptly, telling of the “very wild” Holt who in his youth (we might presume that this dates the events in the anecdote to the late 1650s or early 1660s) “was once out with some of his raking companions into the country.” ³² After spending all of their money, the young “rakes” split up. In the story, Holt, despite his inability to pay, finds an inn and takes a room. Noticing that the innkeeper’s daughter seems to have “the ague,” he offers to “cure” her fits. The story emphasizes pathos: the innkeeper is a widow and the daughter her only child. Then comes a magical moment: “He … wrote a few unintelligible words in court-hand on a scrap of parchment, which had been the direction to a hamper, and rolling it up, ordered that it should be bound upon the girl’s wrist and remain there till she was well. As it happened, the ague returned no more.” ³³ Garrulous with gratitude, the innkeeper refuses to charge Holt and allows him to go his way.

Here we get a narrative turn of great import: According to the anecdote, many years later, Holt – now a respected jurist far removed from his “raking” days – “went into circuit into the same county.” ³⁴ There Holt presided over a witchcraft case, the said witch being charged with having a spell “with which she could either cure such cattle as were sick or destroy those that were well.” ³⁵ This “spell” was not an incantation, but a charm that the local people had seized and now presented in court: “It appeared to be a dirty ball, covered with rags, and bound many times round with packthread.” ³⁶ Much to Holt’s surprise, when he removed its coverings “with great deliberation one after another,” he found his own original parchment with his “few unintelligible words in courthand,” still visible on it. ³⁷ Holt “changed color and sate silent.” ³⁸ How embarrassing for the great Justice, the man who had made pretending to be a witch an oft-prosecuted offense, to be caught pretending to witchcraft himself. Forced by conscience to admit his role in “witchcraft,” Holt told the jury that “this bauble which you suppose to have the power of life and death,” was only “a senseless scrawl which I wrote with my own hand.” ³⁹ According to the anecdote, that moment “had such an effect upon the minds of the people, who now blushed at the folly and cruelty of their zeal” that it ended witchcraft trials in the region. ⁴⁰

The story emphasizes the affective changes of both Holt and his immediate audience: Holt “changed color;” his audience, recognizing “the cruelty of their zeal,” then “blushed.” ⁴¹ But that The Tell-Tale embedded this anecdote in a volume meant to “enthuse joy” suggests its intended impact on its readers (and perhaps listeners). Framed affectively, the anecdote contains a number of affectively, even affectionately, represented radical changes. ⁴² The power of what purported to be the written law (a bit of courthand which turned out to be a “senseless scrawl”) over people’s imaginations, the “witchcraft” Holt could both enact and – as a member of the judiciary – end, the fictionalization of Holt’s past (for this story is either wholly fictional or at best a very embroidered version of the truth) and the narration of his meticulous and embarrassed attempt to sever his own fiction-making from law, all of these figure in accounts of changes in attitudes not only towards witchcraft but to the law that typified this period. Perhaps the anecdote did “diffuse joy” as The Tell-Tale promises: it encourages listeners to react with satisfaction to Holt’s generous, self-deprecating act and to find satisfaction in the denouement of the story. In doing so, the anecdote makes visible the connection between the affects that narrative can elicit and the purportedly authoritative and “real” workings of law, between feelings of both groups and individuals, and their relationship to larger cultural trends and to legal decision-making. Reading it from this perspective reveals that Holt’s personal bildungsroman was also a societal and jurisprudential bildungsroman while it encourages us to reexamine Holt’s relationship to anecdotal fictions and law. It is a story in which the wizardry of fiction casts an emotive spell on the law, and in doing so demonstrates law’s interdependence with narrative fiction and various affects it both represents and elicits.

A close reading (or at least a closer reading) allows me to be more specific, to address the ways the story of Holt’s witchy ways gives affective and aesthetic form to and helps make emotively palatable a number of related but different and conflicting dichotomies underlying the law of the period – those between the oral and the literate, between popular and high culture, between the country and the city, and between superstition and science – even as or perhaps because it contains them in a progressive narrative arc that both represents synchronic events as diachronic and events occurring at a distance from each other as collapsed into one space. In short, the story is much more than an individualized slice of a famous life or, for that matter, a quaint tale of how old superstitions were laid to rest. Instead it represents part of an effort to communicate and gain acceptance for a new normative ideal, one in which the literate has trumped the oral, high culture has trumped popular culture, science has trumped superstition, and all of it has occurred some time in the past and without regard to England’s geographical differences. In offering all of this, it functioned not so much as a disruptive moment as some anecdotal theory suggests, but instead as a narrative that neatly arranged diverse and contradictory particulars under the banner of a general consensus meant to be felt as well as thought. Yet, the anecdote contains within it the seeds of disruption, in its complex portrayal of a critique of legal writing and judicial authority and its papering over of the gap between superstition and science, between the rural poor and the urban, educated elite. In the end, the anecdote subsumes radical change to the building of an affective community that erases differences under the assumption of shared warmth and communal spirit. That the affective and emotive elements of the tale control its general tendency suggests affect’s ability to moderate communal responses even to radical change.

II.  Writing Orality into Literacy: the Affective Oral-Literate Continuum

How did this rich anecdote evoke affect to bundle new ideas with old and present them to the public? One of the most important of these new ideas involved acceptance of the broad reach of literacy and print, an acceptance that did not come easily. For this was a period that saw a great deal of anxiety about writing and print prompted by the growth of literacy as well as by print’s ability to manage the information necessary for increasingly complex social and cultural systems to operate. All anecdotes that eventually appear in print suggest a bridge between the oral culture of their telling and the literate culture imagined by a print object, but legal anecdotes may have been particularly important in this regard as a newly textualized law began to dominate the juridical world. Thus it is not surprising that this anecdote focuses on the issue of writing, the technology on which the young Holt draws to save his fiscal hide while out on a “raking” venture. Though Holt seems to represent a triumph of literacy, that triumph is hard won as the story unevenly shifts back and forth, awarding primary status at times to the oral and at times to the literate print culture that was beginning to dominate legal practice. Throughout the tale, literate culture’s ability to create and maintain power seems at best fragile, undermined by ongoing practices of the rural populace and by the anger and resistance that literacy seemed to evoke.

That “a few unintelligible words in courthand” constitutes Holt’s writing, a bit of writing that did so much for the innkeeper’s daughter, suggests in itself a concern that writing that could be distanced from its most foundational purpose, communication. In legal history, courthand was known as a particularly clear hand, a way of writing meant to preserve decisions, to inscribe them in such a way that even as paper crumbled and ink faded, they could still be read by subsequent generations. ⁴³ For many years courthand was an absolute requirement of the common law. ⁴⁴ Over time though, it seems to have become a symbol for ornate obfuscation. Thus during the Commonwealth it was outlawed along with Law Latin and other formal “hands.” Records instead were to be written in an “ordinary, usual, and legible hand.” After the Restoration, courthand was reinstated, but it “display[ed] an exuberance and extravagance in no way reduced by their ten years’ prohibition” while by Holt’s time courthand was commonly criticized as part “of the apparatus of professional mystification.” ⁴⁵ As Edmund Hickeringill complained in 1708, “crafty lawyers” used “court-hand, Latin (Lawyers Latin) and unintelligible Law-French (scarce known to themselves, and less known to a Norman at this day) [to] keep the people in ignorance, and making them pay the reckoning, reserve the profit and the praise to themselves alone.” ⁴⁶ Finally, in 1731, it was banned for good and replaced with “a common legible hand.” ⁴⁷ By the 1760s, it had, as Blackstone complained, “become the object of science, and calls for the help of an antiquarian.” ⁴⁸

While the Holt of the story represents courthand as mysterious to the landlady, there is no indication that Holt himself thought it to be magical. But in popular parlance, courthand was both magical and mysterious, a way of writing targeted by Shakespeare and Cervantes as unreadable and, as Roger Chartier has noted, “associated with secret and magic power.” ⁴⁹ Perhaps after literacy became more accepted and everyday ways of writing lost magical power, magical power came to be associated with more esoteric forms of writing like courthand. But was the folk belief that legal writing had magical principles that far from the truth? If legal writing is, as Peter Goodrich argues in Reading the Law, “writing which compels, or, in a direct or indirect way, commands,” writing that is “directly performative,” ⁵⁰ then it seems not that distant from magical writing, writing which causes a particular event to occur or act to take place. Legal decrees often seem a bit like magical thinking (in both the traditional and current psychological senses): we say it is so and voilà, it becomes so. To some minds, legal writing may have seemed little different from incantation. ⁵¹

Beneath the story then is a critique based in significant cultural ambivalence and anxiety over the status of legal writing – and perhaps of all writing – only thinly papered over. First, the anecdote memorializes not so much legal writing as the critique of legal writing – of its proliferation, its misuse, its status as mumbo jumbo and babel. Though Holt used his legal expertise and knowledge of courthand to trick the landlady, eventually the landlady’s daughter turned the trick against him, appropriating his writing for her own purposes, rewriting it or overwriting it. In revising Holt’s text to suit herself, the illiterate innkeeper’s daughter became a “reader” in that she took a text and gave it new meaning. ⁵² If the purpose of writing and literacy in Enlightenment England was to educate and improve, in essence to reform the populace, the innkeeper’s daughter herself re-forms that purpose. Holt’s effort to inscribe an ideology of status and knowledge – one that assumed superiority – collides with the innkeeper’s daughter’s resistance. Rather than being “imprinted” with Holt’s text, she makes of it a story worthy of print, a story that undermines Holt’s authority and reputation for good judgment. Moreover, her use of his written courthand underscores the dangers of print, particularly the dangers of its proliferation for unintended purposes. That a “bit of courthand” could be so misinterpreted as to lead to a career as a witch and later to undermine the authority of an important justice suggests the interpretability and malleability of all writing, but given the circumstances, particularly of legal writing.

Until recently most accounts of the oral-literate continuum positioned literate culture over oral culture, placing oral culture as historically prior to a more modern, better, literate present. But the truth was far messier – and thus far more anxiety-producing. As Paula McDowell notes, “There is no real divide between orality and literacy … only the eighteenth-century emergence of an enormously influential progressive narrative of media shift that would remodel a reciprocal, living relation as a historical fiction of ‘then’ and ‘now.’” ⁵³ While engaging in this progressive continuum, the anecdote suggests an ongoing struggle and mutually constitutive commentary about the relationship between the oral and the literate in the early eighteenth century. It affirms that the progression from oral to literate culture was contested and ambivalently felt not only by the illiterate, but by the literate urban center. The very telling of this anecdote – in a printed collection that offered anecdotes appropriate for conversational repetition – prioritizes an oral tradition that was quickly becoming a practice of the past. And the story’s interpolation of a mini-narrative about the changing status of writing suggests the ongoing power of the oral (an oral that has nonetheless been preserved in forty or more print retellings of this story). The fact that Holt’s innkeeper and her daughter turned a bit of writing into a “charm,” mysterious, enwrapped, powerful, suggests their resistance to signs of literacy and even to Holt’s judicial signature, a signature he attempted to imprint on the oral culture of the inn and of local witches.

In the law as well, the hierarchical dominance of literacy was far from a settled matter. Claims to an oral tradition argued that law was passed down through custom and memory. The oral tradition signified an English legal system older than print or even manuscript culture, “no less antient than the beginning of differences betwixt man and man, after the first peopling of this land” as William Dugdale had argued. ⁵⁴ Yet the law did rely on texts. Matthew Hale, for instance, seemed quite concerned about the relationship between the oral past and written accounts of it. ⁵⁵ In a larger sense, the common law, as Holt well knew, although it was preserved in writing, was based in custom and in the life of the people. Orality is written into the language and practice of law from its very origins: the word “jurisdiction” contains the word “diction,” and the court has always been “a site of enunciation.” ⁵⁶ Early legal representatives were called “conteurs,” or “singers of tales” and jurisprudence thrived on “oral stories and vaguely poetic phrases …” ⁵⁷ Before print, law depended on oral culture and on the sorts of extensive memorization that it promoted. Legal literature was sparse and legal education remained “overwhelmingly oral” until the mid-seventeenth century ⁵⁸ as students gave lengthy recitations as part of their education at least through the 1640s. ⁵⁹ But sometime in the seventeenth century, the balance between the oral and literate traditions began to shift: law students began to absent themselves from required oral readings or moots, an indication that the oral tradition was fading, being replaced by writing. ⁶⁰ While oral performances still typify the practice of law, they co-exist uncomfortably with a system that relies on print and now digital sources as offering permanence and replicability.

While the anecdote about Holt suggests the “reciprocal, living relation” between oral and literate culture, in the end it positions orality nostalgically, but firmly, in the past. When one considers the simplicity of the illiterate innkeeper and her daughter, Holt’s cynical manipulation of them while a youth, followed by his quick dismissal of the witchcraft charges many years later, the anecdote as a whole demonstrates the power of the literate and the way it was fast coming to replace reliance on oral culture. For the writing that the landlady’s daughter so prized, that which had cured her and then become her livelihood for decades, is, by the end of the story, quickly dismantled, devalued and yet treated sentimentally as a relic of Holt’s misspent youth. When the mature Holt sees his writing, it “appeared to be a dirty ball, covered with rags and bound many times round with packthread.” In other words, it is en“cased”; to unpack it, he must remove the coverings “with great deliberation one after another,” a painstaking process that mimes the judicial fact-finding process and creates some of the suspense in the story. Only then is the history of this witch’s supposed witchcraft revealed to be the great justice’s own writing, “a senseless scrawl” written when he was a young man. By removing its “case,” a word that suggests the legal “cases” that were the fundamental texts of English law, the landlady’s daughter is left only with words, Holt’s words. Those words become something to be “read” on a higher level than that suggested by “magic,” or even than simple articulation. Holt’s higher order of literacy, his juridical understanding of the higher level meanings of these words that were not really words, trumps the landlady’s daughter’s use of courthand as magic; Holt’s interpretation of the “senseless scrawl” is accepted as dispositive while the landlady’s daughter’s many years of experience are rejected as nonsense, trivializing both the idea of magic and its connection to the oral-literate continuum in comparison to the savvy, literate world that Holt inhabits.

If this were a simple matter of win or lose, the anecdote might leave its audience with only a sinking feeling or with feelings of aggression related to triumph. Instead, when read in light of the ongoing conflict between the oral and literate in the legal world, the anecdote’s mixing of orality and literacy seems to appropriately reflect this important moment in legal culture. Any win is contested and equivocal and in the end, subsumed into the self-congratulatory. The fact that the anecdote itself was being published with the goal of its continued retelling in oral form suggests a mutually constituted relationship rather than a progressive continuum, while the treatment of the writing “in courthand” within the anecdote suggests the ultimate meaninglessness of a writing in comparison to Holt’s oral pronouncement of the status of the law. It is that oral pronouncement – not a writing and yet preserved and disseminated in writing – that supposedly “ends witchcraft” in that part of England. The possibly radical change from a culture dominated by the oral to one dominated by the literate is made palatable by the warmth and geniality of Holt’s tempered response to the incident, a warmth that the anecdote’s audience is expected to respond to and adopt.

III. The Oral-Literate Penumbra: Geography, Class, and Enlightenment Science

The murky and emotively evocative relationship between the oral and the literate subsumed a number of other dichotomies: oral culture, both celebrated and mocked, was associated with the country, with popular culture, and with superstition; literacy with urban life, the elite, and science. All were related to England’s construction of national unity: a nation interested in asserting identity internationally must at least seem to be unified geographically, culturally, and intellectually, if only through marking such dichotomous relationships. ⁶¹ Unpacking the anecdote’s assumptions about these dichotomies demonstrates just how much cultural work the story was attempting to perform. Anecdotes shored up national identity in a general way, but an anecdote about witchcraft – a hot button topic throughout the country and in London throughout the century – had a particular national affective valence for England. Concerns about the truth value of witchcraft not only preoccupied politicians and justices throughout the late seventeenth and early eighteenth century, but operated as a sign of the growing influence of Enlightenment thought. As indicated earlier, justices were particularly on the spot: those who failed to prosecute witches vigorously could become targets of what we might now call the “religious right” as a disbelief in witches signified a disbelief in the devil and thus in God.

The Holt anecdote reinforces the eventual association of witchcraft and related beliefs with primitive rural life rather than with the urban core that came to dominate understandings of Englishness, even as Englishness relied on heart-warming images of a pastoral rural England for its moral authority. As Michel de Certeau has famously asserted, “Every story is a travel story – a spatial practice.” ⁶² Significantly Holt’s youthful escapade takes place “out in the country” and the later resolution of the problem he created as a youth occurs when he is “on circuit into the same county,” not while on the bench at Westminster. These locations were emotionally weighted in the English imagination. Tim Edensor argues that the rural was a “supreme marker of national identity” in England, that it signified not only a reassuring “insularity,” but also social stability in that it was constituted as a space in which everyone knew and accepted their social place. It suggested as well that people had power and authority over space and even nature: the working of the land, its domestication and shaping, suggested that a shaping of the nation was possible. ⁶³ But by the early eighteenth century, this idealization of the rural was under stress. Whereas in 1550 only five percent of the population lived in cities, by the nineteenth century, this figure had grown to more than fifty percent. Between 1550 and 1850 population shifts thus made rural life a mere fantasy for most people. Tensions between rural and urban took their form in the rejection of London-ish ideas and the association of various forms of immorality and decay with the city, but also in an increased sense of loss regarding an idealized country life. ⁶⁴

Country and city were, of course, not separate entities, but mutually constituted just as the oral and the literate were: without one, the other could not be imagined into being. In the anecdote, spaces are constituted not by their own unique characteristics but through, as de Certeau says, “intersections of mobile elements.” ⁶⁵ We see in the anecdote a Holt who moves between the urban center and the rural periphery, both as a youth and as an older man. This movement through space suggests entanglement despite the anecdote’s effort to establish a hierarchical relation: the rural exerts its superiority over the urban initially as Holt scrambles to accommodate himself in a foreign environment. Only much later is the rural superceded and replaced with urban dominance when Holt’s urbane (and urban) manners manifest in the final graceful admission of “guilt,” his apology, and his summing up of what was becoming an “urban” truth: that witchcraft was mere superstition and trickery, that the beliefs of the rural poor were outmoded and uninformed, even silly and childish. The anecdote in a sense becomes that “matrix” that Edensor speaks of, a matrix in which “national identity is being continually redistributed.” ⁶⁶

Witchcraft trials offered a concentrated affectively-inflected site for observing interactions between social and intellectual groups, bringing together first, villagers who, as Sharpe remarks were “both the suspected witches and their accusers and who formed the juries which tried witches,” secondly, local gentry, and finally, Westminster-anchored judges such as Holt. ⁶⁷ At times these differences seemed almost explosive: As Roger North pointed out in 1682 after his brother the Lord Chief Justice had sentenced three Exeter women to death for witchcraft, “It is seldom that a poor old wretch is brought to trial upon that account but there is, at the heels of her, a popular rage that does little less than demand her to be put to death, and if a judge is so clear and open as to declare himself against that impious vulgar opinion … and the like errors of the ignorant and foolish rabble, the countrymen … cry, this judge hath no religion, for he doth not believe in witches.” ⁶⁸ North’s references to “popular rage,” “vulgar opinion,” and “the ignorant and foolish rabble” clarify the class stakes that witchcraft represented. This bringing together of difference was reflected in an ongoing print battle between those who believed in witchcraft and those who did not. As Francis Hutchinson wrote with distaste, even disgust, in his influential “An Historical Essay Concerning Witchcraft,” published in 1718, printed texts that represented witchcraft as living truth were readily available in the country as well as the city: “These books and narratives are in tradesmen’s shops, and farmer’s houses, and are read with great eagerness and are continually leavening the minds of the youth, who delight in such subjects …” ⁶⁹ Roy Porter notes that magic was still practiced “up and down the country by amateurs,” even though Hutchinson’s anti-witchcraft views were taking hold among the urban elite. ⁷⁰ Such a split – as much affective as intellectual – has drawn the attention of cultural historians with Peter Burke noting that “the case of witches” marked the difference between the common people and the elite: “This was not because ordinary people had stopped accusing one another of witchcraft but because the learned had stopped believing in it.” ⁷¹ To believe in witches came to be associated with “the very antithesis of what it meant to be in the stadium of light” ⁷² and yet was associated by large groups of English people with, as Hutchinson notes, “eagerness” and “delight.”

In our anecdote, Holt represents the elite, urban culture of the law, but rather than forcing the “people” to abandon their delight by accepting his views, he nudges them along by humbling himself and establishing an affective bond with his audience. Yet, the anecdote locates the “low” in the rhetoric of superstition, a rhetoric that preceded the Enlightenment rhetoric of science, of experience and experiment that Holt had adopted in his witchcraft trials. Keith Thomas in Religion and the Decline of Magic (1971) has chronicled the shift during this period from superstitious belief to a belief in science. But the anecdote lays this shift open for us, representing the end result as something very much finished and done by the time the story is being told. In the story, the young urbanite Holt has already rejected country “science” as early as his raking days: “he shook his head at the doctors,” quickly dismissing the local “quack” and choosing his own remedy, one of city trickery, that bit of “courthand” to be “bound upon the girl’s wrist.” But replacing fake science (the quackery of the doctors) with his own fake magic (the bit of courthand) no longer satisfied the mature Holt. Remembering his past foolishness (which also comes to represent the past of the nation), he blushes with shame (“at the recollection of this incident he changed colour and sat silent”). He then seeks to replace the young Holt of the anecdote with his now modernized self, saying: “this bauble, which you suppose to have the power of life and death, is a senseless scrawl which I wrote with my own hand.”

Unlike Roger North’s brother, bound in the 1680s to give at least lip service to the law of what were seen as the lower orders, of the “countrymen” and “rabble,” Holt rejects local custom and inserts in its place a calm, Enlightenment-oriented, if chagrined, rationality. As Susan Sage Heinzelman argues, the law of the period was dichotomous, split “between a legal system that is popular, custom-based, identified with the lower social orders and therefore dangerous … and a legal system that is elite, statute-based, identified with upper social orders and therefore stable …” ⁷³ Such a dichotomy is reflected in the anecdote where the “high” is represented as chronologically following the “low,” but also as being located in the city, imported out into the country where country bumpkins must be gently educated just as Holt has been educated since his younger “raking” days. Identifying the movement against witchcraft prosecution with the elite, urban upper classes aligned it with the stability of a centralized legal system that here is represented as benign and orderly. In this context, we almost forget the violence that inhabits the story. In unwrapping the “encased” charm, Holt has destroyed the innkeeper’s daughter’s only asset. While saving her life, he has taken away her livelihood.

The story’s replacement of the discourse of magic with that of a science creates a sort of amnesia around their actual interdependence. During Holt’s time magic and science seemed inextricably linked as what came to be called “quack” doctors overlapped with local witches in their ability to cure the ill. Kenneth Burke is helpful here, noting in Rhetoric of Motives that magic has been “treated as an early uncritical attempt to do what science does,” but one that relied on the belief that individuals could influence “the impersonal forces of nature.” ⁷⁴ Thus, we have tended to look at magic and science dichotomously, in Burke’s words, as a “flat choice’’ between a civilized vocabulary of scientific description and a savage vocabulary of magical incantation. Analyzing the anecdote suggests the various discourses that went into our acceptance of this “flat choice.” If a culture accepts Holt, accepts the warm and communal feelings the anecdote attempts to inspire, then it also accepts the flat choice: it chooses science over magic. Such a decision was not a given during Holt’s time. Those who opposed the new science sound much like those who asserted the reality of witches and witchcraft: they believed that the new science “compromised Scripture and pre-empted providence.” ⁷⁵ Conversely, a belief in science did not necessarily imply a disbelief in magic, spiritual beings, or what is commonly called superstition. For instance, concurrently with the time of the anecdote, Newton was publishing his Optics (1704). He was knighted in Holt’s last decade. And yet he had as well a “keen interest in alchemy and in Biblical prophecy.” ⁷⁶ The triumph of science occurred not all at once, but over a lengthy period that did not quite end in the nineteenth century and, perhaps, has not ended even now. Science relied on (and relies on) affective as much as intellectual change as it associates a particularly comforting type of assurance and belonging with its ends.

The anecdote’s shadow text is that of Holt’s relationship to empirical science, for Holt took part in the shift that resulted in science’s domination. In real life as much as in the anecdote, he seemed enamored of the scientific method, drawing on it in a well-documented witchcraft trial which subjected Richard Hathaway to sustained inquiry after Hathaway had brought charges against Sarah Murdoch in 1701. Hathaway claimed to have been bewitched by Murdoch into vomiting pins and starving. Holt, doubting his credibility, locked Hathaway in a room and had him watched. Witnesses discovered hidden pins on his person and gave eye-witness testimony of him eating secretly even while claiming to be wasting away. ⁷⁷ (The case is reminiscent of that of Mary Toth who claimed to have given birth to numerous rabbits but eventually was proved to have fabricated her story. ⁷⁸ ) When Porter describes “scientific culture’s enduring rhetoric” he might as well be describing Holt’s demeanor both in accounts of that trial and in the anecdote: both were, as Porter puts it, “humble, empirical, co-operative, pious, useful.” ⁷⁹ The trial reports reveal Holt as a fair jurist, first setting up an “experiment” that would fairly test Hathaway’s claims, then at the trial taking care to ask questions and sum up the evidence on both sides. Here we see the rhetoric of science triumphantly assert its power, a power that Holt relies on when he issues his anecdotal dicta against witchcraft and thus “ends witchcraft in that part of England.” But we also see the emotional component that accompanied the supposedly rational project of science: its success came through expressions of humility, through cooperation, through a pious belief in its efficiency. Comparing the emotionally rich anecdote to the Hathaway trial report, reveals the trial report’s neglect of the affective content of this world: while the Hathaway case marks the dominance of science just as the anecdote does, it is typified by Holt’s flattened dialogue, by a series of seemingly disinterested questions and a summary of the evidence inflected through reason rather than emotion. Only by reading the anecdote can one sense the rich complex of affects that undergirded Holt’s approach to witchcraft prosecutions.

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To conclude is to recognize that the anecdote attempts to represent as settled and even comforting fact much that was contested, not only during Holt’s time, but for decades, even a century thereafter. It erases what Thomas calls “pressure from below” and allows the enlightened, urban Holt to control the terms: he sets up the fake magic himself, profits from it even, and then is able to debunk it many years later. Thus the story asserts not simply a conflict between popular, rural beliefs and science, but instead the dominance of literacy over orality, science over superstition, of education and the urban life of the city over popular culture and the ignorance of the fringe, all “enwrapt” in a tale meant to communicate comfort and emotional ease. In this sense, the anecdote tells a “lie,” but in a larger sense, it encourages us to reconsider the relationship between law and affectively-driven fictions (or quasi-fictions, for who can tell which parts of this story are true?). While The Tell-Tale’s audience sifted through the story looking for the truth, engaging in interpretive moves even as Holt did within the story, it necessarily positioned itself adjudicatively. But this audience also felt the story. Through reading about the well-meaning, mature and avuncular Holt, who now looks back on his youthful follies and chuckles, the various audiences encountering the anecdote could feel wise, secure in the knowledge that the common law had served them well, had progressed, and represented the best that their culture has to offer. This is how binding occurs: by locating the interpretive fact-finding functions of law in an affective and specifically affectionate realm, the anecdote binds individuals to the law. Holt’s story – through its chagrined recognition of youthful folly and mature reflection – reassures the reader that the common law is not static, but can be progressive, can move with the times and adjust to the new science. Common law and progress need not be antithetical. But in a larger sense, it reminds us that the law, while claiming to be above and separate from the emotive world of fiction, cannot do without it. It relies upon the fictions of the past and its ability to fold them into a narrative of the present even while fictions of timelessness and of attachment to the past suggest an ongoing loyalty to law. This particular fiction, in which both superstitious fringe and rebellious youth are, in the end, bound affectively to Enlightenment law, reinforced law’s power and authority in a manner calculated to draw out warm feelings of community, happiness and cohesion around a change for the good. What a lovely fantasy for a people to carry with them in an age of commerce and imperial expansion that would take English law not just out into the country, but around the world.