Trial by Jury of Things Supernatural

THE law can deal with the supernatural — with such questions as the existence of God or the devil — in any way that it chooses. Two ways have been adopted. One is that of assuming their truth and reality, and then legislating upon that basis, in such a way as leaves open no question of fact about them ; directing certain conduct, forbidding certain other conduct. The volume of our oldest Anglo-Saxon laws begins with an assumption of the existence of God. It is providing a penalty for stealing, and opens thus : " The property of God and of the Church twelvefold.” This is the first sentence in the long annals of our recorded English legislation, now reaching back for nearly thirteen hundred years. The existence of God has always been assumed in English law ; and so the English Commonwealth punished capitally a denial that God exists, and any denial of his leading attributes such as his omnipresence, of the Trinity, of certain things about Christ, of the resurrection of the dead, etc. It is laid down by high authority in England to-day, although this is controverted, that it is punishable as blasphemy at common law to deny the truth of Christianity or the existence of God. In the opinion of Mr. Justice Stephen, it is, in point of strict law, criminal blasphemy in England to sell, or even lend, a copy of Strauss’s Life of Jesus, or Renan’s work of the same name, or certain works of Comte. Whatever may be the exact truth about that, yet in England always, and for the most part here, the plan has been pursued of asserting and sustaining by law the truth of certain opinions about the supernatural. Even now the phrase is familiar that “ Christianity is part of the common law.” This is, indeed, a highly figurative expression, very likely to be misunderstood, the import of which may be best surmised by remembering that the old judges also said that the “ almanac is part of the common law.” It is true in a sense, but by no means in a literal sense. Now, under any such laws as these which I have just referred to, or under our own laws against blasphemy, which rather deal with a certain objectionable method of handling given opinions than with the sober and decent denial of them, there is no chance left for any legal discussion as to the reality or truth, in point of fact, of these things; that is, of the existence of God, the nature of Christ, and the like.

But there is another way. Formerly, legislators did sometimes leave open a question of fact as to the existence and the operation of supernatural influence. When they tried people for witchcraft, it was a question, not indeed whether there were a devil and evil spirits able to communicate with men and to operate among them, for the truth of this was assumed, but whether, on a given occasion, these creatures had actually been operating in league with the accused persons and in a certain way. That is a sort of question which our system of law has not and never had any suitable machinery for determining ; and so in recent times we do not take this course. But suppose we did, how should we deal with the question ? Precisely as they formerly dealt with it, precisely as we now deal with any other question of fact, — by calling witnesses, by expert testimony, and by a jury, or, it may be, a judge; and this was the same machinery that our ancestors used in the witchcraft cases. When Ruskin was brought into court, some years ago, for libeling Whistler, the artist, by some highly flavored remarks about his pictures and his capacity, the artistic merit of these works was submitted to the decision of a jury : the pictures were hung up before them, and artists like Burne Jones and Rossetti were called in as expert witnesses to aid the jury by their opinions. And so it was, a few years ago, when the sculptor Belt brought a like inquiry before a London jury, who sat upon the question of his capacity to do work of any artistic worth, examined his busts, with a collection of which the court-room was furnished, and had to hear, digest, and pass judgment upon the expert opinions of the leading artists of England. The Londoners laughed at all this, and were reminded, they said, of the fable, — how the beasts of the field quarreled as to which should be greatest among them, and called in a passing crow to settle the question. They spoke also in jest of a judge who once proposed to end the everlasting controversy over fate and free will by making up what the lawyers call a “ special case,” and arguing it out in banc. It was, to be sure, a sorry sight. The tribunal was not fit for the task, but it was the best that the law could furnish. And now, if the question of the existence of supernatural intelligences and their influence should ever be submitted to our courts for decision, it would be before just such a tribunal, either a jury or a judge, and upon just such proofs that it would have to be determined. Legally speaking, the fundamental facts about religious truth as manifested upon any given occasion might be settled one way to-day and another way to-morrow, according as different juries should find.

It is not impossible that we may yet see something of this sort done about Spiritualism ; that is to say, may see the question passed upon whether it is or is not true. But so far, in modern times, such things do not come up in this way. When Spiritualists get into court nowadays, it is on the charge of defrauding people and using undue influence, as in the case of Home in England, twenty years ago, who was compelled to return several hundred thousand dollars’ worth of property to a woman of seventy-five, a Mrs. Lyon, who had given it to him on the faith of certain alleged messages from her deceased mother; it was a mere question of undue influence, of the abuse of a relation of confidence. And so of the case of a Mrs. Fletcher, who, a few years ago, was found guilty, in London, of obtaining property by false pretenses and conspiracy. She has written a book about it, and insists that her spiritual communications were genuine, and so the pretenses were not false ; and that the court wrongly rejected an offer on her part to prove them true, and so condemned her wrongly. But it appeared to the tribunal like a pretty vulgar case of fraud. The court left to the jury fairly the question of her own belief in the manifestations, which was the main thing. In like manner, the Rosses in Boston, not long ago, were arrested for defrauding; and in England. a few years since, a Spiritualist was convicted, under an old statute, as being a “ rogue and vagabond ” for using these means to defraud.

But the indictment of Mrs. Fletcher on the occasion above named also included a charge of pretending “ to exercise divers kinds of witchcraft, sorcery, enchantment, and conjuration.” That was under an existing statute in England,— a law that “every one who pretends to exercise . . . any kind of witchcraft, sorcery, enchantment, or conjuration . . . commits a misdemeanor,” and must, upon conviction, be imprisoned for a year, etc. This calls for no result, such as defrauding ; it is merely a pretending to exercise. That law was enacted in 1736, at the same time that the former law of 1603, which had been passed to please King James when he came to the throne, was repealed. The former law had made it a capital crime, without benefit of clergy, to “use, practice, or exercise any witchcraft, enchantment, charm, or sorcery, whereby any one shall be killed, . . . pained or lamed in his body;” and also “to consult, covenant with, entertain, employ, fee, or reward any evil or wicked spirit, to or for any intent or purpose.” This law hardly supports Selden’s well-known remark about it : “ The law against witches does not prove there be any, but it punishes the malice of those people who use such means to take away men’s lives; if one should profess that by turning his hat thrice and crying buz he could take away a man’s life, though in truth he could do no such thing, yet this were a just law made by the state that whosoever should turn his hat thrice and cry buz, with the intention to take away a man’s life, should be put to death.’ The law does not, to be sure, prove that there be any witches, but certainly it assumes the reality and possibility of witchcraft and of commerce with evil spirits. In the trial, then, of cases arising under this law, it became a mere question of fact whether in reality a particular person did practice witchcraft and deal with spirits, or not. But the law of 1736, which is the existing law, deals only with pretending to exercise, etc. An English judge of our own day has raised the question whether it would be a good defense, under the present law, to prove that the accused not only pretended to practice witchcraft, but actually did it. I suppose that it would not. But if it would, then we might see the question of the truth of witchcraft submitted to a jury to-day, as Mrs. Fletcher tried to leave the question of the reality of her communication with spirits.

There was a period of nearly two hundred years during which such allegations had to be passed upon by courts of justice in England, in administering the ordinary laws of the land; and especially during the period of one hundred and thirty years after the act. of King James. In Scotland, also, they did it, and, as we all know, here.

I am going to examine a little carefully two famous trials of this sort, in the seventeenth century, one in England and one in Scotland, with a view, especially, to mark the way in which legal machinery worked, in performing so singular a task as that of passing on the truth and reality of witchcraft. I pass by the New England cases, because they are but poor illustrations of anything that can he called legal. There was, 1 believe, no lawyer engaged in the trial of the Salem witches, either on the bench or at the bar.

I. The first of the cases I refer to was the famous one of the so-called “Suffolk Witches,” tried before Sir Matthew Hale at Bury St. Edmonds, in 1664, for bewitching seven children.¹ This case has a special interest because it was one of the authorities relied upon by the court that condemned so many unhappy persons at Salem, twenty-eight years afterwards. “ They consulted,” says Cotton Mather (Upham’s History of Witchcraft, ii. 361), “ the precedents of former times, and the precepts of learned writers about witchcraft, as Keble on the Common Law, . . . also Sir Matthew Hale’s Trial of Witches, printed, Anno, 1682.”The testimony included statements by the relatives of the children as to their remarkable behavior, which they themselves had seen ; of certain experiments upon three of the children who were in court; and of the expert testimony of a person styled in the report “ Dr. Brown of Norwich, a person of great knowledge.” This was no other than Sir Thomas Browne, then sixty years old, and a physician of much distinction. This expert was by no means uncommitted on the subject of witchcraft. “ For my part,” he had said twenty years before, in the Religio Medici, a book already famous and in its seventh edition. “ I have ever believed and do now know that there are witches. They that doubt of this do not only deny them, but spirits ; and are, obliquely and upon consequence, a sort, not of infidels, but atheists.” And in another treatise, published only two years later than the Religio Medici, in dealing with Satan as “ the great promoter of false opinions,” he said, in that manner of his which carries pleasure to the marrow of a reader’s hones : “ Lastly, to lead us further into darkness and quite to lose us in this maze of error, he would make men believe there is no such creature as himself. . . . wherein, besides that he annihilates the blessed angels and spirits in the rank of his creation, he begets a security of himself, and a careless eye unto the last remunerations. . . . And to this effect he maketh men believe that apparitions and such as confirm his existence are either deceptions of sight or melancholy depravements of fancy. . . . Thus he endeavors to propagate the unbelief of witches, whose concession infers his coexistency ; by this means also he advanceth the opinion of total death, and staggereth the immortality of the soul,” etc.

We are not told in the report how it came about that “ Dr. Brown " was in the court-room, whether casually or because he was summoned as a witness ; but being there, and having heard the evidence and seen the three children in court, he was asked by Sir Matthew Hale to give his opinion ; and, as we read in the report, “ he was clearly of opinion that the persons were bewitched,” and said “ that in Denmark there had been lately a great discovery of witches who used the very same way of afflicting persons, by conveying pins into them, and crooked, as these pins were, with needles and nails. And his opinion was, that the devil in such cases did work upon the bodies of men and women upon a natural foundation, (that is) to stir up and excite such humours superabounding in their bodies to a great excess, whereby he did in an extraordinary manner afflict them with such distempers as their bodies were most subject to, as particularly appeared in these children ; for he conceived that these swooning fits were natural, and nothing else but what they call the mother, but only heightened to a great excess by the subtilty of the devil, cooperating with the malice of those which we term witches, at whose instance he doth these villanies.”

This is the testimony of an " expert witness,”and it could not but have had a great effect. For although it was as true then as it is now that the opinions of an expert are not binding upon the jury, are only so much advice and instruction for them, educating them for their task of forming an independent opinion of their own (as in the case of Whistler v. Raskin), yet such opinions, in matters where the jury know so little and the expert knows so much, are often likely to be acted upon as if they were authoritative. It is highly probable that this opinion was so taken. A few carefully put questions to Sir Thomas Browne might have essentially reduced the proportions of his statement. How, for instance, did he know what had taken place in Denmark ? Personally, he probably knew nothing about it, for the accounts of his life do not indicate that he had ever traveled there. And so, in a degree, as regards all the witnesses ; for it must be remembered that, at that time, on a trial for a capital offense, as this of witchcraft was, the accused person was allowed no counsel to assist him in trying his case. What did these old women, frightened out of their wits, know about cross-examination? At that time, it may be added, their witnesses could not be sworn. Strange as it may seem, it was not for a generation yet that these privileges were allowed in England at any capital trial; and it was far later than that before it was allowed in all of them. It is probable that many thousands of accused persons were unjustly hanged in England, while this state of things existed, whose lives would have been saved by a moderately skillful cross-examination of the government witnesses.

In other respects, what was the nature of the legal machinery which was to be applied to the solution of the strange and difficult questions that were brought up in these proceedings for witchcraft ? They were to be settled by the verdict of a jury, — instructed by evidence, to be sure, and advised by the court, but having at that time (unlike the present) the legal right to find a verdict on their own information and knowledge only, although they had not publicly stated this in court so that it might be sifted, and although it was contradicted by all the evidence in the case. While the jury had this great and unmanageable power, their verdict was practically uncontrollable : he whom they acquitted was finally acquitted, and he whom they found guilty was guilty once for all, saving only the judges’ power of delaying execution and the king’s pardoning power. Points of law might be taken, but there was then no way of reviewing or setting aside the verdict in a criminal case for an error in finding the fact. The judges were then in the latter days of an experiment at fining and punishing jurors for acquitting improperly, but that soon got its deathblow, and the modern practice of granting new trials was just beginning.

Who and what were the jury ? A body of plain, every-day men, having some little qualification of property, and challengeable for a few of the plainer disqualifications for fair dealing, as, for example, that they were in the employment of either party, —a good representation, no doubt, of the average fairly well-to-do citizen, filled full of all the ordinary prejudices, presuppositions, ignorance, superstition, of the times. The jury, as Sir Henry Maine has said, is but " a relic of the ancient popular justice, . . . the old adjudicating democracy, limited, modified, and improved in accordance with the principles suggested by the experience of centuries.” We can get a side-light on the jury of that period, and their feeling about this class of cases at just about this time, from Roger North’s life of his brother Francis, the Lord-Keeper Guilford. Francis North became chief justice of the Common Pleas in 1675, while Sir Matthew Hale was yet sitting as chief justice of the King’s Bench. He was a good lawyer and a man of the world. “ Sharp and shrewd,” says one of his biographers (Lord Campbell, Lives of the Chancellors, iv. 333), but of no imagination, of no depth, of no grasp of intellect, —any more than generosity of sentiment.” But he did have a certain hard sense that kept him free from the delusions that affected that much greater but over-religious man. Sir Matthew Hale. Roger North, in the affectionate and most readable life of his brother to which I have referred, and which Talfourd has called “ one of the most delightful books in the world.”says that his brother was extremely “ serutirious,” as he calls it, in criminal cases when they were at all obscure, especially when they were capital cases; “but never more puzzled,”he goes on, “than when a popular cry was at the heels of a business; for then he had his jury to deal with, and if he did not tread upon eggs they would conclude sinistrously, and be apt to find against his opinion. And for this reason he dreaded the trying of a witch. 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 against that impious, vulgar opinion that the devil himself has power to torment and kill innocent children, or that he is pleased to divert himself with the good people’s cheese, butter, pigs, and geese, and the like errors of the ignorant and foolish rabble, the countrymen (the triers) cry, this judge hath no religion, for he doth not believe witches ; and so, to show they have some, hang the poor wretches. All which tendency to mistake requires a very prudent and moderate carriage in a judge, whereby to convince rather by detecting of the fraud than by denying authoritatively such power to be given to old women.”

Francis North had been made the more thoughtful upon this subject on account of the conviction of two old women before one of Ids colleagues upon trivial evidence, reinforced by their confessions. “ This judge,” says Roger North, “ left the point upon the evidence fairly (as they call it) to the jury, but he made no nice distinctions, as how possible it was for old women in a sort of melancholy madness, by often thinking in pain and want of spirits, to contract an opinion of themselves that was false ; and that this confession ought not to he taken against themselves, without a plain evidence that it was rational and sensible, no more than that of a lunatic or distracted person.”

Roger North had himself been present when his brother had to try an old man for bewitching a girl of thirteen. The girl had shown the usual symptoms of strange fits when the man came near her, and of spitting out pins. But these pins, unlike the common case, were straight, and his lordship, we are told, “ wondered at the straight pins, which could not be so well couched in the mouth as crooked ones ; for such only used to be spit out by the people bewitched. He examined the witnesses very tenderly and carefully, and so as none could collect what his opinion was ; for he was fearful of the jurymen’s precipitancy, if he gave them any offence.” The old man defended himself well (without counsel, of course), and called his witnesses, who could not (as I have said) be sworn. “ After this was done,” goes on the biographer, “ the judge was not satisfied to direct the jury before the imposture was fully declared, but studied and beat the bush awhile, asking sometimes one person, and then another, questions us he thought proper. At length he turned to the justice of the peace that committed the man and took the first examinations, and, ‘ Sir,’ said he, ‘ pray will you ingenuously declare your thoughts, if you have any, touching these straight pins which the girl spit ? for you saw her in her fit.’ Then, ‘ My lord,’ said he, ‘ I did not know that I might concern myself in the evidence, having taken the examination and committed the man. But since your lordship demands it, I must needs say I think the girl, doubling herself in her fit, as being convulsed, bent her head down close to her stomacher, and with her mouth took pins out of the edge of that, and then, righting herself a little, spit them into some bystander’s hands.' This,” adds the biographer, “cast an universal satisfaction upon the minds of the whole audience, and the man was acquitted.”

Now Hale, in dealing with his jury, gave them no such quiet exhibition of his anxiety and his doubts ; he took a very different method, and one which is exactly indicated by Roger North’s slurring expression as to his brother’s colleague, Raymond, — " whose passive behavior,” as he said, “ should let those poor women die,” — namely, “ he left the point . . . fairly (as they call it) to the jury.” Hale had done just this, and in a manner which indicated his own unwillingness to interfere with the natural movements of the jurors’ minds, whose tendencies on such a question, of course, he must well have known. “He would not,” he said, in charging the jury, “ repeat the evidence to them, lest he should vary it one side or the other. They had two things to ask : Were the children bewitched? Were the prisoners guilty of it? That there were such creatures as witches he made no doubt at all ; the Scriptures and the laws of all nations, including England, showed that. And he desired them strictly to observe this evidence, and the great God of heaven to direct their hearts in this weighty thing. For to condemn the innocent and to let the guilty go free were both an abomination to the Lord.” Thereupon the jury went out, and in half an hour found the women guilty on thirteen charges. This was on Thursday afternoon, March 13, 1664-5.

Now what was this evidence which Chief Baron Hale was content to leave to the jury with so little remark, and with no criticism whatever? Our source of information for this is an account printed certainly as early as 1682, and perhaps, as there is some reason for thinking, in Hale’s own lifetime, — an account prepared with care by one who was present at the trial. It bears plain marks of an effort to vindicate the justice of the proceeding.

There were, as I said, seven children supposed to be bewitched : of these, one had died before the trial ; of the others, not one actually testified in court ; three were reported as sick, and the other three who came to court were conveniently bewitched at this time and made dumb. But these three did go through many manifestations before the court, which must have strongly impressed any jury of plain men whose minds were preoccupied with a belief in witchcraft. One of the children was a girl of eleven, who lay on a table in the court-room, on her back, as one in a deep sleep, unable to move any part of her body, except (a common symptom in witch cases) that her stomach, “ by the drawing of her breath, would arise to a great height.” Then she recovered herself and sat up, but could neither see nor speak, though able to understand what was said to her; and then “ she laid her head on the bar of the court with a cushion under it.” The judge directed one of the alleged witches to come near and touch the girl, “ whereupon,” we read, “the child, without so much as seeing her, for her eyes were closed all the while, suddenly leaped up and catched Amy Duny [the old woman] by the head and afterwards by the face, and with her nails scratched her till the blood came, and would by no means leave her till she was taken from her; and afterwards the child would still be pressing towards her and making signs of anger conceived against her.” Another girl of eighteen “fell into her fits ” on being brought into court, and was carried out; in half an hour she recovered, and came back and was sworn, but as she undertook to testify “ she fell into her fits, shrieking out in a miserable manner, crying, burn her, burn her, which were all the words she could speak.” Repeated experiments were made in court of the touching of the children, while appearing to be insensible, by the old women, and of their starting up into activity. Now, says the reporter, “ there was an ingenious person who objected that there was here a great fallacy in this experiment,” for the children might be shamming. Whereupon the judge (who was always fair) had an experiment tried that well-nigh upset the whole business. Three persons of consideration, including Serjeant Keeling, were desired by the court to attend one of the children, in the further part of the hall, while she was in one of her fits, and then send for one of the old women. This was done. The girl’s apron was put over her eyes, and a person who was not one of the witches touched the girl’s hand, which produced the same effect as the touch of the old women themselves. “ Whereupon,” goes on the report, “the gentlemen returned, openly protesting that they did believe the whole transaction of this business was a mere imposture. This put the court and all persons into a stand.” But at length Mr. Pacy, the father of the eleven-year-old girl, made a naive suggestion that seems to have been thought a valuable one, namely, he “did declare that possibly the maid might be deceived by a suspicion that the witch touched her when she did not; ” and the reporter, with an amusing credulity, says this was afterwards found to be true, so that “ by the opinions of some this experiment (which others would have a fallacy) was rather a confirmation that the parties were really bewitched than otherwise.”

One readily guesses that these dramatic incidents must have told strongly on the feelings of any plain and ordinarily kind-hearted jury. Some of the children were probably in a slate of real hysteria; and the scene was heightened by all the fear and sorrow which their distressed mothers and relatives felt in telling these things, and in telling how one child had been already killed by these torments, and others were now languishing at home, at the point of death, from the same cause.

The other testimony, which a lawyer of the present day reads with amazement, was calculated to have much effect on the jury. It was, in substance, this : As to two of the children, their mother gave an account of a quarrel which she herself had had with one of the old women some years before. The woman had had the reputation of being a witch for several years. As soon as this quarrel came, the witness’s little nursing boy was very sick for several weeks. She consulted a doctor who was reckoned good at helping bewitched children, and was advised by him to hang up the child’s blanket by the fire all day, and when she took it down at night to burn anything that she found in it. She did hang it up, and at night found in the blanket a great toad, which she caused to be held in the fire with the tongs; then followed (as the reader will anticipate) " a great and horrible noise,” " a flashing in the fire like gunpowder, “ a noise like the discharge of a pistol, and thereupon the toad was no more seen nor heard.” The child recovered, but the old woman (the witch) was found, on the next day, to be herself terribly burned, and she charged this on the witness, and threatened her.² About two years later, the witness’s daughter, ten years old, was taken in much the same way, and in her fits charged this old woman with afflicting her, and soon died; and, moreover, the witness herself became lame, and ever since, for more than three years, had gone on crutches.

As to two more of the children, eleven and nine years old, their father testified to a quarrel with one of the old women ; and that the younger daughter immediately fell into fits, had the pricking of pins in her stomach, and shrieked out like a whelp, and continued in this condition nearly a fortnight, charging the old woman with afflicting her. He caused the woman to he put in the stocks, whereupon the other daughter fell sick in the same way. Their aunt testified that they were then sent to be under her care; that she had at first no faith in the stories, and thought that the children were deceiving; but they went on to throw up crooked pins and sometimes nails, although she took care that no pins were used in their clothes; and a large quantity of these pins, and also nails from the same quarter, were produced to the jury. The doctor who attended one of the children testified to his inability to account for the cause of their disorder. Similar stories were told of the other children. And finally, by way of confirming the idea that all this sort of thing was traceable to the old women, a man testified to his wagon having once struck and injured the house of one of the women, whereupon the cart was afterwards upset, and also stuck unaccountably in a gate, and the like. Another man, having touched her house with his axle, had four horses die soon afterwards, and also cattle and pigs ; and himself grew lame in his legs and was troubled with lice. A woman, having been threatened by one of the old women, afterwards lost all her geese and had a new chimney fall, and also lost a firkin of fish which her brother had sent her from the “ northern seas ; ” as to the firkin, the unfortunate mariners who were to have delivered it to her told her “ they could not keep it in the boat from falling into the sea, and they thought it was gone to the devil, for they never saw the like before.” An examination of the persons of the alleged witches was also had by some women appointed by the court, and they reported certain appearances which were in those days considered marks of a witch.

This, with the expert testimony of Sir Thomas Browne, was, so far as we can tell, all of the evidence. Think of Sir Matthew Hale leaving all that rubbish to the jury ! What is even worse, think of his doing it with nothing to mark any just appreciation of its character! That Hale himself really believed the evidence and approved the jury’s action is shown by the fact that he sentenced the women at once, on the next morning. He might have delayed, and have respited them ; that was very common with the English judges when there was any doubt. But here the conviction came in the afternoon ; and Hale, after having the three children and their parents at his lodgings the next morning, where he found, as the reporter tells us, that within half an hour after the conviction the children had all recovered, that they had slept well, that they now spoke perfectly and were in good health, proceeded forthwith to the final step. He must also have learned that morning of the alleged circumstance that the mother, who had been for more than three years on crutches, and had testified on them in court, was, upon the jury’s verdict, “ restored to the use of her limbs,” and went for the first time without her crutches. Hale had two of the children come into court and confirm all that had been testified by their friends ; “ the prisoners,” says the reporter, “not much contradicting them.” And then “ the judge and all the court, [being] fully satisfied with the verdict, gave judgment against the witches that they should be hanged.” They were urged to confess, but would not; and in three days they were executed.

II. I pass at once to the Scotch case. This case is remarkable for preserving the principal arguments of the prosecuting counsel, both to the court and jury ; so that we may see just what the line of reasoning was by which a tribunal might be persuaded of these things. It brings strongly to light the way in which the security afforded by legal forms and solemnities for the accurate investigation of facts may wholly break down when the men who are to do the judging have their minds saturated with certain sorts of opinion. We should be very foolish if we supposed that we are wholly rid of this sort of difficulty at the present day. It is familiar to us in some of its plainer forms. The most conspicuous illustration of it in our own time is the outcome of the electoral commission for determining who had been chosen President in 1876. On a set of questions which divided the commission, as they divided the country, sharply on political lines, we tried to make the commission judges. Most of its members, no doubt, approached the questions with a patriotic purpose to be perfectly impartial, perfectly judicial. They listened to arguments on both sides, and deliberated and gave their opinions ; and they were divided, eight to seven, — precisely on party lines ; and this not merely on one or two of the questions, but on every question of importance. In the journal of the commission one may read thirtyfour divisions of eight to seven, almost every one that is recorded. Some persons blamed them. But whom would you blame ? I believe it is common for those who lost to blame all of those on the opposite side, as having been partisans. But of course it must not be overlooked that the minority showed precisely the same solidarity. The fact is that the human creature, do what he will, cannot rid his mind of preconceptions ; and I suppose that we ought to thank God that it is so, that we cannot make ourselves into mere thinking machines. At any rate, so the fact is ; these judicial treasures we have in earthen vessels.

The Scotch case came on thirty years or more after the trial of the Suffolk Witches, near Glasgow. It arose in 1696, a few years after our Salem trials. It derives a certain interest from the fact that the bewitched person, a girl of eleven, Christian Shaw, afterwards, with her mother, began at Paisley that manufacture of thread which has since made the place famous the world over. Her father was the Laird of Bargarran, in Renfrewshire, a little way out of Paisley. Christian had caught a servant, Katherine Campbell, stealing some milk on a Monday in August, and received a vigorous cursing for it; thrice the servant wished that the devil might “ harle her soul through hell.” On the next Friday, Agnes Naesmith, an old widow and a reputed witch, was in the laird’s courtyard ; the girl, Christian Shaw, gave her a saucy answer to some question, and the old woman appears to have shown resentment. On the next evening, Saturday, strange manifestations began with Christian Shaw, which continued for months. She flew over her bed, lay insensible for days, stood bent like a bow upon her feet and neck at once, “ fell a-crying ” that Katherine Campbell and Agnes Naesmith were hurting her, etc. She was taken to Glasgow to see a distinguished physician, Dr. Brisbane. Here her health grew better. She had an intermission of nearly a fortnight. She went home again, and her symptoms came back worse than ever ; her head was pulled down towards her breast, and her tongue violently thrown out and squeezed between her teeth, especially when she undertook to pray. They took her back to Dr. Brisbane at Glasgow; and now, even on the journey thither, she developed a new thing, — the spitting out of hairs, curled and knotted, of coal cinders as big as chestnuts and almost too hot to handle, straw, pins, small hones, pieces of wood, feathers, gravel-stones, candle-grease, and eggshells. She was visited by great numbers of people in Glasgow, and by many of distinction. She sat up in bed, unable to see or hear, and called for a Bible and a candle, and preached to the invisible Katherine Campbell for two hours. And now she began to accuse others, and to see the devil himself. The clergy took it up ; she became the object of constant observation and labor with the credulous Presbytery of Paisley. She saw a good many witches, and was much beset by them and by the devil, particularly when any religions exercise was on. “ Usually,” we are told in the naive story of all this, printed within a year or so, in 1698, “ when ministers began to pray she made great disturbance by idle, loud talking, whistling, singing, and roaring; and when she recovered she laid this off on the hellish crew about her.” Now people would hear sounds as of strokes, and she complained that various people were striking and tormenting her, and urging her to kill her young sister. She went on to name more people, and was tormented when they touched her, among them an old Highlander who had come along and asked a night’s lodging; his touch tormented her, and he was arrested. The next day, a clergyman tried the experiment of covering her with his cloak, and bringing her in and letting the Highlander touch her. He did so, and she was at once tormented. Then she begged the Highlander to let her tell their secrets, upon which, says the simple narrative, “ the old fellow looking at her with an angry countenance,” her mouth was stopped and her teeth set. Early in February, 1696-7, came a meeting of a commission of distinguished persons appointed by the Privy Council of Scotland to examine and report upon this whole case. Christian Shaw accused various persons, and was touched by them in public and duly tormented. Then came confessions. One person charged by Christian was a beggar, described as “an ignorant, irreligious fellow who had always been of evil fame ; ” another was his daughter of seventeen, who, after being, as the narrative says, " seriously importuned and dealt with by two gentlemen,” confessed and implicated her father and the old Highlander. A boy under twelve was arrested, and although at first he vigorously denied any guilt, he confessed and implicated his brother, aged fourteen, — now in jail at Glasgow, and about to be transported for something else. This boy also, at first, wholly denied the business, “ yet,” says the narrative, “at length, through the endeavors of Mr. Patrick Simpson, a neighbor minister, ingeniously confessed his guilt.”

On February 11 there was a public fast, and Christian was present in church all day, — listening to three sermons ; certainly a good day’s work. That evening she had a sharp attack; “ and when the fit was over,” we read that she had to hear another discourse. “ Mr. Simpson, going about family worship, did expound Psalm cx., and speaking of the limited power of the adversaries of our Lord Jesus Christ, from the latter part of verse 1, she was on a sudden seized with another grevious [sic] fit, in which she put out of her mouth some blood, which raised grounds of fear and jealousy in the minds of spectators that something in her mouth, hurting her, had been the occasion of it ; yet they could not get her mouth opened, though they used means to open the same, her teeth being close set. And in the interval of the fit, she being asked if she found anything in her mouth that had been the occasion of her putting out of blood, she replied she found nothing, nor knew the cause thereof; but opening her mouth, those present found one of her double teeth newly drawn out, but knew not what became of the tooth ; for though search was made for the same, it could not be found. After which,” we are told, “ the minister proceeded [with his discourse], but was again interrupted by her renewed fits, yet closed the exercise with prayer, after which, without more trouble, she was taken to her bed.”

She went on in this way accusing more people, a midwife and others, up to a certain Sunday morning near the end of March, when it all stopped. It appears to have been about this time that the final report was made by the commissioners to the Privy Council of the doings of the witches. In eight days a new commission was appointed, “ not merely to examine, but now actually to try the accused persons, and sentence the guilty to be burned or otherwise executed to death, as the commissioners should incline.” The commission met, heard a sermon by Mr. Hutchinson on the stimulating text. “ Thou shalt not suffer a witch to live,” and in a day or two adjourned for a month. Three confessions had been heretofore obtained, and it was desired that the clergy should try in this interval to get more of them. This seems to have been regarded as very important; and they succeeded in getting two more on the morning that the commission met. It is strange that neither of these two “ confessants ” appears to have been put on trial. Twenty-four persons had been accused. Seven of them were tried before a jury, and all convicted. After conviction one confessed, and committed suicide in prison the same night. The other six, including Katherine Campbell and Agnes Naesmith, and at least two of the earlier “confessants,” were burned at Paisley on June 10, 1697.

Now, although I have been drawn into this long narrative, my chief concern is with the arguments and the trial. We have no full report; it appears, however, that they had the testimony of Dr. Brisbane, the Glasgow physician and expert, of Christian Shaw herself, now restored and in her right mind, of the five surviving “ confessants,” and of many others. The accused had an advocate, and in this they were more fortunate than a witch tried in England would have been at that time.

Observe, then, that this Scotch case is very different from that of the Suffolk Witches, in that the person bewitched testified here, and that five of the alleged witches also testified. In this way there was brought into the case a body of what was called “ spectral evidence,” which Sir Matthew Hile did not have to deal with. All of the " confessants" testified that they had personally seen the devil in one or another shape, and had been carried through the air in “flights ; ” they had met with the devil and companies of witches, being all invisible, and had appeared to Christian Shaw while unseen to everybody else, and put pins and hair, cinders, and the like into her mouth, and had, while invisible, by upsetting boats and otherwise, assisted in several murders.

The testimony of the expert, Dr. Brisbane, was of course important. It was much cooler than that of Sir Thomas Browne in the case of the Suffolk Witches. He adhered, at the trial, to a deposition which he had previously given, in which he had said that he found Christian Shaw, on her first coming, “ brisk,” “ florid in color,” “ cheerful,” and “ every way apparently healthful,” and that he saw nothing in what took place during her first visit to him — the convulsive motions and groans and talk against Campbell and Naesmith — which was not “ reducible to the freaks of hypochondriac melancholy ; ” and at that time he treated her accordingly, with advantage. But what he could not explain was what happened afterwards.

He was often with her, he said, and “ observed her narrowly, so that he was confident she had no visible correspondent to supply hair, straw, coal cinders, hay, and the like, all of which on several occasions he saw her put out of her mouth without being wet; nay, rather as if artificially dried, and hotter than the natural warmth of her body. . . . Were it not for the hay, straw, etc., he should not despair to reduce the other symptoms to their proper classes in the catalogue of human diseases.” At the trial, referring to these previous statements, the doctor declared that in his opinion these things “ did not proceed from natural causes arising from the patient’s body.” Now as regards this testimony by Dr. Brisbane, one observes no statement at all that he had at any time had the girl searched. There is also no statement, like Sir Thomas Browne’s, that he himself believed in witchcraft or thought these strange occurrences traceable to that; and none that he absolved the girl from cheating. It is, as we have it, only a guarded declaration that these things are not imputable, in his opinion, to any bodily disease. If this was all he meant to say, — and it seems to have been so, — we can hardly excuse Dr. Brisbane from the charge of a cunning or cowardly unwillingness to intimate his whole mind ; one can easily guess how a more frank expression as regards imposture on the part of the Laird of Bargarran’s daughter, and as touching the folly and credulity of the Presbytery of Paisley, and generally of the learned and fashionable world of Glasgow and of all Scotland, might have affected the prosperity of a famous and successful physician : but it was the part of a scholar and of a man, at such a time, to say what be thought. If he had done it, it looks very much as if he might have saved the lives of seven poor wretches who afterwards died for this, and might have checked the horrid superstition that had many a victim yet. In reality, this canny statement of the expert (if it be really his exact statement, and not a poor report of it),³ “ that in his opinion the things mentioned in his attestation did not proceed from natural causes arising from the patient’s body,” was pressed upon the jury as saying that it came from no natural causes at all. These things, said the government’s advocate to the jury, were “ deponed by Dr. Brisbane, in his opinion, not to proceed from a natural cause.” He did not say that; he said something very different indeed from that, and yet something that might easily be taken for it.

But not yet, as regards this Scotch case, am I speaking of what seems to me its most interesting feature, the illustration it furnishes of the use of legal machinery in ascertaining questions of fact touching the supernatural. This is found in the two arguments for the government to which I have referred, — one to the court, the other to the jury. There is something very ghastly in the application which they furnish of the formal precision of legal and logical methods, and of the analogies of natural science to a consideration of all this wretched compound of imposture and superstitious misconception which was laid before the jury. There came first a long argument to the court, on the question of receiving the “spectral evidence ; ” that is, the testimony of the five “confessants ” and of Christian Shaw to the supernatural sights and sounds and communications which they had had, — all of which was ultimately received and submitted to the jury. The line of argument was this : You have here, the counsel said to the court, a case, where the witchcraft is sufficiently proved, and also the fact, that these accused persons are the witches ; and the question is of admitting in such a case, necessarily involving, as it does, the existence and present exercise of supernatural influences, the testimony of six persons testifying to their own seeing and hearing of certain things, — things which are in their nature objects of sense. The crime of witchcraft is an occult and secret one ; witches work in secret and invisibly to most persons. “ It is a part of the witches’ purchase from the devil that they cannot be seen at some occasions ; so that the abominations committed then would remain unpunished if such witnesses were not admitted.” When these witnesses testify to going and coming from meetings, especially on foot ; falling down and worshiping the devil, then under a corporeal shape (and he had such a shape when he tempted our Saviour) ; the murdering of children by a cord and napkin; the tormenting of others by pins, etc., they speak of plain objects of sense and are to be believed. It is said to be dangerous to allow this, since Satan may have represented others by false shapes. But here other facts point the same way, and, besides, experience and the opinion of the wisest divines, lawyers, philosophers, physicians, statesmen, judges, and historians, at home and abroad, are that the apparitions of witches are commonly real, and wo must go by what is generally true. Moreover, it is easier for the devil to transport people in hurricanes, as in the case of Job, protecting their faces so that they are not choked with the rush of air, than it is to form the curious miniature of fictitious transactions on their brain. It is both a greater crime and pleasure to act in truth, and the devils and witches do so in fact (unless the place be far distant or the party indisposed), and this is supported by the writers and witches of all nations and ages. The extraordinary nature of these things is not to diminish the certainty of these proofs, for in law, as in nature, reality and not simulation is to be presumed. Our Saviour’s miracles were the subject of the testimony of witnesses, his transfiguration, walking on the waters, standing in the midst of the disciples while the doors were shut, and “arguing assurance by their senses that a spirit had not flesh and bones.” And if it still be said that it is not conceivable how the girl or witnesses could see what the bystanders could not see, besides its being impossible that real bodies should enter at closed doors and windows and should not intercept the sight of what is behind them, the answer is : (1) that we are not to deny proved facts because philosophers have not certainly reached yet the invisible manner of their existence, like the facts of nature that the loadstone draws iron and the compass turns always to the pole, and the facts of Scripture that an angel (and the devil was an angel once, and retains as yet his old power) smote the Sodomites so that they could not see the door while they did see the house, and that Balaam’s ass saw the angel when his master could not see him ; and (2) that where the fact, as here, is proved, it is enough for us to suggest a possible way in which it may come about; such a way is this, namely : Satan is a personage whose knowledge and experience make him perfect in optics and limning, and he is also very strong and agile, “ whereby ” (and here I cannot do justice to the passage without exact quotation) “ he may easily bewitch the eyes of others to whom he intends that his instruments should not be seen, in this manner as was formerly hinted, namely, he constricts the pores of the witches’ vehicle, which intercepts a part of the rays reflecting from her body ; he condenses the interjacent air with grosser meteors blown into it, or otherwise does violently agitate it, which drowns another part of the rays ; and lastly he obstructs the optic nerves with humors stirred towards them : all which joined together may easily intercept the whole rays reflecting from their bodies, so as to make no impression upon the common sense; and yet, at the same time, by the refraction of the rays gliding along at the fitted sides of the volatile couch, wherein Satan transports them, and thereby meeting and coining to the eye, as if there were nothing interjacent, the wall or chair behind the same bodies may be seen ; as a piece of money lying out of sight in a cup becomes visible how soon the medium is altered by pouring in some water on it. Several of your number do know that the girl declared that she saw and heard the door and windows open at the witches’ entry, when, no doubt, the devil had precondensed a soft postage on the eyes and ears of others to whom that was unperceived. So Apolonius escaped Domitian’s flight, and Giges became invisible by his magical ring. John of Sarisberrie tells us of a witch that could make anything not to be seen ; and Mejerus relates another that had the like power. Some Italian witches of greater than ordinary wit confessed to Grilandus the devil opening doors and windows for them, though the more ignorant [witches] by a fascination think themselves actors of this ; whence [our lawyer concludes] it ought not to be doubted by any reasonable man what in all times and places is so incontestable fact.”

There was much more in this singular argument, but surely enough has been quoted to mark the nature of the idle and wandering speculations into which a legal discussion may degenerate when it enters upon such questions as these. What the considerations were that prevailed with the court we do not know. But in fact, as I said, all this evidence was received ; some of it under a cum nota, that is a qualification that it must have corroboration, and the rest as that of persons not old enough to be sworn, and so to be taken with caution.

The jury at the trial sat continuously for twenty-six hours. Such was the custom of that time even in England, — to go through a case without adjourning. One sees many examples of it in the State Trials. Twenty hours were taken up with the putting in of the evidence and incidental arguments; and then came six hours for the final addresses and the final deliberation.

The government advocate’s argument to the jury was brief. (1.) He drew their attention to the extraordinary nature of these occurrences, which on the one hand are true, as being proved by unexceptionable witnesses, and on the other are very strange, of a sort not explainable by the ordinary course of nature. He recited all that I have mentioned, and more: such as Christian Shaw’s talking once with her invisible tormentors, and asking them about their red sleeves, and then seizing these invisible people and pulling away two pieces of red cloth, unlike any in the house ; and again her glove being lifted from the floor by an invisible hand. It is, then (so he argued), plainly to be concluded that there is witchcraft here. (2.) He enlarged upon a variety of circumstances tending to show that these accused persons were the witches : such as that all of them had “ insensible marks” on their bodies, that is places which were not sensitive ; most of them had long been reputed to be witches ; none of them ever shed tears ; the touch of all of them set the girl into torments; all were named by her, in her fits or out of them. These things, he said, which the wisdom and experience of all nations recognize as the marks of a witch, and which are so many discoveries by Providence of a crime that would otherwise remain in the dark, all concur in these persons, and such a concurrence was never known to happen when they were incorrect. (3.) There are the positive depositions of the “ confessants ” to the actual sight of the devil and the witches at their work. As to these depositions and Christian Shaw’s testimony, the “ spectral evidence,” he drew attention to circumstances that confirmed the witnesses ; for example, their concurrence, and the fact that they accused their own relatives. Of one of them the advocate says, " She went on foot to the meeting [of witches] with her father, except only that the devil transported them over the water Clyde, which was easy to the prince of the air, who does far greater things by his hurricanes.”

Such were these arguments, the feature which gives its peculiar interest to this Scotch case. It will be observed that, in a sense, they relied upon the same sort of thing that would be relied upon to-day, namely, the testimony nuder oath of persons speaking to what they say they have seen and heard, and the testimony of experts negativing (for so this testimony was interpreted) any known natural cause as competent to explain the facts thus proved. It is true that documents were laid before the jury that would not be received to-day, — for instance, a long narrative of events prepared by the Presbytery of Paisley; but the purport of it was the same in kind as that of the testimony. The one radical difference between the trial as it was conducted then and as it would have been conducted later, while it was still possible to try for witchcraft (that is, down to 1736), lay in the different preconceptions, the different mental furniture and mental attitude, of the judge and jury at the trials. The " spirit of the age ” appears in the things of which a tribunal will take judicial notice, as the lawyers say.

A great and admirable English judge, Chief Justice Holt, who came in at tiie English Revolution and sat till 1710, tried eleven cases of witchcraft, but there was never one conviction. As has been truly said, he went far to put an end to witchcraft trials by simply directing the prosecution, in 1702, of one Richard Hathaway, who had declared himself bewitched, and had assaulted a woman as being the witch. At that trial Holt showed, as North had showed, what a shrewd and sensible judge might do and might always have done, even with all the danger from juries at that time : he himself questioned the witnesses narrowly and in a way to reveal imposture. For example, a witness had said that he saw Hathaway with his eyes open and yet unable to see.

Holt. " And yet you say he was blind ; how could that be ? ”

Witness. . . . " I wagged the hair of his eyelids and put a candle to his eyes, and he took no notice of it.”

Holt. " How could you know that he did not see ? ”

Another witness, a woman, testified that she thought Hathaway bewitched.

Holt. . . . ” Did you ever see anybody bewitched ? ”

Witness. “ Yes, I have been so myself.”

Holt. " How do you know you were bewitched ? ”

The woman answered, among other things, that she " flew over the heads of them all.”

Halt. " Woman, can you produce any of those women that saw you fly ? ”

Witness. " It was when I was a child. They are dead.”

Hathaway pretended to have fasted a long time. One of the witnesses called by him was a doctor. When the counsel had done with him, Holt put him two questions. “ Doctor, do you think it possible, in nature, for a man to fast a fortnight ? ”

Witness. ” I think not, my lord.”

Holt. ” Can all the devils in hell help a man to fast so long ? ”

Witness. " No, my lord, I think not: and that made me to suspect him.”

And then in charging the jury Holt put the question to them, not whether Hathaway was bewitched, but whether " he was under a delirium of his mind, and did fancy himself to be bewitched.”

Here we have a man whose mental outfit was of the modern style. This temper was not favorable to prosecutions for witchcraft. If it had been exhibited by Sir Matthew Hale or the Scotch judges, there would probably have been no convictions and certainly no executions.

James B. Thayer.

1. This case is found in the State Trials and elsewhere. Stephen gives a short account of it in his History of the Criminal Law, i. 378, to which I am indebted for some references.↩
2. As regards this experiment with the toad, it is singular how the human fancy holds on to such conceptions. A near relative of mine, who lived in Andover eighty years ago, has told me that she went to school there, as a very young child, to an old woman who was generally believed to he a witch. On a neighboring farm, one day, the churning did n’t work right, and the failure of the butter to come was attributed to the machinations of this old woman. The butter-makers resorted to the usual way of exorcising the evil influence by heating the spit and thrusting it red-hot into the cream. It turned out that the old woman at once appeared with a burned hand ; and this was widely received as conclusive evidence that she was a witch. This was in the nineteenth century. Of this old woman, as of Moll Pitcher of Lynn, who was known to my friend, I was told that she did not discourage this opinion, for it was worth something to her in the gainful occupation of fortune-telling.↩
3. We cannot be quite sure ; but one suspects Dr. Brisbane grievously. This deposition and subsequent evidence are given at pages 129, 130, and 140 of The Witches of Renfrewshire, Paisley, Alexander Gardner, 1877.↩