An engraving of a portrait of Sir Matthew Hale (1609-1676) by Thomas Phillibrown, likely mid-C (no date recorded). [Library of Congress, Prints & Photographs Division]
The Female Witch Myth advocated by English Jurist Matthew Hale
Hale's writings & court rulings on women were far-reaching & long-lasting. In 1662, he was involved in one of the most notorious of the 17C English witchcraft trials, where he sentenced 2 women to death for witchcraft. The judgment of Hale in this case was extremely influential in future cases in England & in the British American colonies, & was used in the Salem witch trials to justify the forfeiture of the accused's lands. As late as 1664, Hale used the argument that the existence of laws against witches is proof that witches exist.
...Spectral evidence was testimony in which witnesses claimed that the accused appeared to them & did them harm in a dream or a vision. The Court of Oyez & Terminer that presided over the Salem witch trials permitted this form of evidence to be presented in support of accusations of witchcraft. According to Reverend John Hale, (Note: John Hale (1636-1700) was a Puritan pastor of Beverly, Massachusetts, who took part in the Salem witch trials in 1692) who witnessed those proceedings, the court based its decision to use spectral evidence on the opinion of Matthew Hale, one of the leading legal authorities in England. In this post, I take a look at the case that the Salem judges relied on & the record of the instructions Matthew Hale gave in that trial.
The trial was one of 2 well-known witch trials ending in conviction that took place in Bury St. Edmunds, England, in the mid-17C. The earlier trial, which was instigated by Matthew Hopkins, sometimes called the Witchfinder General, resulted in the execution of 18 people on a single day, August 27, 1645...The case that Matthew Hale presided over took place some 17 years later from March 10-13, 1662, & it dealt with charges of witchcraft against 2 women from Lowestoft, a town in Suffolk some 50 miles from Bury St. Edmunds. Their names were Amy Duney & Rose Cullender. Neighbors leveled a number of accusations against these 2 women; chief among them, that they had bewitched their children, & that these enchantments led to the death of a child in one case.
Title page of “A Tryal of Witches at the Assizes held at Bury St. Edmunds in 1682.” an anonymous pamphlet giving an account of the Bury St. Edmunds Witchcraft Trial. The title page gives the incorrect year of the trial as 1664. The correct year, 1662, is mentioned in original records of the indictments.
The trial is recorded in an anonymous pamphlet published in 1682. (It can be found online here.) In a brief foreward, the author explains that he chose to make the story public so that people could see the awkward situation it created: on the one hand, many people at the time of the pamphlet’s writing doubted that witchcraft was real, & implicitly that it should form the basis of any criminal charge; on the other hand, several highly influential men were involved in this trial – namely Hale, who was the Chief Baron of the Exchequer at the time of the trial; the medical doctor & philosopher Thomas Browne (Note: Sir Thomas Browne (1605-1682) was an English polymath & author of varied works in diverse fields including science, medicine, & religion.); & Sir John Kelyng (Note: John Kelynge KS (or Kelyng) (1607–1671) was an English judge & politician who sat in the House of Commons from 1661 to 1663.), who became Chief Justice of the King’s Bench only 3 years after the trial.
Was the trial an embarrassment? Or on the contrary does the weight of tradition force conclusions such as the ones Hale arrived at in that courtroom? Or both?
In the pamphlet’s record of his instructions, Hale explained crisply that the jury must consider only “first, whether or no these children were bewitched, [&] secondly, whether the prisoners at bar were guilty of it.” He stated that the question of whether witchcraft is real was not under discussion, since its existence was recognized in the Bible, & Parliament had already recognized its reality in several criminal statutes. He pointed out that, “the wisdom of all nations had provided laws against such persons [witches], which is an argument of their confidence of such a crime.” (A Tryal of Witches, p. 55)
The crime of witchcraft was certainly spelled out in a number of statutes, but it was no simple matter to decide how to prove that a given ill effect was caused by a particular person’s specific act of witchcraft. The nature of witchcraft allegedly depended on occult forces, both invisible & untraceable by direct evidence. What sort of evidence could then support a conviction? (Gaskill, p. 40)
The pamphlet does not directly record Hale’s answer to this question. Indirectly, one can see the kind of evidence that he admitted: testimony by the parents of the injured children stating that they came into verbal conflict with the accused & that the accused made statements threatening the health of their children & in one case the life of a child; testimony by the parents stating that they witnessed paranormal events that they could connect to the accused; testimony by the parents regarding the children’s abnormal psychic & physical states following verbal altercations with the accused; & physical evidence of pins & nails allegedly vomited by the children. The court also permitted the parents to recount that the children had visions of the accused entering their homes & standing menacingly at the foot or head of their beds.
The children were permitted to speak & to give testimony at the trial. One of the afflicted, an 18-year-old girl, reported having visions of Rose Cullender, who appeared to her in her home – one time trying to lure her out of the house, another time at the foot of her bed, & another time appearing with a large dog. In addition to these visions, she suffered violent fits, that included temporary blindness & vomiting metal pins. This young woman came to court with the intention to testify, but briefly “fell into her fits” & was removed from the court until she could regain her self-possession. When she returned & was sworn in, she appeared entranced again & “shrieking out in a miserable manner” only repeated, “burn her, burn her, burn her.” Hale advised the jury at the end of the trial to allow the evidence to stand as presented. (A Tryal of Witches, p. 55)
Another unusual piece of evidence came in the form of an experiment performed with one of the afflicted children in the courtroom. Some of the children were not able to speak & appeared to be in a trance-like state, one feature of which was that they clenched their fists tightly. The record states that men in their presence attempted to open their fists & that they were unable to, so strongly were they closed. But at the request of the court, Rose Cullender approached & touched one of the children. This made the child open her fist. A man in the court raised a skeptical question about this procedure, so the experiment was repeated. This time, they covered the child’s face with an apron so that she could not see who touched her. Meantime, several people touched her. Nevertheless, she only opened her fist when Rose Cullender touched her. This did not convince the skeptic. (A Tryal of Witches, pp. 42-45) But according to the record, it stood as evidence without special instructions from Hale.
Thomas Browne made a statement in which he acknowledged the reality of witchcraft, & proposed that the devil has the ability to influence the humors of the body to produce physical illness & that he does so at the behest of witches. (A Tryal of Witches, pp. 41-42)
John Kelyng made a statement in which he acknowledged that the children were bewitched, but he objected that the evidence from the children’s imagination was insufficient for a conviction. He argued that if it were accepted, “no person whatsoever can be in safety, for perhaps they might fancy another person who might altogether be innocent in such matters.” (A Tryal of Witches, p. 40)
Rose Cullender & Amy Duney maintained their innocence throughout the trial & after their conviction. They died on March 17, 1662, by hanging...
Darr, Orna Alyagon. “Experiments in the Courtroom: Social Dynamics & Spectacles of Proof in Early Modern English Witch Trials.” Law & Social Inquiry, Vol. 39, No. 1 (Winter 2014), pp. 152-175.
Gaskill, Malcolm. “Witchcraft & Evidence in Early Modern England.” Past & Present, No. 198 (Feb. 2008), pp. 33-70.
Geis, Gilbert. “Lord Hale, Witches, & Rape.” British Journal of Law & Society, Vol. 5, No. 1 (Summer 1978), pp. 26-44.
Geis, Gilbert. A trial of witches: a seventeenth-century witchcraft prosecution. London ; New York : Routledge, 1997.
Holmes, Clive. “Women: Witnesses & Witches.” Past & Present, No. 140 (Aug. 1993), pp. 45-78.