So far the case for the prosecution had been very strong, but it was in the final experiments in court, which were expected to clinch the evidence, that a very serious mishap occurred. A bewitched child, eleven years old, had been fetched into court. With eyes closed and head reclining upon the bar she had remained quiet until one of the accused was brought up, when she at once became frantic in her effort to scratch her. This was tried again and again and in every instance produced the same result. The performance must have had telling effect. But there happened to be present at the trial three Serjeants of the law. One of them, Serjeant John Kelyng, a few years later to become chief justice of the king's bench, was "much dissatisfied." He urged the point that the mere fact that the children were bewitched did not establish their claim to designate the authors of their misfortune. There were others present who agreed with Kelyng in suspecting the actions of the girl on the stand. Baron Hale was induced, at length, to appoint a committee of several gentlemen, including Serjeant Kelyng, to make trial of the girl with her eyes covered. An outside party was brought up to her and touched her hand. The girl was expecting that Amy Duny would be brought up and flew into the usual paroxysms. This was what the committee had expected, and they declared their belief that the whole transaction was a mere imposture. One would have supposed that every one else must come to the same conclusion, but Mr. Pacy, the girl's father, offered an explanation of her mistake that seems to have found favor. The maid, he said, "might be deceived by a suspicion that the Witch touched her when she did not." One would suppose that this subtle suggestion would have broken the spell, and that Mr. Pacy would have been laughed out of court. Alas for the rarity of humor in seventeenth-century court rooms! Not only was the explanation received seriously, but it was, says the court reporter, afterwards found to be true.
In the mean time expert opinion had been called in. It is hard to say whether Dr. Browne had been requisitioned for the case or merely happened to be present. At all events, he was called upon to render his opinion as a medical man. The name of Thomas Browne is one eminent in English literature and not unknown in the annals of English medicine and science. More than twenty years earlier he had expressed faith in the reality of witchcraft.[14] In his Commonplace Book, a series of jottings made throughout his life, he reiterated his belief, but uttered a doubt as to the connection between possession and witchcraft.[15]
We should be glad to know at what time Browne wrote this deliverance; for, when called upon at Bury, he made no application of his principles of caution. He gave it as his opinion that the bewitchment of the two girls was genuine. The vomiting of needles and nails reminded him very much of a recent case in Denmark. For the moment the physician spoke, when he said that "these swounding Fits were Natural." But it was the student of seventeenth-century theology who went on: they were "heightened to a great excess by the subtilty of the Devil, co-operating with the Malice of these which we term Witches, at whose Instance he doth these Villanies."
No doubt Browne's words confirmed the sentiment of the court room and strengthened the case of the prosecution. But it will not be overlooked by the careful reader that he did not by any means commit himself as to the guilt of the parties at the bar.
When the judge found that the prisoners had "nothing material" to say for themselves he addressed the jury. Perhaps because he was not altogether clear in his own mind about the merits of the case, he refused to sum up the evidence. It is impossible for us to understand why he did not carry further the tests which had convinced Kelyng of the fraud, or why he did not ask questions which would have uncovered the weakness of the testimony. One cannot but suspect that North's criticism of him, that he had a "leaning towards the Popular" and that he had gained such "transcendent" authority as not easily to bear contradiction,[16] was altogether accurate. At all events he passed over the evidence and went on to declare that there were two problems before the jury: (1) were these children bewitched, (2) were the prisoners at the bar guilty of it? As to the existence of witches, he never doubted it. The Scriptures affirmed it, and all nations provided laws against such persons.
On the following Sunday Baron Hale composed a meditation upon the subject. Unfortunately it was simply a dissertation on Scripture texts and touched upon the law at no point.
It is obvious enough to the most casual student that Sir Matthew Hale had a chance to anticipate the work of Chief Justice Holt and missed it. In the nineties of the seventeenth century, as we shall see, there was a man in the chief justiceship who dared to nullify the law of James I. It is not too much to say that Matthew Hale by a different charge to the jury could as easily have made the current of judicial decisions run in favor of accused witches all over England. His weight was thrown in the other direction, and the witch-triers for a half-century to come invoked the name of Hale.[17]
There is an interesting though hardly trustworthy story told by Speaker Onslow[18]—writing a century later—that Hale "was afterwards much altered in his notions as to this matter, and had great concern upon him for what had befallen these persons." This seems the more doubtful because there is not a shred of proof that Hale's decisions occasioned a word of criticism among his contemporaries.[19] So great, indeed, was the spell of his name that not even a man like John Webster dared to comment upon his decision. Not indeed until nearly the middle of the eighteenth century does anyone seem to have felt that the decision called for apology.
The third noteworthy ruling in this period anent the crime of witchcraft was made a few years later in Wiltshire by Justice Rainsford. The story, as he himself told it to a colleague, was this: "A Witch was brought to Salisbury and tried before him. Sir James Long came to his Chamber, and made a heavy Complaint of this Witch, and said that if she escaped, his Estate would not be worth any Thing; for all the People would go away. It happen'd that the Witch was acquitted, and the Knight continued extremely concern'd; therefore the Judge, to save the poor Gentleman's Estate, order'd the Woman to be kept in Gaol, and that the Town should allow her 2s. 6d. per Week; for which he was very thankful. The very next Assizes, he came to the Judge to desire his lordship would let her come back to the Town. And why? They could keep her for 1s. 6d. there; and, in the Gaol, she cost them a shilling more."[20] Another case before Justice Rainsford showed him less lenient. By a mere chance we have a letter, written at the time by one of the justices of the peace in Malmesbury, which sheds no little light on this affair and on the legal status of witchcraft at that time.[21] A certain Ann Tilling had been taken into custody on the complaint of Mrs. Webb of Malmesbury. The latter's son had swooning fits in which he accused Ann of bewitching him. Ann Tilling made voluble confession, implicating Elizabeth Peacock and Judith Witchell, who had, she declared, inveigled her into the practice of their evil arts. Other witches were named, and in a short time twelve women and two men were under accusation. But the alderman of Malmesbury, who was the chief magistrate of that town, deemed it wise before going further to call in four of the justices of the peace in that subdivision of the county. Three of these justices of the peace came and listened to the confessions, and were about to make out a mittimus for sending eleven of the accused to Salisbury, when the fourth justice arrived, the man who has given us the story. He was, according to his own account, not "very credulous in matters of Witchcraft," and he made a speech to the other justices. "Gentlemen, what is done at this place, a Borough remote from the centre of this large County, and almost forty miles from Salisbury, will be expended [sic] both by the Reverend Judges, the learned Counsayle there ..., and the Gentry of the body of the County, so that if anything be done here rashly, it will be severely censured." He went on to urge the danger that the boy whose fits were the cause of so much excitement might be an impostor, and that Ann Tilling, who had freely confessed, might be in confederacy with the parents. The skeptical justice, who in spite of his boasted incredulity was a believer in the reality of witchcraft, was successful with his colleagues. All the accused were dismissed save Tilling, Peacock, and Witchell. They were sent to Salisbury and tried before Sir Richard Rainsford. Elizabeth Peacock, who had been tried on similar charges before, was dismissed. The other two were sentenced to be hanged.[22]
Ten years later came a fourth remarkable ruling against witchcraft, this time by Justice Raymond at Exeter. During the intervening years there had been cases a-plenty in England and a few hangings, but none that had attracted comment. It was not until the summer of 1682, when three Devonshire women were arraigned, tried, and sent to the gallows by Justice Raymond,[23] that the public again realized that witchcraft was still upheld by the courts.