The Salem witch trials and the Body of Liberties laws

William Stoughton

When the witch hunt started in Salem Village in February 1692, the Massachusetts colonists were waiting for Rev. Increase Mather to return home from England with a new governor, Sir William Phips, and joint monarchs William & Mary’s new charter. In the interim, four magistrates held examinations (hearings) to see if any of the accused should be held for trial. The jails in Salem, Boston, Ipswich, and elsewhere were filled with accused witches when Governor Phips arrived in May 1692. In short order, he established the special Court of Oyer and Terminer to handle the witchcraft cases, before heading northward to handle military issues with the Native Americans.

Led by Lieutenant Governor William Stoughton, the Salem court had an imposing job set before them: Discover witches during unruly public meetings filled with “afflicted accusers,” scared or disbelieving townspeople, and bewildering stories of possession, strange occurrences, unexplained deaths, animal familiars, black Sabbaths, and the like.

So, how did the judges and jury decide each case? In December 1641, the Massachusetts Bay Colony published the Body of Liberties. These 100 rules, which were based on both English law and Biblical law, were intended to be the foundation of the colony’s court system. And under rule 94, Capital Laws, number 2 it says:

“If any man or woman be a witch, that is, hath or consulteth with a familiar spirit, they shall be put to death.”

Deuteronomy 18:10-11 had a much larger definition: “There shall not be found among you any one that maketh his son or his daughter to pass through the fire, or that useth divination, or an observer of times, or an enchanter, or a witch, or a charmer, or a consulter with familiar spirits, or a wizard, or a necromancer.” But the Salem judges specifically were looking for Sarah Good’s yellow bird or Bridget Bishop’s cat.

So, let’s look at some of the other legal points and see how they pertained to the Salem Witch Trials.

26. Any man that findeth himself unfit to plead his own cause in any Court, shall have the liberty to employ any man against whom the Court doth not except, to help him provided he give him no fee or reward for his pains. This shall not except the party himself from answering such questions in person as the Court shall think meet to demand of him.

On 9 September 1692, sisters Sarah (Towne) Cloyse and Mary (Towne) Easty petitioned the court to allow testimony on their behalf, “seeing we are neither able to plead our own cause, nor is council allowed to those in our condition” (Records of the Salem Witch-Hunt, p. 620). These two eloquent women were fit to plead their cases, but clearly were not allowed to in the Salem court. They had no defense attorney and the judges were acting as prosecutors.

45. No man shall be forced by torture to confess any crime against himself nor any other unless it be in some capital case where he is first fully convicted by clear and sufficient evidence to be guilty. After which, if the cause be of that nature, that it is very apparent that there be other conspirators or confederates with him, then he may be tortured, yet not with such tortures as be barbarous and inhumane.

According to accused witch John Proctor, 18-year-old Richard Carrier and his 16-year-old brother Andrew Carrier, “would not confess anything till they tied them neck and heels till the blood was ready to come out of their noses” (Robert Calef, More Wonders of the Invisible World, 1700). The Carrier brothers had not even been indicted, much less been charged guilty before being tortured. 

46. For bodily punishments we allow amongst us none that are inhumane, barbarous, or cruel.

It goes without saying that peine forte et dure, or being pressed to death like Giles Corey, is “inhumane, barbarous, or cruel.” Once the rocks were placed on his prone form, even if the 70-year-old Corey changed his mind and started talking, he’d probably die from the internal injuries anyway. It took him two long and painful days to die.

47. No man shall be put to death without the testimony of two or three witnesses, or that which is equivalent thereunto.

Since witchcraft meant being in league with the Devil, it’s surprising that the justices did not rely on the opinion of several prominent ministers who were against using spectral evidence—visions seen only by the “afflicted accusers”—as the main reason to charge a person. Nor did the justices find conflict in accepting the words, visions, and bodily contortions of the “afflicted accusers” that, if believed, one could say were possessed by the Devil themselves. The “afflicted accusers” often supported each other's testimonies or mimicked each other during the trials while confessed witches claimed to have seen the accused at witch meetings. Robert Calef called the accusers “lying wenches…[who] let loose the devils of envy, hatred, pride, cruelty, and malice against each other.”

Since the court was using confessors to find more witches, the confessors were spared. In most circumstances, confessing to a crime was as good as or better than having two witnesses. Yet none of the confessors were hanged before Governor Phips stopped the trials.

94 Capital 11. If any man rise up by false witness, wittingly and of purpose to take away any man’s life, he shall be put to death.

For the many accused witches who pleaded their innocence, they must have thought the “afflicted accusers” or confessed witches were either possessed by the Devil or liars. However, after the trials were over, we don’t hear much backlash against the accusers or the judges and jury. Some disappear from the records, while others, such as Judge Stoughton, continued to be prominent members of society. None were accused of any wrongdoing from the trials themselves, though Judge Samuel Sewall, numerous jurymen, and accuser Ann Putnam Jr. publicly asked for forgiveness for their part in the trials. Their guilt was their only punishment.