In early 1692, several girls in the colonial village of Salem, Massachusetts began exhibiting strange symptoms, including muscle twitching, barking, and complaining of being pinched or pricked by invisible pins. The grieving girls quickly accused several local women of bewitching them, triggering a flood of accusations that plunged Salem and its environs into utter hysteria.
The trials that followed became an edifying tale as the accused lacked many of the legal protections we take for granted today.
By the time William Phips, the newly appointed royal governor of the Bay Province of Massachusetts, arrived from England in May, he accused witches of filling local jails. At the time, the colony operated without a charter, since the Crown had revoked the previous one due to repeated violations. Phips brought with him a new royal charter which gave the colony’s legislature the right to establish a court. But the process would take time and Phips had to act quickly.
In a fateful decision, Governor Phips created a special tribunal to try the accused witches of Salem. It was known as the Court of Oyer and Terminer, which means “hear and determine” in Old Northern French which was still the norm in English courts at the time. Although vestiges of this legal language still live on in the modern American legal system – the phrase “ooh, ooh, ooh” begins proceedings before the Supreme Court of the United States, among others – the Court of Oyer and Finish does not. hardly resembled the courts we know today. .
Witches trial: guilty until proven innocent
William Phips, Governor of Massachusetts from 1692 to 1694.
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When an accused witch appeared in Oyer and Finish court at the Salem witch trials, the law assumed she was guilty. Today, the presumption of innocence, or the idea that an individual accused of a crime is “innocent until proven guilty”, is one of the fundamental rights that underpin the criminal justice system. American.
Rooted in English common law, the presumption of innocence is nonetheless absent from major legal documents such as the Magna Carta or the English Bill of Rights of 1689. It is also not mentioned in the Constitution, but in statutes and laws. court decisions, including the Supreme Court. the Coffin decisions c. United States (1895) and Taylor v. Kentucky (1978), later established the presumption of innocence as one of the fundamental requirements of a fair trial, which none of the accused witches in Salem received.
Admission of hearsay evidence and absence of defense counsel
According to Len Niehoff, a professor at the University of Michigan law school who has given seminars on the Salem witch trials, the American legal system “includes two vital protections that were absent in Salem, making tragedy almost inevitable.” .
The first is the hearsay rule, a complex legal doctrine that essentially precludes the use at trial of statements made outside of court. Today, the hearsay rule “plays a critical role in ensuring that admitted evidence is reliable and is based on the personal knowledge of witnesses,” Niehoff explained in an email interview. “It prevents the admission of rumors, hypotheses and community gossip, precisely the kind of things that led to the Salem trials.”
The debate over whether to allow hearsay in court trials began around the time of the Salem trials, but the doctrine has evolved slowly. In a Harvard Law Journal item published in 1904, JH Wigmore wrote that “the history of the hearsay rule, as a distinct and living idea, did not begin until the 1500s and acquired full development and precision. final only in the early 1700s ”.
The second key legal protection that accused witches lacked in the Salem trials was the right to legal representation. “No defense attorney was present or authorized in these proceedings to object while their clients were being questioned, or to cross-examine those who testified,” Niehoff said. The inability to cross-examine was particularly overwhelming, he said, because “most of the witnesses against the accused witches could have been very effectively challenged.”
The witch trials relied on spectral evidence
The hanging of Bridget Bishop during the Salem Witch trials.
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Oyer and Finish’s court also relied heavily on spectral evidence. This evidence, according to US Legal.com “refers to testimony that the accused’s spirit or spectral form appeared to him in a dream while the accused’s physical body was in another location.” . The court’s acceptance of spectral evidence was controversial from the start, as it differed from accepted legal practice at the time.
After the execution of Bridget Bishop, who became the first accused witch to be hanged on June 10, 1692, Governor Phips asked a group of senior colony ministers, including Rise Mather and her son, Cotton, for their views on the witchcraft procedure, and the use of spectral evidence in particular. In a response written on behalf of the group, Cotton Mather urged caution regarding spectral evidence, suggesting that the devil may in fact take the form of an innocent person. But the statement ended with court backing, as ministers urged “the swift and vigorous prosecution of those who have made themselves odious.”
Despite the ministers’ lukewarm warning, the Oyer and Finish Court continued to convict the accused witches on the basis of spectral evidence. The crisis came to a head in late September 1692, when seven women and one man were hanged as wizards in one day. By this time, however, public support for the court was waning. Augmentation Mather made public his strong opposition to the use of spectral evidence in witchcraft trials in early October, arguing in his treatise Case of conscience that “it was better that ten suspected wizards escape, that an innocent be condemned”.
“It is important to note that the trials did not end because people stopped believing in witches,” says Niehoff. “They ended because people stopped believing that the trials were doing an effective job of identifying who the witches were.”
Legal Legacy of the Salem Witch Trials
On October 29, 1692, Phips dissolved the Court of Oyer and Finish, a decision that marked the beginning of the end of the Salem witch trials. In May 1693, Phips had pardoned and released all those who remained in prison for witchcraft.
In the years to come, judges and juries (and even one of the main accusers) apologized for their role in the trials. Then, in 1711, Massachusetts passed a law exempting people executed as witches and paying restitution to their families.
Almost a century after the Salem crisis, during the debate over the ratification of the Constitution, anti-federalist delegates (with success) argued that the document needed a “bill of rights” to guard against it. the violation of the fundamental freedoms of citizens by the federal government. .
Such arguments may have implicitly drawn their strength from the negative example of the Salem witch trials, when accused witches were deprived of even the most basic rights that should have been accorded them under English common law. This lesson continued to resonate in the centuries to come, especially during times of crisis such as the Red Fear and McCarthyism during the Cold War era.
“I find it difficult to draw a direct line between the Salem witch trials and any specific existing legal doctrine, but I would say they had an immense influence on how we think about the law,” says Niehoff.
“Trials are filled with edifying tales of the gravity of things that can happen when court proceedings do not offer certain minimum guarantees. They also provide a perpetual reminder of the consequences of fear uncontrolled by the kind of reasoned judgment the law demands. ”
