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THE SPECIAL COURT OF OYER AND TERMINER. HOW IT WAS ESTABLISHED. WHO RESPONSIBLE FOR IT. THE GOVERNMENT OF THE PROVINCE CONCENTRATED IN ITS CHIEF-JUSTICE

So great was the pressure made upon Sir William Phips, by the wild panic to which the community had been wrought, that he ordered the persons who had been committed to prison by the Salem Magistrates, to be put in irons; but his natural kindness of heart and common sense led him to relax the unjustifiable severity. Professor Bowen, in his Life of Phips, embraced in Sparks's American Biography, [vii., 81.] says: "Sir William seems not to have been in earnest in the proceeding; for the officers were permitted to evade the order, by putting on the irons indeed, but taking them off again, immediately."

On Tuesday, the twenty-fourth of May, the Council met to consider the matter specially assigned to that day, namely, the nomination and appointment of Judicial officers.

The Governor gave notice that he had issued Writs for the election of Representatives to convene in a General Court, to be held on the eighth of June.

He also laid before the Council, the assigned business, which was "accordingly attended, and divers persons, in the respective Counties were named, and left for further consideration."

On the twenty-fifth of May, the Council being again in session, the record says: "a further discourse was had about persons, in the several Counties, for Justices and other officers, and it was judged advisable to defer the consideration of fit persons for Judges, until there be an establishment of Courts of Justice."

At the next meeting, on the twenty-seventh of May, it was ordered that the members of the Council, severally, and their Secretary, should be Justices of the Peace and Quorum, in the respective Counties where they reside: a long list, besides, was adopted, appointing the persons named in it Justices, as also Sheriffs and Coroners; and a Special Court of Oyer and Terminer was established for the Counties of Suffolk, Essex, and Middlesex, consisting of William Stoughton, Chief-justice, John Richards, Nathaniel Saltonstall, Wait Winthrop, Bartholomew Gedney, Samuel Sewall, John Hathorne, Jonathan Corwin, and Peter Sargent, any five of them to be a quorum (Stoughton, Richards, or Gedney to be one of the five).

When we consider that the subject had been specially assigned on the seventeenth, and discussed for two days, on the twenty-fourth and twenty-fifth, to the conclusion that the appointment of Judges ought to be deferred, "until there be an establishment of Courts of Justice,"—which by the Charter, could only be done by the General Court which was to meet, as the Governor had notified them, in less than a fortnight—the establishment of the Court of Oyer and Terminer, on the twenty-seventh, must be regarded as very extraordinary. It was acknowledged to be an unauthorized procedure; the deliberate judgment of the Council had been expressed against it; and there was no occasion for such hurry, as the Legislature was so soon to assemble. There must have been a strong outside pressure, from some quarter, to produce such a change of front. From Wednesday to Friday, some persons of great influence must have been hard at work. The reasons assigned, in the record, for this sudden reversal, by the Council, of its deliberate decision, are the great number of criminals waiting trial, the thronged condition of the jails, and "this hot season of the year," on the twenty-seventh of May! It is further stated, "there being no judicatures or Courts of Justice yet established," that, therefore, such an extraordinary step was necessary. It is, indeed, remarkable, that, in the face of their own recorded convictions of expediency and propriety, and in disregard of the provisions of the Charter which, a few days before, they had been sworn to obey, the Council could have been led to so far "take counsel of passion," as to rush over every barrier to this precipitate measure.

No specific reference is anywhere made, in the Journals, to Witchcraft; but the Court was to act upon all cases of felony and other crimes. The "Council Records" were not obtained from England, until 1846. Writers have generally spoken of the Court as consisting of seven Judges. Saltonstall's resignation does not appear to have led to a new appointment; and, perhaps, Hathorne, who generally acted as an Examining Magistrate, and signed most of the Commitments of the prisoners, did not often, if ever, sit as a Judge. In this way, the Court may have been reduced to seven. Stephen Sewall was appointed Clerk, and George Corwin, High Sheriff.

Thus established and organized, on the twenty-seventh of May, the Court sat, on the second of June, for the trial of Bridget Bishop. Her Death-warrant was signed, on the eighth of June, the very day the Legislature convened; and she was executed on the tenth. This was, indeed, "precipitancy." Before the General Court had time, possibly, to make "an establishment of Courts of Justice" in the exercise of the powers bestowed upon it by the Charter, this Special Court—suddenly sprung upon the country, against the deliberate first judgment of the Council itself, and not called for by any emergency of the moment which the General Court, just coming on the stage, could not legally, constitutionally, and adequately, have met—dipped its hands in blood; and an infatuated and appalled people and their representatives allowed the wheels of the Juggernaut to roll on.

The question, who are responsible for the creation, in such hot haste, of this Court, and for its instant entrance upon its ruthless work, may not be fully and specifically answered, with absolute demonstration, but we may approach a satisfactory solution of it. We know that a word from either of the Mathers would have stopped it. Their relations to the Government were, then, controlling. Further, if, at that time, either of the other leading Ministers—Willard, or Allen—had demanded delay, it would have been necessary to pause; but none appear to have made open opposition; and all must share in the responsibility for subsequent events.

Phips says that the affair at Salem Village was represented to him as "much like that of Sweden, about thirty years ago." This Swedish case was Cotton Mather's special topic. In his Wonders of the Invisible World, he says that "other good people have in this way been harassed, but none in circumstances more like to ours, than the people of God in Sweedland." He introduces, into the Wonders, a separate account of it; and reproduces it in his Life of Phips, incorporated subsequently into the Magnalia. The first point he makes, in presenting this case, is as follows: "The inhabitants had earnestly sought God in prayer, and yet their affliction continued. Whereupon Judges had a Special Commission to find, and root out the hellish crew; and the rather, because another County in the Kingdom, which had been so molested, was delivered upon the execution of the Witches."—The Wonders of the Invisible World. Edit. London, 1693, p. 48.

The importance attached by Cotton Mather to the affair in Sweden, especially viewed in connection with the foregoing extract, indicates that the change, I have conjectured, had come over him, as to the way to deal with Witches; and that he had reached the conclusion that prayer would not, and nothing but the gallows could, answer the emergency. In the Swedish case, was found the precedent for a "Special Commission of Oyer and Terminer."

Well might the Governor have felt the importance of relieving himself, as far as possible, from the responsibility of having organized such a Court, and of throwing it upon his advisers. The tribunal consisted of the Deputy-governor, as Chief-justice, and eight other persons, all members of the Council, and each, as has been shown, owing his seat, at that Board, to the Mathers.

The recent publication of this letter of Governor Phips enables us now to explain certain circumstances, before hardly intelligible, and to appreciate the extent of the outrages committed by those who controlled the administration of the Province, during the Witchcraft trials.

In 1767, Andrew Oliver, then Secretary of the Province, was directed to search the Records of the Government to ascertain precedents, touching a point of much interest at that time. From his Report, part of which is given in Drake's invaluable History of Boston, [p. 728] it appears that the Deputy-governor, Stoughton, by the appointment of the Governor, attended by the Secretary, administered the oaths to the members of the House of Representatives, convened on the eighth of June, 1692; that, as Deputy-governor, he sat in Council, generally, during that year, and was, besides, annually elected to the Council, until his death, in 1701. All that time, he was sitting, in the double capacity of an ex-officio and an elected member; and for much the greater part of it, in the absence of Phips, as acting Governor. The Records show that he sat in Council when Sir William Phips was present, and presided over it, when he was not present, and ever after Phips's decease, until a new Governor came over in 1699. His annual election, by the House of Representatives, as one of the twenty-eight Councillors, while, as Deputy or acting Governor, he was entitled to a seat, is quite remarkable. It gave him a distinct legislative character, and a right, as an elected member of the body, to vote and act, directly, in all cases, without restraint or embarrassment, in debate and on Committees, in the making, as well as administering, the law.

In the letter now under consideration, Governor Phips says: "I was almost the whole time of the proceeding abroad, in the Service of their Majesties in the Eastern part of the country."

The whole tenor of the letter leaves an impression that, being so much away from the scene, in frequent and long absences, he was not cognizant of what was going on. He depended "upon the judgment of the Court," as to its methods of proceeding; and was surprised when those methods were brought to his attention. Feeling his own incapacity to handle such a business, he was willing to leave it to those who ought to have been more competent. Indeed, he passed the whole matter over to the Deputy-governor. In a letter, for which I am indebted to Mr. Goodell, dated the twentieth of February, 1693, to the Earl of Nottingham, transmitting copies of laws passed by the General Court, Governor Phips says: "Not being versed in law, I have depended upon the Lieu^t Gov^r, who is appointed Judge of the Courts, to see that they be exactly agreeable to the laws of England, and not repugnant in any part. If there be any error, I know it will not escape your observation, and desire a check may be given for what may be amiss."

The closing sentence looks somewhat like a want of confidence in the legal capacity and judgment of Stoughton, owing perhaps, to the bad work he had made at the Salem trials, the Summer before; but the whole passage shows that Phips, conscious of his own ignorance of such things, left them wholly to the Chief-justice.

The Records show that he sat in Council to the close of the Legislature, on the second of July. But the main business was, evidently, under the management of Stoughton, who was Chairman of a large Joint Committee, charged with adjusting the whole body of the laws to the transition of the Colony, from an independent Government, under the first Charter, to the condition of a subject Province.

One person had been tried and executed; and the Court was holding its second Session when the Legislature adjourned. Phips went to the eastward, immediately after the eighth of July. Again, on the first of August, he embarked from Boston with a force of four hundred and fifty men, for the mouth of the Kennebec. In the Archives of Massachusetts, Secretary's office, State House, Vol. LI., p. 9, is the original document, signed by Phips, dated on the first of August, 1692, turning over the Government to Stoughton, during his absence. It appears by Church's Eastern Expeditions, Part II., p. 82, edited by H. M. Dexter, and published by Wiggin & Lunt, Boston, 1867, that, during a considerable part of the month of August, the Governor must have been absent, engaged in important operations on the coast of Maine. About the middle of September, he went again to the Kennebec, not returning until a short time before the twelfth of October. In the course of the year, he also was absent for a while in Rhode Island. Although an energetic and active man, he had as much on his hands, arising out of questions as to the extent of his authority over Connecticut and Rhode Island and the management of affairs at the eastward, as he could well attend to. His Instructions, too, from the Crown, made it his chief duty to protect the eastern portions of his Government. The state of things there, in connection with Indian assaults and outrages upon the outskirt settlements, under French instigation, was represented as urgently demanding his attention. Besides all this, his utmost exertions were needed to protect the sea-coast against buccaneers. In addition to the public necessities, thus calling him to the eastward, it was, undoubtedly, more agreeable to his feelings, to revisit his native region and the home of his early years, where, starting from the humblest spheres of mechanical labor and maritime adventure, as a ship-carpenter and sailor, he had acquired the manly energy and enterprise that had conducted him to fortune, knightly honor, and the Commission of Governor of New England. All the reminiscences and best affections of his nature made him prompt to defend the region thus endeared to him. It was much more congenial to his feelings than to remain under the ceremonial and puritanic restraints of the seat of Government, and involved in perplexities with which he had no ability, and probably no taste, to grapple. He was glad to take himself out of the way; and as his impetuous and impulsive nature rendered those under him liable to find him troublesome, they were not sorry to have him called elsewhere.

I have mentioned these things as justifying the impression, conveyed by his letter, that he knew but little of what was going on until his return in the earlier half of October. Actual absence at a distance, the larger part of the time, and engrossing cares in getting up expeditions and supplies for them while he was at home—particularly as, from the beginning, he had passed over the business of the Court entirely to his Deputy, Stoughton—it is not difficult to suppose, had prevented his mind being much, if at all, turned towards it. We may, therefore, consider that the witchcraft prosecutions were wholly under the control of Stoughton and those, who, having given him power, would naturally have influence over his exercise of it.

Calling in question the legality of the Court, Hutchinson expresses a deep sense of the irregularity of its proceedings; although, as he says, "the most important Court to the life of the subject which ever was held in the Province," it meets his unqualified censure, in many points. In reference to the instance of the Jury's bringing in a verdict of "Not guilty," in the case of Rebecca Nurse, and being induced, by the dissatisfaction of the Court, to go out again, and bring her in "Guilty," he condemns the procedure. Speaking of a wife or husband being allowed to accuse one the other, he breaks out: "I shudder while I am relating it;" and giving the results at the last trial, he says: "This Court of Oyer and Terminer, happy for the country, sat no more." Its proceedings were arbitrary, harsh, and rash. The ordinary forms of caution and fairness were disregarded. The Judges made no concealment of a foregone conclusion against the Prisoners at the Bar. No Counsel was allowed them. The proceedings were summary; and execution followed close upon conviction. While it was destroying the lives of men and women, of respectable position in the community, of unblemished and eminent Christian standing, heads of families, aged men and venerable matrons, all the ordinary securities of society, outside of the tribunal, were swept away. In the absence of Sir William Phips, the Chief-justice absolutely absorbed into his own person the whole Government. His rulings swayed the Court, in which he acted the part of prosecutor of the Prisoners, and overbore the Jury. He sat in judgment upon the sentences of his own Court; and heard and refused, applications and supplications for pardon or reprieve. The three grand divisions of all constitutional or well-ordered Governments were, for the time, obliterated in Massachusetts. In the absence of Phips, the Executive functions were exercised by Stoughton. While presiding over the Council, he also held a seat as an elected ordinary member, thus participating in, as well as directing, its proceedings, sharing, as a leader, in legislation, acting on Committees, and framing laws. As Chief-justice, he was the head of the Judicial department. He was Commander-in-chief of the military and naval forces and forts within the Province proper. All administrative, legislative, judicial, and military powers were concentrated in his person and wielded by his hand. No more shameful tyranny or shocking despotism was ever endured in America, than, in "the dark and awful day," as it was called, while the Special Commission of Oyer and Terminer was scattering destruction, ruin, terror, misery and death, over the country. It is a disgrace to that generation, that it was so long suffered; and, instead of trying to invent excuses, it becomes all subsequent generations to feel—as was deeply felt, by enlightened and candid men, as soon as the storm had blown over and a prostrate people again stood erect, in possession of their senses—that all ought, by humble and heart-felt prayer, to implore the divine forgiveness, as one of the Judges, fully as misguided at the time as the rest, did, to the end of his days.

As all the official dignities of the Province were combined in Stoughton, he seems hardly to have known in what capacity he was acting, as different occasions arose. He signed the Death-warrant of Bridget Bishop, without giving himself any distinctive title, with his bare name and his private seal. It is easy to imagine how this lodging of the whole power of the State in one man, destroyed all safeguards and closed every door of refuge. When the express messenger of the poor young wife of John Willard, or the heroic daughter of Elizabeth How, or the agents of the people of the village, of all classes, combined in supplication in behalf of Rebecca Nurse, rushing to Boston to lay petitions for pardon before the Governor, upon being admitted to his presence, found themselves confronted by the stern countenance of the same person, who, as Chief-justice, had closed his ears to mercy and frowned the Jury into Conviction; their hearts sunk within them, and all realized that even hope had taken flight from the land.

Such was the political and public administration of the Province of Massachusetts, during the Summer of 1692, under which the Witchcraft prosecutions were carried on. It was conducted by men whom the Mathers had brought into office, and who were wholly in their counsels. If there is, I repeat, an instance in history where particular persons are responsible for the doings of a Government, this is one. I conclude these general views of the influence of Increase and Cotton Mather upon the ideas of the people and the operations of the Government, eventuating in the Witchcraft tragedy, by restating a proposition, which, under all the circumstances, cannot, I think, be disputed, that, if they had been really and earnestly opposed to the proceedings, at any stage, they could and would have stopped them.

I now turn to a more specific consideration of the subject of Cotton Mather's connection with the Witchcraft delusion of 1692.