A far more succinct version of this post was published by The Coffee Pot Book Club on 9 March 2020.
‘The early-modern European witch-hunts were neither orchestrated massacres nor spontaneous pogroms. Alleged witches were not rounded up at night and summarily killed extra-judicially or lynched as the victims of mob justice. They were executed after trial and conviction with full legal process.’
Crimen exceptum p.14
Gregory J Durston
Across Europe from the late fifteenth through to the eighteenth century thousands of people, women mainly, were tried and many cases executed for witchcraft. While belief in witches and their ability to cause harm was prevalent across Europe, the treatment of accusations varied from place to place depending on the local legal process. There were far fewer trials in countries such as Italy and Spain compared to France and central and southern Germany. Within the British Isles, England had around 500 executions over the period covered by the Witchcraft Acts (1547 to 1736) compared to Scotland where for a similar period (1563 to 1727) more than 1,500 of those accused were executed. Wales and Ireland had few cases as personal setbacks were more often ascribed to fairies or the little people rather than to witches.
Prior to the 1542 Act, most cases of witchcraft and sorcery were dealt with by ecclesiastical courts; such cases were generally infrequent and punishments were usually penances; ecclesiastical courts could not prescribe the death penalty. Occasionally serious cases did occur such as that of Margery Jourdemayne, the witch of Eye, tried and found guilty of treasonable witchcraft in 1441. She felt the full weight of the secular court and was burnt at the stake, the usual punishment for women convicted of treason. Burning was reserved for the crimes of heresy and, for women, for both high and petty treason (the murder of either a husband, or a master or mistress).
England’s the first witchcraft statute was enacted at the end of Henry VIII’s reign. The 1542 Act against Conjurations, Witchcrafts, Sorcery and Inchantments was the first time witchcraft was defined as a felony, a crime punishable by death at the first offence and forfeiture of goods and chattels. Few, if any, were prosecuted under this Act which was repealed in 1547 and not replaced until 1563. Any cases of witchcraft in this intervening period were once again heard by the ecclesiastical courts. Elizabeth I’s Act Against Conjurations, Enchantments and Witchcrafts prescribed the death penalty for invoking evil spirits or using witchcraft to bring about death. A first offence of using witchcraft to otherwise harm people or property, to find treasure or lost or stolen items, or to provoke a person to unlawful love earnt a year’s imprisonment and six hours in the pillory on market day four times in that year. Second offences could receive the death penalty. The 1604 Act against Conjuration, Witchcraft and Dealing with Evil and Wicked Spirits extended the death penalty to those using witchcraft to harm people in any way as well as introducing it for the new crimes of covenanting with evil spirits and taking up the dead from graves for use in witchcraft. This was the first time an English Act referred to a pact with the Devil, previous laws had concentrated on the damage done through malificium (an act of witchcraft intended to cause damage or injury).
Accusations of witchcraft often arose from ‘misfortune following anger’—an old woman reputed to be a witch requested charity of a neighbour, the neighbour refused, the old woman became angry and threatened the neighbour. Not long after the neighbour, a family member or even some of their livestock fell inexplicably ill or suffered some other misfortune. Cause and effect were clear as an early eighteen century physician wrote, ‘If any Mischief befalls a Person, or his Family, after the passionate, but impotent threats of an Old Woman, it’s a sure Argument of her being a Witch.’(1) It was not only their sex and aged that marked these women out as witches; usually there was someone else within their family who was believed to be a witch. Witchcraft was believed to run in families, passing from mother to daughter, witches almost being trained at their mother’s knee, like an apprenticeship.
The legal process began when a person believing him or herself to be the victim of witchcraft took a complaint to a Justice of the Peace(JP). This could prompt other neighbours to come forward with more complaints, some years old. The accuser would then bring the accused before the JP, often by obtaining a warrant and perhaps getting the assistance of a constable to seize her. In 1566 Richard Galis of Windsor marched a woman he believed to be the ringleader of a group of witches tormenting him to the local gaol but, in the absence of a warrant, the gaoler refused to taker her in.(2) When Galis then took the woman to Richard Readforth the mayor, an ex officio magistrate, Readforth ordered her release as he appears to have thought the allegations unsubstantiated. Sometimes the accusers conducted their own extra-judicial questioning before handing the accused over to the JP. Some JPs were active and enthusiastic in the hunt for evidence even beginning the investigations themselves. Brian Darcy who prosecuted Ursula Kemp and the St Osyth witches in Essex in 1582 and Roger Nowell the driving force behind the Pendle witch trials in 1612 are examples of such enthusiastic JPs.
The JP would then examine the accused and witnesses. Either he or his clerk would record their statements. This was not a word for word record but a summary of what was said with only key phrases quoted verbatim. The accused was strongly encouraged to confess. Given the practical difficulty of obtaining concrete evidence of witchcraft, a confession was of primary importance and the basis on which many convictions were reached. Some JPs would lie and promise the accused that they would be dealt with favourably if they confessed. While not considered a problem in the sixteenth century, by the eighteen this was grounds to exclude a confession. Many did not confess and, in the absence of a confession a case was less likely to proceed to trial or if sent to trial was less likely to secure a conviction. It is hard to understand why someone would confess to what they had not done but even as early as the 1580s, Reginald Scott(1538-1599), author of the Discoverie of Witchcraft, believed that the women confessing were the subject of some form of mental illness and no longer in full possession of their wits.
After taking the depositions, the JP decided whether the case should be dismissed or the accused should be indicted and committed to gaol or, in rare occasions, bailed. Bail was not regularly granted but where it was it was granted the presence was required of, at least, a second JP. It was occasionally granted in capital cases of witchcraft where the JP thought the evidence was weak and the accused could pay the substantial recognizances demanded. Depending on the timing of the accusation and indictment, the accused could spend months in gaol awaiting trial with some dying before trial as a result of the harsh conditions and the spread of typhus.
Various tests developed over the period to determine if the accused was, in fact, a witch. Some were carried out before the accused witch was presented to a JP or could be ordered by the JP or even by the trial judges. Apart from a witch’s confession or identification by another known witch, the inability to say the Lord’s Prayer without mistake, or to only be able to say it in Latin, were considered strong proofs. Respectable women, often midwives, were brought in to search the accused for a mark or growth anywhere upon her body that could be considered to be an extra teat used to suckle her familiar spirits. These familiars were small creatures such as cats, rats, dogs, ferrets, birds, frogs and toads believed to assist a witch in her magic. Depending on the zeal of the women searching, even conditions such as haemorrhoids might be considered a teat. A common test throughout the whole period of the operation of the Witchcraft Acts was scratching. A person afflicted by a witch’s magic scratched the suspected witch and drew blood; if this brought relief, the woman scratched was obviously a witch. Scratching was also seen as a way of defending oneself against witchcraft. Witches were also believed to have a place, or mark, on their bodies that was insensitive and did not bleed when pricked with a needle. Witch pricking was common in Scotland but appears not to have been used in England until the reign of James I.
Swimming involved throwing an accused witch into a body of water in the belief that if she sank she was innocent, if she floated it was proof she was a witch. With origins in the disused trial by ordeal, swimming was not used in witchcraft cases in sixteenth century England but reappeared in the seventeenth with the first reported incidence at Northampton in 1612. Courts were reluctant to order swimming as a test partly because of the danger of mob violence at a swimming. It hung on long in the public imagination – as late as 1857 a farmer approached a surprised magistrate for a warrant to swim a suspected witch. More troubling was the incident in 1863 in Essex where an elderly man, who was deaf and mute, was swum late at night in the presence of a crowd of eighty people. As the man died of pneumonia soon after, the instigators of the incident were tried for manslaughter, convicted and sentenced to six months with hard labour. (3)
While torture was not sanctioned in English law except by Privy Council warrant, to the modern mind some of these tests are extraordinarily close to it. Even the activities of Matthew Hopkins(1629-1647), the self-styled Witchfinder General, and John Stearne(1610-1670), freelancing in Essex and the surrounding counties during the upheaval of the Civil War, were considered to fall within the English ban on the use of torture. Their methods included keeping the accused awake and forcing her to walk up and down her cell until she confessed.
Those accused of capital witchcraft were usually tried at the Assizes though some cases were tried at the Quarter Sessions. Once the Assizes opened, a Grand Jury was called comprising persons of higher social standing and education than those who sat as petty jurors in the trial itself. It was believed that because of their standing they were no as credulous and less influenced by local social pressures. The Grand Jury received the bills of indictment and examined prosecution witnesses for each case to determine whether there were sufficient grounds to put the accused on trial. If the majority considered the evidence sufficient, billa vera (true bill) was written on the back of the bill of indictment and the case went to trial. If they considered there was not sufficient evidence the bill was endorsed ignoramus (we are ignorant [of]) and the case did not proceed.
The accused was brought into court manacled.(4) Despite having, under pressure, confessed her guilt to the JP, most accused witches pleaded not guilty at trial. The record of the examinations taken by the JP were read out in court and evidence heard from the victim, if living, or a member of the victim’s family. Others, including the JP and the women involved in the search for the witch’s teat, provided supporting evidence. Expert witnesses were sometime called such as physicians who, if called by the defence, could argue that the symptoms of the ‘witchcraft’ were the result of natural disease, though their evidence did not necessarily lead to acquittal. The accused rarely called her own witnesses, and was usually unrepresented. The progress of the case involved disputation between the accused and the accuser and witnesses. Hearsay was permitted and judges were interventionist, asking questions and involving themselves to a degree that would be considered improper today.
Records no longer exist for all counties but in the period 1570-1609 at the Assizes of the Home Circuit (Hertfordshire, Essex, Kent, Sussex and Surrey), for which the most complete records survive, 24% of witchcraft accusations resulted in execution; this was a similar rate to other crimes. Only 44% of those accused of witchcraft are recorded as having suffered punishment of any sort.(5) There were higher rates of conviction and execution at Quarter Sessions compared to the Assizes, partly because Assize judges were not influenced by local politics and disputes. The conviction rate for witchcraft offences actually declined under the 1604 Act, possibly due to a higher level of proof required. The glaring exception being the result of Hopkins and Stearne’s campaign in East Anglia.
Those found guilty of causing death by witchcraft were hanged, the same penalty as for murder by any other means, unless that murder was high or petty treason where the penalty was burning. The body of the executed ‘witch’ was then buried in unconsecrated ground. A fortunate few were granted a special royal pardon. During her reign Elizabeth I granted thirty-six pardons to people convicted of witchcraft.
In 1736, the 1604 Witchcraft Act was repealed but although the more educated sections of society, particularly the gentry and judiciary, no longer believed in witches and their ability to do harm, witchcraft beliefs lingered. Today, even in my sunny corner of the world, some still believe that harm can be done by supernatural means. One need only walk down any suburban shopping strip to find those who claim to be able to remove the evil eye and curses, contact the dead and foretell the future. Perhaps, even now, it is as it was five centuries ago, people needing to feel in control of their lives in the face of the unjust, the inexplicable and the sheer randomness of life.
(1) – Durston, Gregory J Crimen Exceptum, p. 112. Quotation from anonymous tract of 1712 A Full Confutation of Witchcraft.
(2) – Durston op cit p. 117
(3) – Durston op cit pp. 205-7
(4) – One of the best examples of a Tudor courtroom is the Council Chamber at the Norwich Guildhall. This can be seen in panorama at https://www.norwich360.com/guildhall.html
(5) – Sharpe, James Instruments of Darkness: Witchcraft in Early Modern England, Chapter 4.
Durston, Gregory J Crimen Exceptum: The English Witch Prosecution in Context Waterside Press, 2019
Gibson, Marian Early Modern Witches: Witchcraft Cases in Contemporary Writing Routledge, 2000
Macfarlane, Alan Witchcraft in Tudor and Stuart England: A regional and comparative study 2nd edn. Routledge, 1999
Rosen Barbara Witchcraft in England, 1558-1618 University of Massachusetts Press, 1991
Sharpe, James Instruments of Darkness: Witchcraft in Early Modern England Hamish Hamilton, 1996
– Court of Wards by an unidentified painter. Public domain via Wikimedia Commons
– Title page of Witches Apprehended, Examined, and Executed… (1613) showing a witch being swum. Wellcome Collection Attribution 4.0 International (CC BY 4.0)