Laws against witchcraft were pivotal in the creation of modern concepts of evidence; they also gave women a voice in court as witnesses
Halloween is nearly upon us and witches have been enjoying their annual spell in the limelight.
Among the coverage has been Channel 5’s recent documentary exploring the history of witchcraft called ‘Witch Hunt: A Century of Murder’, which charted the ‘witch-mania’ period that saw “mass trials and executions [erupt] across the country”.
From a modern viewpoint, it is hard to comprehend why law was ever introduced to facilitate this ‘century of murder’, and why the law promoted such blatant unfairness in practice.
It is perhaps all too easy to condemn past law-makers: if witchcraft was as widespread a social belief now as it was then, who knows how parliament and the courts would tackle it. What is clear is that the history of witchcraft was a vital point in English legal history — one which has shaped the law today.
The root of the offence is often traced back to the reign of King James I (1603-1625), but there were a number of laws that criminalised witch-behaviour long before this.
Witchcraft was originally punishable by the church courts as either a form of heresy (opinions and acts against the church) or treason (opinions and acts against the monarch).
It became a criminal offence in its own right in the Tudor period, but the legislation that sparked ‘witch-mania’ was the Witchcraft Act 1604. King James I — who took the throne in 1603 — was a strong advocate of the reality of witchcraft, and pushed for harsh legislation.
Until 1967, the English legal system endorsed a two-tier system of criminality similar to the modern approach of the USA: serious offences were felonies, and punishable by death, and less serious offences were misdemeanours, and punishable by, for example, imprisonment.
The 1604 Act criminalised a series of behaviours — including invoking evil spirits, and taking up dead bodies from their graves — which were made felonies, and therefore punishable by death.
Soon, communities across the country began to offer up poor, needy people to the courts as a form of social cleansing. Overall, it is estimated that 500 people were convicted of and executed for witchcraft. Contrary to popular perception, those found guilty were not burnt, at least not in England, but were hung by short-drop and died slowly of strangulation.
A far cry from the modern law’s intense focus on equality and non-discrimination, the (entirely gender neutral) offence was enforced on women much more frequently than men. The feminisation of witches developed across Europe in the 15th century for an infinite number of social reasons. Perhaps the most commonly cited is the belief that witches and the devil seal their demonic pact through sex, and it was therefore natural to assume that all witches were women.
The most interesting thing about the history of the offence is not the Witchcraft Act itself, but the legal tests developed by the courts to prove guilt or innocence.
People believed that witches existed, even top lawyers like Sir Edward Coke and Sir Matthew Hale. But people could not prove, in the legal sense, that witches existed.
Anyone who has studied the law of evidence will know that the English courtroom is heavily regulated — there are pages of rules on the admissibility and inadmissibility of evidence. This only existed in skeleton form in the 17th century, and could not be made to fit an offence which was virtually impossible to prove.
With no modes of proof available to them, the courts created a number of ‘witch tests’ to square this circle.
One novel method was to search women for ‘witch marks’ or ‘devil marks’, placed on the body by the devil. The finding of a mole, birthmark, rash, or any other mark could be the difference between life and death for accused witches.
The ‘swimming test’, which had been formally abolished in 1215, experienced a partial revival in the witch-hunt period. This involved plunging the defendant into a pool of water: if she rejected the waters of baptism and floated, then she was a witch. If she sank, she was innocent. Women have a higher proportion of body fat than men, which makes them more susceptible to floating — it was therefore difficult for women to ‘pass’ the test (especially uneducated females who did not think to exhale). They were subsequently hanged, and those that did sink often drowned.
Women were also found guilty on the back of their confessions. To torture a confession out of someone was forbidden, but the line between legality and illegality was often blurred. Suspects were, for example, intentionally deprived of sleep during questioning.
By modern standards of fairness, these ‘tests’ are unreliable, unjust, and unmerciful — and it was this realisation that ultimately led to the witch-hunt’s end. In an overwhelming number of cases, judges and juries simply were not convinced by the evidence put before them.
The perceived reliability of the ‘witch marks’ test suffered a sharp decline when John Gaule, a prolific Puritan cleric, pointed out in 1646 that many people have ‘natural wretts’. In the same year, the ‘swimming test’ was blasted as an offence against human conscience. Even confessions, formerly an unimpeachable proof, were met with an increasing scepticism.
Acquittals became more and more common, not because people stopped believing in witches, but because people felt unable to convict on the evidence put in front of them. Society began to perceive witchcraft as a secret thing known only to God, and therefore beyond the reach of the criminal justice system. The felonious component of the offence was formally abolished in 1735.
For all its bloody history, the law of witchcraft leaves an important legacy — it was a pivotal point in the development of the law of evidence. By rejecting the evidence put before them and returning ‘not guilty’ verdicts, judges and jurors began to exercise new ideas about the determination of truth.
The decline of the offence provided the precursor to the modern-day rule against hearsay — the courts began to dismiss rumours as proofs, on which proving witchcraft relied wholeheartedly.
Another unlikely positive effect of witch-mania was that it provided a platform from which the female voice could be heard in court by introducing unprecedented numbers of female witnesses into court proceedings.
Before witch trials, women were shut out of the criminal justice system, featuring as defendants and victims only. In the witchcraft era, women, as principal caregivers, were in prime position to tell the court about the suffering experienced by the ‘bewitched’ victims, and were therefore better placed to be witnesses. Today’s women lawyers are their descendants.
