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Witch Hunt 1649

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Trial procedure

Suspected witches were typically first accused by their neighbours, or named as accomplices by other accused witches. Following accusation they were interrogated, most usually by the kirk session (the local church governing body). The interrogators aimed to extract a confession. Suspects were imprisoned and might be deprived of sleep. Sometimes other torture methods were used, even though torture was technically illegal except by special warrant from the privy council. If the evidence was deemed sufficiently compelling, the interrogators escalated the case. Often kirk sessions reported cases to the presbytery (which had ecclesiastical jurisdiction over the wider region), and the presbytery then informed the central authorities.

Commissioner

Trials could take place in Edinburgh’s court of justiciary, or in local courts convened following authorisation by the central authorities (usually the privy council, though in 1649-50 this job fell to the committee of estates; see the discussion of historical context). Before 1662, most trials took place in local courts. The central authorities issued a trial commission only if they judged the evidence against the accused to be overwhelming. Usually they required a confession. This meant that the outcome of local trials was generally a foregone conclusion. The pursuer who brought the case might himself become a commissioner, meaning that he had the power to nominate the jury and preside over the court as well as acting as formal prosecutor. Execution rates in local trials may have been higher than 90 percent.

Both central and local trials followed the same basic procedure. Before the trial formally began, officials were appointed and sworn, an assize (jury) was summoned and the commission was read. Then the court was ‘fenced’ (legally convened), and attendees were noted. In courts that required attendance of particular suitors, fines might be issued for absences. The pursuer or the lead advocate displayed to the court the letters of summons for the panel (accused) and prospective jurors, and any objections were heard. The clerk of the court then read the indictment, or dittay, to the accused. This often began with a formulaic introduction to the crime. The following example, edited by R. Burns Begg, comes from the 1662 trial of Agnes Murie, Bessie Henderson and Isabel Rutherford from Kinross-shire. It makes indirect reference to the reigning monarch Charles II:

Ye all three are indytit and accusit forsamuckle as by the Divine law of the Almighty God set down in his sacred word, especially in the 18 chap. Deut. and 20 chap. of Levit. made against the users and practisers of witchcraft, sorcery, charming, soothsaying, and against the seekers of help or responses of them, and in the 22 chap. of Exodus, the 18 verse, “Thou shalt not suffer a witch to live,” threatening and denouncing to the committers of such devilish practices the punishment of death. According to the whilk law of Almighty God it is statute and ordained by divers Acts of the Parliament of this Kingdom specially by the 73rd Act of the Ninth Parliament of our Sovereign Lord’s dearest great grandmother, Queen Mary of good memory, it is statute that no manner of person or persons of whatsomever estate, degree, or condition they be of, presume nor take upon hand at any time thereafter to use or practise any manner of witchcraft, sorcery, necromancie, nor give themselves forth to have any craft or knowledge thereof thereby to abuse the people, neither that no person nor persons seek any help, response or consultation, at ony such abusers foresaid or users of sorcerie, witchcraft, or necromancie, under the pain and punishment of death to be execute als well against the users and abusers as the seekers of the said help responce or consultation as in the said laws of Almighty God and Acts of Parliament at more length is contained.

There followed a list of the various crimes alleged against the accused. Below are two of the charges levelled against Andrew Man at his 1598 trial in Aberdeen:
ITEM, Elspet Boyne, in Aird, being heavilie diseasit with a furiositie and madnes, thow, be [by] thy devilische witchcraft and sorcerie, curit hir therof [cured her thereof], be saying dyveris of thy orationis [diverse orations] vnto hir, and be applying of thy devilische inchantmentis to hir, in maner forsaid. And this thow can nocht deny.
…
ITEM, Thow affermis thow can tak avay a kowis milk quhen thow pleissis, [you affirm you can take away a cow’s milk when you please] and thow promesed to Alexander Symsoun to do the same.

 

Accused

The most common charges were magical attacks against neighbours following quarrels. Accused witches might be compelled to confess to making a pact with the Devil during the interrogation process, but it was not unusual for confessions to focus solely on the use of harmful magic against neighbours.

When the dittay had been read, the panel affirmed or denied the contents, which was equivalent to entering a plea. The use of the terms ‘guilty’ and ‘not guilty’ became standard by the late seventeenth century, but earlier there was no set wording for this part of the procedure. Accused parties often re-affirmed confessions contained in the dittay, though some did attempt retractions, pleading torture or other manipulations. The trial continued even if the accused admitted all charges.

The next stage of the trial consisted of legal arguments about the relevancy and wording of each items in the dittay. The proloquitor, or defence lawyer, might try to persuade the judge to throw out certain charges; the pursuer made the opposing case. Some Scottish witchcraft trials featured extensive, highly technical debate. See for example the 1622 trial of Margaret Wallace, held centrally. However, many local trials especially included no meaningful defence arguments. The accused commonly could not afford to hire legal representation, and lacked the expertise to defend themselves in the highly technical manner required.

After the court had agreed which items of the dittay should pass to the jury for consideration, jurors were selected and sworn. In a work first published in 1597, John Skene recorded the jurors’ oath as ‘We sall leill suth say, and na suth conceal [tell the actual truth, and conceal no truth], for nathing be may, sa far as we are charged upon this Assise, be God himself, and be our part of Paradise, and as we will answer to God upon the dreadfull day of judgment’. George Mackenzie gave a simpler version in a work first published in 1678: ‘That you shall all the truth tell, and nae truth conceal, in so far as you are to passe upon this present Assize; swa help you God.’ Jurors often knew the accused, or knew of them by reputation. They were expected to draw on this knowledge, meaning that they also served as a species of witness. A juror could be prosectued for ‘wilful error’ if he acquitted the accused despite having personal cause to believe them guilty.

When the jury was in place, the clerk read the dittay to them. Each item of the dittay then had to be evidenced. Neighbours’ testimony was common, as were records of confessions obtained during the interrogation process. During periods of intense witch-hunting, accused witches might give the names of accomplices, which could be relayed as another form of evidence. Sometimes pacts with the Devil were evidenced by the discovery of a Devil’s mark – a blemish or insensitive spot on the body of the accused, supposedly a form of branding by Satan. The mark was located during the interrogation process, through examination and/or pin-pricking by interrogators or professional ‘witch-prickers’.

Juror

Sometimes witness testimony was given orally; sometimes statements were presented in writing. If they appeared in person, witnesses swore to tell the truth, then repeated the testimony already included in the dittay. In most cases, this meant that they told the court about personal experience of bewitchment following a quarrel with the accused, possibly also asserting that the resulting misfortune was not natural. Evidence could again be challenged on legal grounds, but there was no process of cross-examination.

After hearing all of the evidence, the jury retired. They elected a chancellor to speak for them, deliberated, and returned to present their majority verdict. Delivery of the verdict most likely happened orally up until the mid seventeenth century. It generally included some combination of the terms ‘fylit’, ‘culpable’ and ‘convict’ where the accused was found guilty, or ‘clene’, ‘innocent’ and ‘acquit’ for innocence. Less commonly, the jurors might return a verdict of ‘not proven’ on some or all charges; this indicated that the evidence was insufficient for conviction, but did not fully exonerate the accused. The verdict was recorded by the clerk. Sometimes individual jurors’ votes were also recorded, to facilitate prosecution for wilful error.

The presiding judge might impose a sentence immediately, or delay for consideration and consultation. Witchcraft was a capital offence, though sometimes judges did prescribe banishment or other punishments. Commissions for local trials often clarified that convicted witches were to be strangled at the stake and then burned, with their movable goods passing into the possession of the Crown. The case of Murie, Henderson and Rutherford, quoted above, ended with the following sentence:

the said Agnes Murie, Bessie Henderson, and Isabel Rutherford, sail be all three taken away to the place called the Lamlaires bewest the Cruick Miln the place of their execution to-morrow, being the fourth day of this instant month of April, betwixt one and two in the afternoon, and there to be stranglit to the death by the hand of the hangman, and thereafter their bodies to be burnt to ashes for their trespass, and … all their moveable goods and gear to be escheit and inbrought to his Majesty’s use for the causes foresaids.

Sentences of death were traditionally read out by a court official called the dempster (literally ‘doomster’), who might double as the executioner.

For more on the Scottish legal system, see Ian Douglas Willock’s The Origins and Development of the Jury in Scotland, or his earlier thesis. On witchcraft trials, see especially Julian Goodare, ‘Witch Hunting and the Scottish State’, 122-45 in his edited volume The Scottish Witch-Hunt in Context (Manchester, 2002); Brian P. Levack, Witch-Hunting in Scotland: Law, Politics and Religion (Abingdon, 2008), esp. ch. 2; Michael B. Wasser and Louise A. Yeoman’s introduction to their edition ‘The Trial of Geillis Johnstone for Witchcraft, 1614’, Scottish History Society Miscellany xiii (2004), 83-106; Liv Helene Willumsen, Witches of the North: Scotland and Finnmark (Leiden, 2013), ch. 3.

Witness

Scottish witchcraft: select bibliography

Databases

Podcasts

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Bibliographies

  • Julian Goodare et al, ‘Further Reading’, in The Survey of Scottish Witchcraft (University of Edinburgh, 2003)
  • Julian Goodare, ‘Bibliography of Scottish Witchcraft’, in Julian Goodare (ed.), Scottish Witches and Witch-Hunters (Basingstoke, 2013), 234-45
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Primary sources

Secondary sources

  • Julian Goodare, ‘Women and the Witch-Hunt in Scotland, Social History 23:3 (1998), 288-308 
  • Julian Goodare, ‘The Framework for Scottish Witch-Hunting in the 1590s’, The Scottish Historical Review 81:212 (2002), 240-50
  • Julian Goodare (ed.), The Scottish Witch-Hunt in Context (Manchester, 2002)
  • Julian Goodare, Lauren Martin, and Joyce Miller (eds), Witchcraft and Belief in Early Modern Scotland (Basingstoke, 2008)
  • Julian Goodare, ‘Men and the Witch-Hunt in Scotland’, in Alison Rowlands (ed.), Witchcraft and Masculinities in Early Modern Europe (London, 2009)
  • Julian Goodare (ed.), Scottish Witches and Witch-Hunters (Basingstoke, 2013)
  • Julian Goodare, ‘Witchcraft in Scotland’, in Brian P. Levack (ed.), The Oxford Handbook of Witchcraft in Early Modern Europe and Colonial America (Oxford, 2013)
  • Julian Goodare and Martha McGill (eds), The Supernatural in Early Modern Scotland (Manchester, 2020)
  • Lizanne Henderson (ed.), Fantastical Imaginations: The Supernatural in Scottish History and Culture (Edinburgh, 2009)
  • Lizanne Henderson, Witchcraft and Folk Belief in the Age of Enlightenment: Scotland, 1670-1740 (Basingstoke, 2016)
  • Christina Larner, Enemies of God: the Witch-Hunt in Scotland (Edinburgh, 1981)
  • Brian P. Levack, Witch-Hunting in Scotland: Law, Politics and Religion (Abingdon, 2008)
  • S.W. MacDonald, ‘The Devil’s Mark and the Witch-Prickers of Scotland’, Journal of the Royal Society of Medicine 90 (1997), 507-11
  • Stuart Macdonald, The Witches of Fife: Witch-Hunting in a Scottish Shire, 1560-1710 (Edinburgh, 2002)
  • Lauren Martin, ‘Witchcraft and Family: What Can Witchcraft Documents Tell Us About Early Modern Scottish Family Life?’ Scottish Tradition 27 (2002), 7-22
  • Lawrence Normand and Gareth Roberts (eds), Witchcraft in Early Modern Scotland: James’s Demonology and the North Berwick Witches (Exeter, 2000)
  • Liv Helene Willumsen, Witches of the North: Scotland and Finnmark (Leiden, 2013)
  • Jenny Wormald, ‘The Witches, the Devil and the King’, in Terry Brotherstone and David Ditchburn (eds), Freedom and Authority: Scotland, c.1050-c.1650 (Edinburgh, 2000)
  • Louise A. Yeoman, ‘The Devil as Doctor: Witchcraft, Wodrow, and the Wider World’, Scottish Archives 1 (1995), 93-105