Three women pointing
The Three Witches, by Johann Heinrich Füssli
Source: Wikimedia Commons

Exodus 22:18 states that “Thou shalt not suffer a witch to live”,[a]The Hebrew text refers not to a witch but to a diviner, a kasaph, someone able to see into the future. Witch was the preferred translation for the King James Bible, reflecting the reality of witchcraft in the consciousness of the Jacobean state.[1] and until the passage of Henry VIII’s Act of 1542 witchcraft was dealt with by the ecclesiastical courts rather being seen as a secular felony. It is unknown what triggered the perceived need for such legislation, but it undoubtedly suited Henry’s agenda of wresting power from the Catholic Church.[2]

The difficulties of proving the crime of witchcraft in a court of law, which included the lack of eyewitnesses, led to the development of a clarified foundation for the admissibility of circumstantial evidence to secure criminal convictions more generally.

Witchcraft Act 1542


The Witchcraft Act of 1542 was the first in English law to define what was to be considered witchcraft, and to declare it a crime punishable by death.[3] It remained in force for only five years before it was repealed by Henry’s son, King Edward VII, in 1547.[4]

Witchcraft Act 1563


A major trigger for the introduction of the 1563 Act was the Waldegrave ConspiracyThe Waldregrave Conspiracy of 1561 was a supposed plot to kill Queen Elizabeth I and reintroduce Catholicism to England. two years earlier, a supposed plot to kill Queen Elizabeth I by the use of sorcery and reintroduce Catholicism to England.[5] Officially known as the Act agaynst Conjuracons Inchantments and Witchecraftes, it was passed by Queen Elizabeth I’s second Parliament.[4] It was in some respects more merciful towards those found guilty of witchcraft than its predecessor, demanding the death penalty only if harm had been caused – maleficiumMaleficium is an act of sorcery, historically usually performed by a witch, intended to cause harm or injury. ; lesser offences were punishable by a term of imprisonment. The Act provided that anyone who should “use, practise, or exercise any Witchcraft, Enchantment, Charm, or Sorcery, whereby any person shall happen to be killed or destroyed”, was guilty of a felony without benefit of clergy Benefit of clergy was the legally enshrined right of any clergyman facing prosecution for a felony in a royal court to have the case heard instead in an ecclesiastical court. , and was to be put to death.[6]

Scottish Witchcraft Act 1563


Under the Scottish Witchcraft Act 1563 both the practice of witchcraft and consulting with witches became capital offences in Scotland.[7] This Act stayed on Scottish statute books until its repeal by the post-union Witchcraft Act 1735.[8]

The wording of the Act is perhaps surprisingly sceptical, speaking as it does of “the heavy and abominable superstition used by divers of the lieges of this Realm … and credence given thereto in time bygone … and for avoiding and away putting of all such vain superstition in times to come.” The Act was, in other words, a general legislative instrument against superstition, and did not result in any great increase in prosecutions for witchcraft.[9]

Witchcraft Act 1604


In 1604, the year following James’ accession to the English throne, the Elizabethan Act of 1563 was broadened to bring the penalty of death without benefit of clergy to anyone who invoked evil spirits or communed with familiar spirits. The Act’s full title was An Act against Conjuration, Witchcraft and dealing with evil and wicked spirits, (1 Ja. I c. 12).[10] It was this statute that was enforced by Matthew HopkinsMatthew Hopkins (c. 1620 – 12 August 1647) was an English witch-hunter who claimed to hold the office of Witchfinder General, although that title was never bestowed by Parliament. , the self-styled Witch-Finder General.

By making witchcraft a felony, the Acts of Elizabeth and James removed the accused from the jurisdiction of the ecclesiastical courts, as Henry VIII had done with his Act of 1542. Those accused of witchcraft were thus subject to ordinary criminal procedure. Burning at the stake was retained only for cases of witchcraft that were also petty treason; most of those convicted were instead hanged. Any witch who had committed a minor witchcraft offence (punishable by one year in prison) and was accused and found guilty a second time received the death penalty.

Scottish Witchcraft Act 1649


The Scottish Witchcraft Act 1649 extended the scope of the 1563 Act to include the new crime of consulting with “Devils and familiar spirits”.[11]

Witchcraft Act 1735


Main article: Witchcraft Act 1735 The Witchcraft Act 1735 (9 Geo. II c. 5), sometimes referred to as the Witchcraft Act 1736 owing to dating complexities, repealed the earlier statutes concerning witchcraft throughout Great Britain including Scotland, which had its own legal system.

The Witchcraft Act of 1735 marked a complete reversal in attitudes towards witchcraft, which by that time was considered to be an impossible crime by many influential figures. Penalties for the practice of witchcraft were replaced by those for the pretence of witchcraft. The Act also outlawed fortune telling, but as it necessitated a trial by jury it was not commonly used for that purpose.[7] Fortune tellers were instead usually tried summarily as vagrants by magistrates, and subject to fines and imprisonment.[12] The Act applied to the whole of Great Britain, repealing both the 1563 Scottish Act and the 1604 English Act.[7]

The Witchcraft Act of 1735 remained in force in Britain well into the 20th century, until its eventual repeal with the enactment of the Fraudulent Mediums Act of 1951. That Act was itself repealed on 26 May 2008[13] by new Consumer Protection Regulations following an EU directive targeting unfair sales and marketing practices.[14]

Legacy in English law


Witchcraft, although considered to be a serious crime, was also one that was very difficult to prove. There were typically no witnesses, and in England it was illegal to use torture to extract a confession. The courts therefore often had to rely on circumstantial evidence, such as the presence of Devil’s marks. English law differed from that in Scotland and on the Continent, in that the accused could be convicted on circumstantial evidence alone, whereas in Scotland they had to confess to the crime, which often necessitated the use of torture.[15]

Although witchcraft trials were not particularly common in England, they did focus legal minds on the problems of circumstantial evidence in general, which led to the development of a robust foundation for its admission.[15]

Citations



Bibliography


Darr, O. A. (2013). Marks of an Absolute Witch: Evidentiary Dilemmas in Early Modern England. Ashgate Publishing.
Devine, M. (2016). Treasonous Catholic Magic and the 1563 Witchcraft Legislation: The English State’s Response to Catholic Conjuring in the Early Years of Elizabeth I’s Reign. In Supernatural and Secular Power in Early Modern England. Routledge.
Eschner, K. (2017). England’s Witch Trials Were Legal. Smithsonian Magazine. Retrieved from https://www.smithsonianmag.com/smart-news/englands-witch-trials-were-lawful-180964514/
Gaskill, M. (2001). Hellish Nell: the last of Britain’s witches. Fourth Estate.
Gaskill, M. (2010). Witchcraft: A Very Short Introduction (ebook). Oxford University Press.
Gibson, M. (2006). Witchcraft in the Courts. In Witchcraft And Society in England And America, 1550–1750 (pp. 1–9). Continuum International Publishing Group.
Harmes, M., & Bladen, V. (2016). Supernatural and Secular Power in Early Modern England. Routledge.
Larner, C. (1981). Enemies of God: the witch-hunt in Scotland. Chatto and Windus.
Rohrer, F., & Bell, S. (2008, April 18). There May Be Trouble Ahead. Retrieved from http://news.bbc.co.uk/1/hi/magazine/7354089.stm
UK Government. The Consumer Protection from Unfair Trading Regulations 2008 (2008). Retrieved from http://www.legislation.gov.uk/uksi/2008/1277/contents/made
Young, J. R. (2007). The Covenanters and the Scottish Parliament, 1639–51: the rule of the godly and the second Scottish Reformation. In E. Boran & C. Gribben (Eds.), Enforcing Reformation in Ireland and Scotland, 1550-1700. (pp. 149–150). Ashgate Pub.

Notes

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a. The Hebrew text refers not to a witch but to a diviner, a kasaph, someone able to see into the future. Witch was the preferred translation for the King James Bible, reflecting the reality of witchcraft in the consciousness of the Jacobean state.[1]