The Lawyer, the Witch, and the Witness: Witchcraft and the Law of Evidence

Abstract

In the sixteenth century, a new crime arrived on the scene of the secular courts: witchcraft. Over the following two hundred years, tens of thousands of individuals across Europe and its colonies would be tried and convicted of this offense. In England alone, hundreds of men and women were executed for covenanting with the Devil or using harmful magic against their neighbors.

Almost universally, this “age of credulity and injustice” has provoked a kind of retrospective horror that “rational, highly educated men ‘could have been so bigoted as to put people to death for . . . patently impossible acts’”. In popular thought, convictions for witchcraft must have been miscarriages of justice: because witchcraft does not exist, witchcraft prosecutions are, almost by definition, sham trials. Thus, at best, the early modern witch trials are seen as being marred by a sort of hysteria that overwhelmed the normal safeguards of the judicial process. At worst, they are viewed as deliberate persecutions, driven by sexism, class conflict, or personal animosity.

This article challenges those views. Relying on firsthand accounts of early modern trials, as well as contemporary and near-contemporary treatises and commentaries, this article demonstrates that, at least in their evidentiary aspects, the English witch trials were largely unremarkable. Far from evincing “the abandonment of normal legal procedures”, witch trials in England generally followed the established rules of criminal procedure. While many men and women were convicted on evidence that they had nursed demons or failed to pray properly, these and other apparently flimsy proofs were not arbitrary, nor was their admission at trial a legal anomaly. English witches were not presumed guilty, or tortured into confession, or summarily convicted on the basis of unsubstantiated allegations. Instead, they were executed after trial and conviction with full legal process. In other words, the central claim of this article is that, whatever criticisms we might level with the benefit of hindsight, the English witch trials simply were not a miscarriage of justice. Rather, they were, by and large, a realization of justice as it existed at the time.

Keywords: witchcraft, witch trials, early modern, legal history, witch hunt, crimen exceptum