This blog post comes from a conversation I had with someone in a pub. I can’t remember how the conversation had come around to witches – it was somewhere between one of them having a go at me for not owning a telly, but before when they had a go at me for using too many long words.
The thing that stuck with me was the outrage I got when I mentioned that the English didn’t torture witches. I was offered the famous quote that Medieval people were nasty, brutish and short, and that their lives were shaped correspondingly.
Because of this, I’d like to make it clear that this article isn’t meant to account for every abusive blow struck in the cellar of every parish goal. It isn’t meant to say that no abuse took place, or that the conditions of Early Modern confinement were in any way pleasant.
What I think might be profitable is to look at is why the English judicial system never authorised the mass torture of witches, and why European systems did.
Torture In The English Witch Trial
That torture sometimes occurred during the English witch trial is beyond question. In 1579, the Privy Council sent Sir Henry Nevell to Windsor. He was there to investigate a group of witches who had allegedly made a wax image of the Queen Elizabeth. Torture would have been licit in a case of that nature anyway – the involvement of the Queen, and a possible attempt to either influence or kill her would have made it an investigation of treason.
That the writer of the pamphlet A Rehearsall Both Straung and True doesn’t mention torture could be ignorance, fear of censorship, or desire to preserve the narrative of righteous Justices verses Satanic witches. It would also be wrong not to entertain the possibility that the defendant – Elizabeth Style – being disfigured by Gaol Fever, not judicial violence. Even so, the closing lines of the pamphlet contain a chilling hint of something:
“Shortly after she had made the said confession the other witches were apprehended and were brought to the said jail, the said Mother Devell did so bewitch her and others (as she confessed to the jailer) with her Enchantments that the use of all her limbs and sense were taken quite from her, and her toes did rot off her feet, and she was laid upon a barrow as a most ugly creature to behold, and so brought before the judges at such time as she was arraigned.”
It is also fair to say that some features of the English witch trial could easily be considered torture through the back door (although not in the same sense as the unfortunate Edward II).
Witches were shaved to find witches marks – the spots where their familiars suckled – while others were ‘scratched’ to end their magical powers. In the 1612 pamphlet, The Northamptonshire Witches the Justices decided to ‘float’ witches by throwing them in the river. All who floated were condemned.
Witch Trials on the Continent
Likewise, defendants in Continental witch trials were certainly tortured. In 1467, Fransa Bovin was arrested in Sion, the capital of Valaise. Having withstood a week of torture, she arrived at a general inquest – where she was assigned a defender, and arraigned sixty-seven defence witnesses. Unfortunately, the strong willed Fransa was accused again by two of her fellow prisoners, suffered through two more trials – and two more weeks of torture – and was finally released for ‘lack of infamy’… and conflicting witness statements.
The necessity of torture for prisoners accused of witchcraft came from the revival of Roman Law. By the mid-11th century more and more documents had been discovered containing the codex of laws set by the Roman Emperor Justinian, invigorating jurists such as Pepo and Irnerius, whose students brought the ‘new law’ into practical use, creating European Cannon Law.
By the 1230s, these theories would come into the civil sphere. Frederick II, grandson to Frederick Barbarossa, had travelled to Rome to seek Imperial coronation, and founded the University of Naples for the express purpose of supplying lawyers trained in the new code.
After a period of disastrous stewardship by his son Henry, Frederick introduced the burning of Heretics, writing, “Heretics try to tear the seamless robe of our God… they are the most evil angels… if they should be unwilling to relinquish the insidious darkness of the Devil and to recognise the God of Light, but they persist in the constancy of conceived error, we order by the promulgation of our present law that [these heretics] should be condemned to suffer the death for which they strive. Committed to the judgement of the flames, they should be burned alive in the sight of the people… no one should presume to intervene with us in behalf of such persons… we shall turn against him the stings of our indignation.”
Frederick also offered all their goods and chattals to the state and demanded exile for any who sheltered them.
As ruthless as his code might seem, Frederick shunned the idea of trial by ordeal. His code of laws demanded evidence: there should be two witnesses to prove that a defendant was guilty, or a full confession. Cases should not be investigated, but should be decided “with plan reasons” as to why a case should be convicted.
By the 14th century, justices in Europe were bound to a complex hierarchy of proofs: Bartolus of Sassoferrato gave a hierarchy of three proofs that could be combined variously to provide convictions: circumstantial evidence could bring a case, but not convict; imperfect evidence, such as the confession of a single witness would also not convict; finally, full or perfect proof could convict – that being the statements of two witnesses or a full confession.
In less serious cases, imperfect evidence would be sufficient, but in cases such as witchcraft or murder, only ‘full proof’ would be enough.
With the invisible nature of the witch’s powers, and the ban on investigating cases, there began the need to torture in order to gain a confession. Perhaps the most straightforward statement on the matter can be found in Scotland. Here, a committee examining witches was told that, “the personis wilfull or refusand to declair the veritie to putt to tortour, or sic uthir punishement ot use and cause be usit as may move thame to utter the treuth.”
Generations of writing from Dominican Inquisitors and witchcraft-hating jurists made European justices deaf to pleas of innocence: even before Kramer’s Malleus Maleficarum, witch hunters had long written that the Devil could ‘stop up’ the mouth of the witch, and give her the strength to profess her innocence despite torture.
Even some British writers were in favour of a Continental system. William Perkins, in his book The Damned Art wrote, “…if they both can avouch upon their owne proper knowledge, that such a man or woman suspected, have put in practise any other actions of Witchcraft… it prooveth sufficiently that he or she is a Witch. But some may say, if these be the onely strong proofes for the conviction of a Sorcerer, it will be then impossible to put any one to death, because the league with Satan is closely made, and the practises of Sorcery are also very secret, and hardly can a man be brought, which upon his owne knowledge, can averred such things.”
The Examination of Witches
One of the most significant moves for British witches was the reclassification of Witchcraft during the turbulent years following the Reformation.
The 1542 Act Against Conjuration, Sorcery, Witchcraft and Enchantments had reclassified witchcraft as a felony, reserving burning for treason, coin counterfeiting and ‘petty treason’ (killing or doing violence against your husband). While Edward VI repealed Henry’s laws fairly soon after his death, the idea of Witchcraft as a felony stuck.
At the same time, a new form of trial had been rising. Since the time of Edward III, the elite had found jury trials problematic: juries of ‘peers’ were not necessarily inclined to prosecute each other, particularly in cases of price fixing amongst merchants or tradesmen. This gave rise to the process of Examination, where defendants would be interviewed by two or more Justices and the case would be decided without recourse to anything else.
By height of the English witch trial, Elizabeth had passed acts establishing the procedure of Examination as the preferred method in almost every new court. Some witches would have been tried by jury – with the jury in the case of London Witch Elizabeth Sawyer throwing themselves on the mercy of the judge when they could not make a decision – but it is probably no coincidence that the highest volume of witchcraft convictions came at the time when convictions required the least oversight and evidence.
The attitudes of the Justices can be seen in Richard Bernard’s Guide to Grand Jury Men: “If none of these will work to bring them to confesse, then such as haue authority to examine, should begin to vse sharp speeches, and to threaten with imprisonment and death… And if the presumptions be strong, then if the Law will permit (as it doth in other countries in this case) to vse torture, or to make a shew thereof at least, to make them confesse as many haue done hereupon in other Countries.”
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This doesn’t seem to over though the more dramatic and brutal trials during the Enghlish civil war. Indeed, the pattern of central governments restricting witch trials is fairly common even on the continent. As I understand it, with notable exceptions, the more brutal aspects of WItchcrazes occurred when central government broke down. There are certainly examples from the period by people like John Gaulle etc detailing torture of suspected witches in the 1642-1647 crazes. Admittedly it was more stress positions and sleep deprivation but they seem documented. I think James Sharpe details a number of these kinds of examples of torture by kangaroo courts etc during this era.
Hi Cthol, I do like James Shape’s work. Malcolm Gaskill looks at this sort of thing as well.
I left the civil war era stuff out because I think it’s slightly different to what I’m looking at in this article. My area of study is the witch trial as a part of culture and everyday life, although I’m currently working on the language of cursing in Civil War era propaganda. I’ll probably cover the civil war era trials separately at some point, but for me, it’s a bubble of culture created by the unique pressures citizens were under: witchcraft cases had been on the decline, as had possession cases, and yet suddenly as government effectively broke down (and Assize judges abandoned their circuits for fear of plague) we see a resurgence of both, especially at the hands of opportunists like Hopkins and Stearne. The kangaroo courts, the sleep deprivation and the use of continental-style torture were extra-judicial, and when the Assize judges resumed their work in 1647, it seems to have died away (at least in the South East of England, the North is a little different) fairly quickly. In one town in the South East of England they even burned a witch, but it wasn’t legal, it was just that in towns during civil war, the usual rules of law break down and nobody could stop them (I’ve got the name in my notes somewhere, I’ll write about it when I find it).
I’m definitely going to go into the civil war era trials at some point though, precisely because of the departure they represent from the usual way the English dealt with witches.
Fair enough, I can certainly see legitimacy in treating the Civil war era trials as a different distinct issue. Certainly you are quite right under normal English law and practice, especially in the Elizabethan era. Though I do think its an over statement to say torture was never used in witch trials given that scenario; perhaps no official and legal use of torture would be more appropriate? At least I can see why people would raise an eyebrow given how commonly known the Mathew Hopkins panic is as a layman’s view of the witch trials.
In my research I would certainly agree that once the Assizes were back in swing that these practices died off very rapidly. Indeed they seem to be often treated with well deserved contempt by the assizes I always enjoyed Sir John Powel’s wonderfully sardonic commentary in the trial of Jane Wenham in the early 1700s which illustrates it so beautifully.
I look forward to seeing what you do when you look at that later era with all its unique propagandist hysteria and high drama.
Certainly, and as I say in the article, it would be wrong to account for every extra-legal use of violence or intimidation as being obliterated by simply having legal provisions to the contrary (I think it’s the St Osyth case where the magistrate certainly threatened burning, if not torture).
My big thing is this: the process of Examination as enshrined in law at the time made non violent solutions the path of least resistance in many cases, simply because they removed so many checks and balances from judicial decision making that procuring a confessing by violence was unnecessary (not to mention the influence of so-called ‘physical evidence’ like witch marks).
This article does rather expose my bias though: I’m much more comfortable in the reigns of James and Elizabeth.
Anyhow, I’m definitely going to get stuck into the civil war era pamphlet press: as you say, it’s beautifully apocalyptic, portentous and superstitious.