Crimen Exceptum

J Durston Gregory

Description

As the author notes, 'The early-modern European witch-hunts were neither orchestrated massacres nor spontaneous pogroms. Alleged witches were not rounded up at night and summarily killed extra-judicially or lynched as the victims of mob justice. They were executed after trial and conviction with full legal process'.

Sujets

• Inglaterra
• Legal history
• Witchcraft
• England

Informations

• Publié par: Waterside Press
• Date de parution: 05 juin 2019
• Nombre de lectures: 0
• EAN13: 9781910979754
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

Crimen Exceptum
The English Witch Prosecution in Context
Gregory J Durston
Copyright and publication details
Crimen Exceptum: The English Witch Prosecution in Context
Gregory J Durston
ISBN 978-1-909976-65-8 (Paperback)
ISBN 978-1-910979-75-4 (Epub ebook)
ISBN 978-1-910979-76-1 (Adobe ebook)
Copyright © 2019 This work is the copyright of Gregory J Durston. All intellectual property and associated rights are hereby asserted and reserved by the author in full compliance with UK, European and international law. No part of this book may be copied, reproduced, stored in any retrieval system or transmitted in any form or by any means, including in hard copy or via the internet, without the prior written permission of the publishers to whom all such rights have been assigned worldwide.
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Cataloguing-In-Publication Data A catalogue record for this book can be obtained from the British Library.
Ebook Crimen Exceptum: The English Witch Prosecution in Context is available as an ebook and also to subscribers of Ebrary, Ebsco, Myilibrary and Dawsonera.
Published 2019 by
Waterside Press Ltd.
Sherfield Gables, Sherfield on Loddon,
Hook, Hampshire, RG27 0JG.
Online catalogue WatersidePress.co.uk
Table of Contents
About the author vii
Acknowledgements viii
Frequently Used Acronyms ix Historical Background 11
Preliminary Matters 11
Sources of Information 12
A Legal Phenomenon 14
Criminal Procedure 18
The Medieval Background 19
From Sorcery to Witchcraft 23
Cunning Folk and Benign Magic 26
The Identification of Black Witches 29
From Credulity to Scepticism 34
Counterfeit and Fraud 37
Extent of Witch Persecution 39
The Wider British Isles 44
Meta-Narratives 48
Female Involvement 52
Urban Witches 53 Candidates for Witch-hood 55
Introduction 55
Gender 59
Familial Connections 62
Previous Allegations 63
Age and Marital Status 64
Character and Social Status 66 A Witch’s Career 69
Introduction 69
Familiars 73
Alternative Forms of Enchantment 77 Living With the Witch 79
Introduction 79
The Dangers of Prosecution 81
Appeasing the Witch 82
Passive Defence 83
Active Defence 85
Scratching 85
Use of Ecclesiastical Courts 87
Vagabond Actions 89 The Witchcraft Statutes 91
Introduction 91
The 1542 Act 92
The 1563 Act 95
Elizabethan Prosecutions: A County Profile 100
The 1604 Statute 101
Jacobean Prosecutions: A County Profile 108 Entering the Criminal Justice System 111
Introduction 111
Triggering Event 112
Supporting Allegations 115
Taking Action 116
Pre-Examination Questioning 118
Justices of the Peace and the Witch-Hunting Process 118
The JPs’ Examination 121
The Role of Confessions 122
Deep Interrogation 126
Growing Caution About Confessions 130
The Decision to Prosecute 131
Bail 131
Ancillary Orders 132
Choice of Forum 133
Pre-Trial Detention 135 Specialist Tests for Witchcraft 137
Introduction 137
Reciting Scripture 138
Scratching 139
The Witch’s Teat 139
Pricking and the Witch’s Mark 142
Natural Blemishes 145
Swimming 146 Trial and Punishment 153
Introduction 153
The Grand Jury Hearing 153
Arraignment 155
The Trial 156
The Evidence Adduced at Trial 157
The Witnesses 158
Expert Evidence 161
Conviction and Execution Rates for Witchcraft 164
Post-Conviction Reprieves 165
Pregnancy 168
Execution of Witches 169 Late-Jacobean and Caroline Prosecutions 173
Introduction 173
A Turning Point 174
Caroline Prosecutions 176 The Civil War and Interregnum 181
Introduction 181
Matthew Hopkins and John Stearne 184
Subsequent Campaigns 188
Newcastle and Northumberland 188
Kent 190
Other Regions 191
Late-Interregnum 191 From the Restoration to Abolition 193
Introduction 193
The Final Fifty Years 197
The 1700s 199
Final Conviction 201
The Pamphlet War 201
Final Prosecution 202
Last Formal Allegations 203
Repeal and the 1736 Act 203
Survival of Popular Witch Beliefs 204
Post-Repeal Incidents 205 Conclusion 209
Select Bibliography 211
Index 229
About the author
Gregory J Durston is a barrister-at-law who has taught in Law Schools in England and Japan. He was for many years Reader in Law at Kingston University, Surrey and is currently an adjunct professor at Southern Cross University School of Law and Justice, New South Wales, Australia. He is the author of Fields, Fens and Felonies: Crime and Justice in Eighteenth-Century East Anglia (Waterside Press, 2016) and Whores and Highwaymen: Crime and Justice in the Eighteenth-Century Metropolis (Waterside Press, 2012).
Acknowledgements
I would like to acknowledge the invaluable assistance provided by the staff at Kingston University Library, Southern Cross University Library, and the British Library, as well as those at the county record offices cited. Additionally, I am extremely grateful for assistance from Rhoda Koenig and Judge Nicholas Philpot. Readers should note that abbreviated titles are sometimes used in footnotes; the full versions of these sources can be found on first use in the text and/or in the Select Bibliography .
Gregory Durston
London
Easter, 2019
Frequently Used Acronyms
ERO Essex Record Office
NRO Norfolk Record Office
OBSP Old Bailey Sessions Papers
TNA The National Archives
WYRO West Yorkshire Record Office
Chapter 1
Historical Background
Preliminary Matters
T his book focuses on English prosecutions for witchcraft during the almost 200 years in which it was a secular felony. As such, it has a predominantly legal focus, covering all stages of the litigation process, from formal accusation, through trial and conviction, to execution. However, to make sense of the law and practice governing such prosecutions, it is also necessary to consider the context in which they occurred, and the years before and after proscription.
A huge amount of research on early-modern witchcraft, in all its aspects, has been published in the past three decades. Indeed, several scholars have argued that historians of the period are excessively pre-occupied with the topic, which has received attention that is entirely out of proportion to its significance. 1 Nevertheless, a focus on the legal context of English witch trials can provide invaluable insights into the wider criminal justice system at this time, and raise more general questions about the law, some of which are still germane today. It also opens a window on day-to-day life in early-modern England, and can provide a vehicle for exploring a large range of issues in the period, from the status of women to the professionalisation of the legal process.
Furthermore, the issues raised by witchcraft are not purely of historical interest. Self-described witches still generate law-and-order problems in various parts of the world, with murder (especially of children and albinos) sometimes being committed to secure body parts, with a view to using them for magical charms and rituals. Much more commonly, the banishment and killing of those suspected to be witches, particularly in countries such as India, Nepal, Papua New Guinea, the Congo, Angola, Nigeria, South Africa, Tanzania, and Indonesia, claims or destroys lives. These practices have sometimes become a challenge for developed countries because of their presence amongst migrant communities. 2 For example, in 2001 the mutilated torso of a ritually “sacrificed” West African child was found floating in the River Thames in London. 3
Sources of Information
English court records are limited for much of the period when witchcraft was proscribed. Only the Home Circuit’s gaol calendars for assizes (the highest jury court) have survived for the Elizabethan era, although there were six circuits, while those for Quarter Sessions (the lower jury court) are even thinner. Records for the seventeenth and eighteenth-centuries are better, but far from perfect; for example, on the Western Circuit most records are missing before 1670, apart from some bail books from about 1654. Worst of all, those for the important Midland Circuit are not available until the early-nineteenth century.
Furthermore, even when records produced by the English common law criminal justice system survive in their entirety, they are fairly limited, being largely confined to allegation, plea, verdict and sentence. There is almost no official evidence of what actually went on during the trial except, very occasionally, the sworn written deposition of a witness, taken before an examining justice of the peace (JP), appended to other papers in the case (and even this is not guaranteed to have been repeated in court). 4 In this the system differs from many of its continental counterparts, which adhered to Roman law.
For example, the records for witch trials in sixteenth century Rothenburg include extensive Urgichtenbücher or interrogation books. Suspects were held in the city gaol, where two members of the council questioned them, sometimes with the use of torture, about their alleged crimes. Near-verbatim records were made of these interrogations as they took place: these were then read and discussed by the rest of the council. When a trial was over, these records were bound into the interrogation books, along with all other documents pertaining to the case, including witness statements, the opinions of legal, theological, or medical experts, and any letters written to or by the council about the case. In some cases these run to hundreds of pages. This produces a rich source, one that is unmatched in England. 5
However, supplementing