High Stakes: The Impact of the Witch Trials on Our Global Legal System Today

In the UK there were two periods of intensive ‘witch hunting’ from 1598-1607 and 1644-1647, led by Matthew Hopkins, the ‘witch finder general’, who some say still haunts the Old Bailey (Witch Law and Witch Hunting, New Law Journal 143 NLJ 1543 29 October 1993). It was not a phenomena isolated to the UK either; there were high profile witch trials in the US (most notable Salem) and in parts of Europe, including France and Germany (Rendering Justice in Witch Trials: the Case of the val de Lièpvre, M Simon, 11 November 2011 Fr Hist (2011) 25 (4): 453-472). We now know that the hysteria driving the witch trials is likely to have been caused by Ergot poison in the grain supplies (Witchcraft or Mycotoxin? The Salem Witch Trials, A Woolf, A Journal of Toxicology: Clinical toxicology, 2000, Vol. 38(4), pp. 457-60), but the narrative of witches and magic remains prevalent. The witch trials are an area of history which spark the public imagination, inspiring art, plays, music, and TV shows. There are still many who believe they practise magic, too. Recently, witchcraft has even played a role in politics, with a coven of witches in the US seeking to cast a spell on Donald Trump, who were met with great public support. However, these witch trials have had a more serious impact too, helping form the global legal system as we know it today.

One of the areas that clearly demonstrate the way the witch trials have impacted UK law is the legislation it inspired. Between 1542 and 1736, several Acts of Parliament - the Witchcraft Acts, were in force. Most important was the Statue against Witchcraft (1 James I c 12), which included two offences: invocation of evil spirits or use of witchcraft to kill or injure another person (which carried the death penalty), and the attempted use of witchcraft to kill, injure or damage property (which carried a maximum sentence of one year in prison) (Witch Law and Witch Hunting, New Law Journal 143 NLJ 1543 29 October 1993). Later the Witchcraft Act 1735 followed, making it illegal to accuse someone of witchcraft. Despite this, the Church Courts heard witchcraft cases as late as 1542, and witch trials were still popular with the public much later than this. In 1751 Thomas Colley was sentenced to death for drowning a ‘witch’, and had to be escorted to the gallows by over 100 cavalrymen to prevent his rescue (Book Reviews by Michael McMullan (2000) 164 JPN 882 Review of Witch Craft and Witch Trials by Gregory Durston). These Acts are great examples of where legislation in the UK has been quickly formed to react to prevalent issues and trends in public concern. While they have now been repealed, parts remain in the Fraudulent Mediums Act 1951.

Perhaps a more indirect way the witch trials have affected the legal systems of the world is the presumption of ‘innocent until proven guilty’. Witches were assumed guilty before their ‘trials’ began, with this assumption of guilt being a common feature even in other types of trials at the time. While many elements of criminal trials have changed since the witch trials, this reversal in attitude to the accused is most stark. The witch trials provide a clear and memorable example of what happens when this guilty narrative can run rampant. For example, the ‘preliminary examinations’ for accused witches are more comparable with a grand jury hearing than a pre-trial deposition (The Evidence of Things Unseen: The Legal World of the Salem Witch Trials, K O'Kelly, Experience, Vol. 16, Issue 4 (Summer 2006), pp. 16-35). This assumption of guilt had more unjust consequences than the type of pre-trial questioning used. The principle of ‘Peine forte en dure’ stated that if a defendant refused to stand trial then they must suffer punishments to determine their guilt. Because of the assumption of guilt, laughable evidence was allowed, such as the acts of ‘spectres’ during the interviews themselves. Richard Francis in ‘Judge Sewell’s apology’ argued that the equivalent today would be having a preliminary hearing in which the defendant commits murder, and this being the basis of the trial. These startling negative impacts of assuming guilt outside of a fair trial are something that those participating in ‘media trials’, such as the controversial case of Amanda Knox, should consider.

It is not just murder that is subject to trials by media. The witch trials have been used to inform the narrative around child sex abusers. The public often speak about the media’s focus on paedophilia as a witch hunt. While it is a crime which is extremely abhorrent and should be treated as such, it remains shocking that in 2013 an innocent man was burned alive after being accused. Media representation of the issue is well known to impact public policy and police practice in these cases (The Legal System and Child Sex Abuse - Ross Cheit's The Witch-Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children, Bowman, Law & Social Inquiry 41(1) 1747-4469) 2016). However, one of the most positive implications the witch trials have had on the way our courts work is allowing the testimony of children in court.

In summary, one can clearly see that the witch trials have had numerous impacts on the legal system as we recognise it today. It is not an era of history one immediately thinks of as being particularly relevant to how solicitors and barristers practise, but it is undoubtable they have changed the way courts operate. Crucially, the danger of creating witch trial narratives shows that legal reform to protect those who suffer wrongly from ‘trial by media’ may well be needed.