‘The whelk ye freely confessed’ : The Witch Trials in Crook of Devon 4

The judicial system in Scotland was based on accusations made directly by someone who had experienced wrongdoings. Modifications to this system made it possible for a public prosecutor to initiate legal proceedings, but it was ultimately up to the Assize to find the defendant guilty or innocent. To find a defendant guilty, the Assize only needed to get a majority, even in cases where capital punishment was the statutory norm. An Assize could choose to heed or to ignore the directions of the judge and in this case, they may well have done.

We don’t know whether the accused had any legal counsel. Although the right to a defence counsel seemed to have been acknowledged as early as 1587, this did not apply for the Privy Council courts. Certainly the proceedings don’t mention anything of the sort. Those who had the tenacity and the means to appeal could end up in the High Court in Edinburgh and would have had a larger chance to be acquitted. None of the accused in the Crook of Devon trials seems to have appealed.

As witchcraft was considered to be a religious crime, execution was by means of strangling and burning, a method used to execute heretics. ‘Ordinary’ criminals were hanged. The body was burnt to prevent the resurrection of the witch through demonic forces but also to make an afterlife impossible.
Attendance at the executions was compulsory for the whole community. It is not clear whether direct family members of the convicted witches were forced to be there. More often than not the day of execution would be a day of fasting and abstinence, and sermons would be preached on the dangers of the devil, witchcraft and general immorality. In some cases the witch was burnt ‘quick’, that is alive, although in Crook of Devon all the convicted witched were strangled (‘wierrit’) before being burnt. To burn a body requires a lot of fuel; peat by itself would probably not have been hot enough so the community had to provide coal and tar.

In the first three trials, nine accused were found guilty. Nine times the death penalty was carried out. During the spring and the summer of 1662, the community must have felt great anxiety. Any neighbour, any member of the family could be a witch or could be accused of being one. Was this a real witch panic, driven by fear; was it a witch hunt, driven by a small group of zealots or was it a combination of the two? It is impossible to say whether the hunt for witches was supported by the community; or to say how much of a role they played in initiating the trials.

Something strange happened during the fourth trial, in the case of the last defendant Christian Grieve. While the evidence against her, including her confession, was every bit as damning as the evidence against her co-defendant Janet Brugh, who was found guilty and executed, the Assize came to a different verdict for Christian. Unanimously they declared ‘that they will not convict her in no point of witchcraft nor clenze her of no point’ (Proceedings, 1888). Christian was freed after the trial, in July 1662. Her freedom was short-lived. In October 1662 the court met for the fifth time with exactly the same persons and the same Assize. No new evidence or information was presented, but this time Christian was convicted. She died on the 13th of October and as far as we know, she was the last one to be executed in the infamous witchcraft trials in Crook of Devon.

Ten women and one man from Fossoway were tried, found guilty and executed. Perhaps the question that also needs to be answered is not how this could happen, but why did it stop? During the interrogations of the thirteen accused around twenty others were implicated: apart from the names of those who would be tried later in the year, eight persons were mentioned in the first trial. Those eight: Gilles Hutton (Robert Wilson’s spouse), Margaret Duncan, Agnes Allene, Agnes Sharp, Janet Hird, Isabel Condie, Margaret Young and Margaret McNeish were just as implicated in witchcraft as Robert Wilson, Agnes Pittendreich and the others; yet these eight avoided being imprisoned and interrogated. And although there were around twenty prospective cases left, the trials stopped in October 1662.

In Scotland the witch-hunts decreased dramatically after 1662, although there were brief, local panics. There are also some instances of groups of vigilantes murdering suspect witches who were acquitted. In 1727 the last official execution took place in Dornoch, where Janet Horne was burned. The very last recorded official execution in Europe was in 1782 in Switzerland. The last recorded witch trial was in 1792 in Poland. In 1736 the Witchcraft Act in England was repealed in by the Westminster Government. Because of the Union, this automatically repealed the Scottish Witchcraft Act.

The reasons for the decline of witchcraft trials are several. Sceptical voices were around for as long as there had been witchcraft trials, although there have been remarkably few dissenting voices in Scotland. Here, the decline in trials, convictions and executions took place in a framework where most people firmly believed in the reality of witchcraft.

Scepticism could either focus on the judicial process or on the nature and existence of witchcraft. Over the 17th and 18th century, discoveries and advances in natural science started to provide alternative explanations to hitherto mysterious occurrences, and knowledge of this was slowly but surely absorbed by the cultural elite. But the belief in witchcraft proved remarkably stubborn; the furthest the critics would go is to deny some of the aspects of witchcraft, such as metamorphosis, or making a pact with the devil.

Johan Wier (Weyer), a Dutchman who worked as a physician at a German court, published a treaty ‘On the Deceptions of Demons’ as early as 1563. It became popular very quickly and was translated from the Latin into several languages. It would have been known in Scotland. Although Wier accepted the existence of demons and the devil, he denied that the devil needed human assistants to carry out malefice. The devil himself could do nothing that God did not permit and therefore humans could do nothing that was out of the order of nature. Wier also used his medical knowledge to reason that many of the activities witches were accused of were impossible.

In Scotland, Mackenzie was one of the leading sceptics. Sir George Mackenzie (1636- 1691) was an experienced judge and although he too firmly believed in the existence of witchcraft, he denied that it was possible for humans to make a pact with the devil or to change shape. His greatest contribution to the decline of trials was his insistence on due process. He believed that a great number of innocent people had been convicted for witchcraft on insufficient proof and argued that practices such as torture, sleep deprivation and pricking did not produce the conclusive proof needed to convict a person of witchcraft.

In the second half of the 17th century more restrictions on how to get evidence and how to conduct witch trials came into place. In April 1662, so at the same time as the start of the Crook of Devon trials, the Privy Council reiterated its proclamation that confessions should be obtained without the use of pricking, sleep deprivation or other torture. This proclamation does not seem to have had much effect in Crook of Devon. Also, many commissions granted in 1662 were only granted when a legal professional appointed by the central authorities (Colville in this case) was presiding over the trial.
None of this provides any definitive answer as to why the hunt in Crook of Devon stopped in October 1662. There were enough other potential witches; delated by the other, convicted witches. Perhaps the Privy Council did not grant any more commissions in view of the changing opinion about witch trials. Applications for commissions have hardly ever survived, so there is no way of knowing this. The Fossoway Kirk Session records for this particular time have also disappeared, so it is very difficult to find out what really happened.

The hunt could have burned itself out, as happened sometimes on the Continent. In some villages in what is now Germany, one in three people were implicated in one or another way in witch-hunts. Eventually there were no possible suspects left; people came to their senses and the hunt fizzled out. Something akin could have happened in Crook of Devon. Perhaps the financial burden of the hunt became too heavy for the community; perhaps there were protests and resistance against the continuation of the trials. We can only hope that Agnes Pittendriech’s baby was born safely and that descendants of her still trample this planet.

In 2004, 81 convicted witches from Prestonpans were ‘pardoned’ by the Scottish Government. There have been calls to pardon other convicted witches; or for the Government to say sorry for the injustice done to them. However, the central authorities in the 17th century have actually in many cases restricted witchcraft trials. Most of the impetus for the hunts seem to have come from local sources, sometimes neighbours of the accused because of perceived malefice, sometimes from local clergy or the local laird in their zealousness to make Scotland a Godly country. According to the laws of the land, witchcraft and sorcery were crimes. Those who practiced magic or consulted witches, if caught, were likely to be tried. In our day and age we may not agree with the Witchcraft Act of 1563, but it was passed through the Parliament. As far as we can know, the central justice system in Scotland was trying to be fair when hearing witchcraft cases: evidence was heard and sometimes contested. Not all those accused were convicted and not all those convicted were sentenced to death. The Privy Council was very aware that when trials were presided over by local lairds, inexperienced in law, it was more likely that the accused would be convicted. They did take steps to remedy this.
350 years ago, the expression ‘witch-hunt’ still lives on. It is used for when a particular group in society is perceived to be evil and attempts are made to flush them out and punish them. The Communist witch-hunts in America in the early sixties are still fresh in the mind and in our generation we are hunting terrorists and child abusers: the personification of evil and witches of our time. The problem with seeing witches in our midst is that innocent people tend to get caught up in the hunt; as a consequence, due process is not always followed. We have seen recent cases of judicial torture; we sometimes see people take the law in their own hands. We may be patronising about our ancestors with their belief in magic and devils, writing them off as superstitious and ignorant but when we continue to divide the world in ‘us’ and ‘them’ the potential for similar mistakes is still there today.

Hindsight is a beautiful thing.