The worst witch trials in the world were the ones that happened in Scotland throughout the 1660s. When we think of them, most of us conjure images of lynch mobs and burning people alive out of vigilante rage.
Neither of those things are unheard of, but most often, a witch was tried by due process. For judicial proceedings that are almost 400 years old, that process has been surprisingly well-documented—especially considering it largely occurred in a place where most of the inhabitants were illiterate. I say illiterate because it’s true, but like illiteracy now and always, not being able to read did not signify a lack of intelligence. It signified a lack of access to education.
These were not hasty trials, even though they happened quickly. First, a crime had to be decided upon.
To qualify, something inexplicable had to happen. For example, a house burned down, or a cow stopped producing milk. It was always a material thing, usually having to do with one’s quality of life or means of income. A blighted harvest could count. Or getting suddenly sick. In this period, the Kirk of Scotland was all Calvinist, and that meant that if something bad happened to you, it was a direct punishment from the hand of God.
That is, unless you didn’t do anything to deserve the punishment.
If the victim of the ill fortune believed they had done nothing wrong, then the terrible thing must have happened by malefice, or crime by witchcraft. The victim then reported it to their nearest local court, and they asked for a trial.
The local court would first determine whether what occurred was an actual crime, Julian Goodare says in "Witch-Hunting and the Scottish State” from The Scottish Witch-Hunt in Context, based on prima facie evidence. The court’s judge might be the one who decided, asserts Christina Larner in her book, Enemies of God, but more often it was his clerk who made the call.
After that, the suspected witches were arrested. Christina Larner goes on to say that, because “gaols” proper didn’t exist—and because jails were only ever used as holding cells before a trial, never as an actual sentence—the suspects were often kept in kirk steeples and tollbooths. Guards were just townspeople paid to help out.
The suspects were then interrogated. Sometimes they were tortured judicially. The abominations in this section could be and are their own books of research, but, according to Lauren Martin in her essay “The Devil and the Domestic: Witchcraft, Quarrels and Women’s Work in Scotland” from The Scottish Witch-Hunt in Context, the most common form of torture was “waking,” or sleep deprivation. A witch pricker might also be called to help procure a confession of witchcraft from the suspect.
After the local court had a confession in hand—sometimes even if they couldn’t secure one—they petitioned a commission from the Central Court in Edinburgh to prosecute the crime, then called “trying and burning,” according to Montague Summers’ Introduction to the Malleus Maleficarum. More often than not, the commission was granted, typically to a local court of named individuals. Summers also says they were “usually landowners and their most substantial tenants and legal officers.”
This was cheaper than prosecuting the case in Justiciary court, with the added benefit that the locals kept the power. And when a local court was granted a commission, there was a very low acquittal rate.
After the commission was secured, a full dittay (or list of offenses, a rap sheet) was drawn up, according to PG Maxwell-Stuart in An Abundance of Witches: The Great Scottish Witch-Hunt.
He goes on to detail that 15 men (landowners detailed above) were chosen from an available list to muster for an assize (the jury, basically). About half of them were from the local town or neighborhood, which means they would have probably known both the accused and the victim.
At the trial, the accused’s “proloquitor” (defense advocate) sought to have items struck from the dittay on the grounds of legal evidence. Defense largely consisted of trying to reduce the number of points on which they would be tried.
The final dittay was read aloud, and the panel (accused) pleaded guilty or not guilty. Then, witnesses repeated their accusations to the assize. Then the narrative was fully passed over to the victims.
It’s important to note, Maxwell-Stuart says, “Scottish law-court was not adversarial theatre.” Meaning, it was not at all like a courtroom drama. What’s detailed above is all that happened in the actual courtroom—which was often the church—according to records of the time.
The assize then retreated to a separate room and elected a chancellor (a spokesperson). They considered each item on the dittay and voted guilty or not guilty on each. Majority determined the verdict, according to Maxwell-Stuart.
Then the assize returned and the chancellor announced the verdict. It was almost always “guilty.” With torture and unfair weighing of the evidence, how could it not be?
If the verdict was “guilty,” the death sentence followed in a matter of days, as witchcraft was a capital offense. The dempster (court official) pronounced the details of the sentence to the court: strangulation, burning of the body, confiscation of moveable goods.
The execution/carrying out of the sentence was set for just a few days ahead, to allow for enough time to engage a hangman. The hangman was usually the local locksmith, according to Christina Larner’s book, though I can’t seem to locate why the locksmith was selected for this heinous task. They also needed to arrange for fuel supplies. Larner notes that it took 16 loads of peat to burn a witch, if not more coal and wood.
The townspeople then prepared for the great public occasion. Larner says that the town fasted for days, and all ministers in reasonable traveling distance contributed to the round of sermons.
When the day of the execution arrived, Larner continues, the hired hangman first strangled the witch by garroting. The witch would be seated in front of a stake, likely bound to it or a chair, as the hangman looped a rope around her neck. On the back side of the stake, the hangman inserted a stick into the loop and turned it, gradually tightening the rope.
Then, the convicted witch’s dead or unconscious body was burned, sometimes in a tar barrel.
Montague Summers says in the Malleus Maleficarum’s introduction that most of the time, that’s where the records end. Their goods were confiscated, we know, mostly to pay for the expenses of the trial and execution. But, “Neither the level of bureaucratic development nor the local funds for sending messengers to Edinburgh encouraged the reporting back of results of trials, and therefore a high proportion of commissioned cases have properly to be recorded as of unknown outcome…although the acquittal rate in the court of Justiciary was over fifty percent, for Privy Council Commissions [locally tried cases] it was very low.”
Because this bureaucracy was ultimately a failure, this quick trial and subsequent execution was completely legal. The only reason the witch trials stopped, according to Brian P. Levack’s essay, “The Decline and End of Scottish Witch-Hunting” in The Scottish Witch-Hunt in Context, is because of increased control from the central government. That happened in 1662.
Levack says, "There was a significant increase in the number of trials that were conducted, or more closely supervised, by central judicial authorities, a development that resulted in a higher number of acquittals [and] there was a reduction in the incidence of judicial torture and the more frequent dismissal of cases in which it had been used illegally. Finally, in all witchcraft trials there was a more careful weighing of the evidence and greater adherence to strict standards of judicial proof.”
It wasn’t until 1736, decades later, that the British Parliament officially determined that witchcraft was no longer a crime.
