[E II. 53. 2004 P&D
02] Grant of an Absolute
Pardon to those convicted
of ‘conjuration or
sorcery’ in and from
the jurisdiction of the
Barons Courts of Prestoungrange
and Dolphinstoun constituting
the capital offence of witchcraft
before enactment of The
Witchcraft Act 1735:
UPON THE PETITION
of the Fiscal of the Baron
Courts of Prestoungrange
and Dolphinstoun as a class
action on behalf of those
persons [many but not all
of whom were identified
by Pugh, Roy J M, in The
Deil’s Ain, 2001]
convicted of ‘conjuration
or sorcery’ [but excluding
those convicted of treason
in 1590 when the several
instances of witchcraft
were cited as ‘against
the King’s person’]
in and from the jurisdiction
of the Barons Courts of
Prestoungrange and Dolphinstoun
constituting the capital
offence of witchcraft before
enactment of The Witchcraft
Act 1735:
1. THAT legally defined
as ‘conjuration or
sorcery’ under Statute
1603, 1 Jac. I, c. 12, declares
that “all persons
invoking any evil spirit,
or consulting, covenanting
with, entertaining, employing,
feeding, or rewarding any
evil spirit; or taking up
dead bodies from their graves
to be used in any witchcraft,
sorcery, charm, or inchantment;
or killing or otherwise
hurting any person by such
infernal arts, should be
guilty of felony without
benefit of clergy, and suffer
death.”
2. THAT before the enactment
of The Witchcraft Act, 1735,
thousands of people throughout
Scotland, mainly friendless
elderly women and their
cats, were executed for
‘conjuration or sorcery’
under the Statute 1603,
1 Jac. I, c. 12: A woman
was burned at the stake
in Scotland for this offence
as late as 1722; a woman
was burnt at the top of
Castlehill in 1726 in Edinburgh;
and the last execution of
a woman for witchcraft occurred
in Dornoch in 1727.
3. THAT all elderly women
were at risk for accusation
of this crime, particularly
those who had become crotchy
or bent with age, who were
forced to use a walking-stick,
or who were supposedly under
evil influences because
they mixed herbs to cure
the ailing.
4. THAT witch-hunts throughout
Scotland were sponsored
by the public authorities
of the day, and under Queen
Mary’s law of 1563
witches were regarded as
heretics.
4.A. The worst years of
witch-hunting were between
1629 and 1663, with peaks
of hysteria in 1630, 1649,
1650, 1661 and 1663.
4.B. The order for a witch-hunt
by the Magistrate of the
town or the local presbytery
was a signal for much blood-letting,
allowing the whole town
or village to give vent
to their superstitious fears.
4.C. If someone knew something
odd about an old woman,
or had suspicions, they
were encouraged to report
the same. Under Mary’s
law of 1563 to deny the
existence of witchcraft
or to assist anyone so accused
made one equally guilty.
4.D. The investigations
which followed such accusations
were conducted in an atmosphere
of terror with total physical
examinations by witch prickers.
Confessions were extracted
by hideous tortures as described
by Pugh. Some would be dipped
in the river or held under
freezing water
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until they confessed. If
by some lucky chance, they
survived, they were considered
innocent. Many old women
died from drowning whilst
undergoing such tortures.
The use of lashes, witch
bridles, irons and pilniewinks
was widespread to extract
confessions.
4.E. Most of the accused
broke down, confessing to
crimes of which they were
innocent, to stop the cruel
treatment which they were
receiving. Convicted upon
such ‘confessions’,
they were burnt at the stake.
5. THAT the Statute 1603,
1 Jac. I, c. 12, gave rise
to the profession of Witchfinder,
individuals who were appointed
throughout Scotland to ferret
out witches:
5.A. The public authorities
gave witchfinders extraordinary
investigative powers with
which toferret out witches:
Witchfinders frequently
pricked suspects with pins
until they found the ‘devil’s
mark’
5.B. The victims of witchfinders
had no refuge. None dared
to defend alleged witches
as the witchfinders would
accuse such defenders of
also being witches.
5.C. Existence of this situation
provided an easy way for
one to get rid of one’s
enemies simply by accusing
them of witchcraft. Persons
so accused were convicted
in public opinion on the
very making of the charge.
Hence, numerous people were
frequently accused of witchcraft
by enemies or persons coveting
their property as an easy
means of removing them.
This situation was fraught
with opportunity for gross
public fraud by waging private
vendettas under the guise
of ‘witchcraft’.
As professional witchfinders
were all too happy to have
‘suspects’ denounced
to them, they took little
care to examine the validity
of such charges.
6. THAT Reginald Scott wrote
The Discoveries of Witchcraft
in 1584 with the goal of
preventing the further persecution
of people popularly believed
to be witches. The declared
purpose of his studies was
‘to expose the impostors
on the one hand, and the
credulity on the other that
supported the belief in
witchcraft’.
7. THAT before the enactment
of The Witchcraft Act, 1735,
some two hundred persons
are believed to have been
convicted of ‘ conjuration
or sorcery’ within
the jurisdiction of the
Baron Courts of Prestoungrange
and Dolphinstoun and executed
for the crime of witchcraft
pursuant to the Statute
1603, 1 Jac. I, c. 12:
7.A. Most of those persons
condemned for witchcraft
within the jurisdiction
of the Baron Courts of Prestoungrange
and Dolphinstoun were convicted
on the basis of ‘spectral
evidence’ –
that is to say prosecuting
witnesses declared that
they ‘felt’
the presence of evil ‘sprits’
or ‘heard’ spirit
‘voices’.
7.B. Such ‘spectral
evidence’ is impossible
to prove or to disprove;
nor is it possible for the
accused to cross-examine
the ‘spirit’
concerned. One is convicted
upon the very making of
such charges without any
possibility of offering
a defence.
7.C. Scots law permits three
verdicts: “Guilty”,
“Non Guilty”,
and “Not Proven”.
The latter implies insufficient
evidence.
7.D. At the least, some
of the two hundred or more
persons convicted of ‘
conjuration or sorcery’
within the jurisdiction
of the Barons Courts of
Prestoungrange and Dolphinstoun
and executed for the same
were convicted on the basis
of insufficient evidence
due to the obvious inability
of the accused to confront
the ‘spirit’
and to disprove such ‘spectral
evidence’ upon which
they were condemned.
8. THAT Blackstone’s
Commentaries on the Laws
of England, Book IV, p.
60, says the following of
witchcraft:
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8.A. “A sixth species
of offence against God and
religion, of which our ancient
books are full, is a crime
of which one knows not well
what account to give. I
mean the offence of witchcraft,
conjuration, inchantment,
or sorcery.
8.B. “The president
Montesquieu ranks them also
both together, but with
a very different view; laying
it down as an important
maxim, that we ought to
be very circumspect in the
prosecution of magic and
heresy; because the most
unexceptional conduct, the
purest morals, and the constant
practice of every duty in
life, are not a sufficient
security against the suspicion
of crimes like these.”
8.C. “Wherefore it
seems to be the most eligible
way to conduct, with an
ingenious writer of our
own, that in general there
has been such a thing as
witchcraft; thought one
cannot give credit to any
particular modern instance
of it.”
8.D. “Our forefathers
were strong believers, when
they enacted by statute
22 Hen. VIII, c. 8, all
witchcraft and sorcery to
be felony without benefit
of clergy; and again by
statute 1 Jac. I, c.
12.
8.E. “These acts continued
in force till lately, to
the terror of all ancient
females in the kingdom:
and many poor wretches were
sacrificed thereby to the
prejudice of their neighbours,
and their own illusions;
not a few having, by some
means or other, confessed
the fact at the gallows.”
8.F. “But all executions
for this dubious crime are
now at an end; our legislature
having at length followed
the wise example of Louis
XIV , in France, who thought
proper by an edict to restrain
the tribunals of justice
from receiving information’s
of witchcraft.”
8.G. “And accordingly
it is with us enacted by
statute 9 Geo. II, c. 5,
that no prosecution shall
for the future be carried
on against any persons for
conjuration, witchcraft,
sorcery, or enchantments.”
9. THAT as it appears that
nearly one hundred persons
who were convicted of ‘conjuration
or sorcery’ within
the jurisdiction of these
our Baron Courts of Prestoungrange
and Dolphinstoun and executed
for the same were convicted
on the basis of legally
“insufficient evidence”
and many were probably the
victims of personal vendettas
by enemies who alleged the
commission of ‘Witchcraft’
solely as a means to getting
rid of the accused; the
Fiscal of the Baron Courts
of Prestoungrange and Dolphinstoun
now petitions and moves
these Baron Courts to vacate
retrospectively the conviction
of all persons accused of
‘conjuration or sorcery’
[excepting those found guilty
of treason] within the jurisdiction
of the Baron Courts of Prestoungrange
and Dolphinstoun on the
grounds of evidence insufficient
in law upon which to base
a conviction and to grant
in the Name of the Barons
Courts an Absolute Pardon
to those persons so convicted
of ‘conjuration or
sorcery’ within their
jurisdiction.
FINDINGS OF THE
BARONS COURTS
On 27th July 2004 in the
Trinity Session of our Baron
Courts of Prestoungrange
and Dolphinstoun we pronounce
the following interlocutor:
Finds in Fact:
1) That it appears that
a gross miscarriage of justice
was inflicted upon many
persons convicted o ‘conjuration
or sorcery’ within
the jurisdiction of the
Baron Courts of Prestoungrange
and Dolphinstoun and executed
for the same before the
enactment of The Witchcraft
Act 1735.
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2) THAT before the enactment
of The Witchcraft Act, 1735,
thousands of people through
out Scotland and their cats,
were executed for ‘conjuration
or sorcery’ under
the Statute 1603, 1 Jac.
I, c. 12, upon legally insufficient
‘spectral evidence’
under Scots Law: That is
to say, the ‘voices’
or actions of ‘spirits’
given as ‘evidence’
of the ‘guilt’
of the accused.
3) THAT those persons condemned
for witchcraft within the
jurisdiction of the Baron
Courts of Prestoungrange
and Dolphinstoun were convicted
on the basis of ‘spectral
evidence’, that is
to say, the ‘voices’
or actions of ‘spirits’
given as ‘evidence’
of the ‘guilt’
of the accused.
4) THAT this gave rise to
a situation of waging private
vendettas by accusing one’s
enemies of witchcraft.
5) THAT all those persons
and their cats were convicted
of ‘conjuration or
sorcery’ within the
jurisdiction of the Baron
Courts of Prestoungrange
and Dolphinstoun and executed
for the same were convicted
on the basis of legally
insufficient “spectral
evidence” and were
probably the victims of
personal vendettas by personal
enemies who alleged the
commission of ‘Witchcraft’
solely as a means to getting
rid of the accused.
Finds in Law:
1) THAT ‘spectral
evidence’, consisting
of the ‘voices’
or ‘actions’
of evil spirits, is impossible
to prove or to disprove
in a court of law; nor is
it possible for the accused
to cross-examine the ‘spirit’
concerned: One is convicted
upon the very making of
such charges without any
possibility of offering
a defence against such ‘spectral
evidence’.
2) That, at the least, the
verdict of “Not Proven”
should have been rendered
in all cases and situation
where those accused of witchcraft
were convicted on the basis
of legally insufficient
‘spectral evidence’.
3) That all those persons
and their cats convicted
of ‘conjuration or
sorcery’ within the
jurisdiction of the Baron
Courts of Prestoungrange
and Dolphinstoun and executed
for the same were wrongly
convicted upon the basis
of “spectral evidence”
legally insufficient under
Scots law to sustain a conviction.
HELD:
1) The Baron Courts of Prestoungrange
and Dolphinstoun rule that
weightily and sufficient
grounds of both fact and
law exist for vacating the
conviction of all those
person and their cats who
were convicted of ‘conjuration
or sorcery’ within
the jurisdiction of the
Baron Courts of Prestoungrange
and Dolphinstoun and executed
for the same before the
enactment of The Witchcraft
Act 1735: In all cases such
convictions were based upon
‘spectral evidence’
legally insufficient under
Scots law to sustain a conviction.
In all such cases the verdict
of “Not Proven”
ought to have been rendered
by the Baron Courts of the
day.
2) Accordingly, the Baron
Courts of Prestoungrange
and Dolphinstoun grant an
Absolute Pardon to those
persons convicted of ‘conjuration
or sorcery’ within
their jurisdiction before
the enactment of The Witchcraft
Act 1735 as well as to the
cats concerned.
3) Furthermore, the Baron
Courts order that this most
unfortunate carriage of
justice inflicted upon such
persons and their cats be
remembered: (i) in murals
to be painted in the baronies
depicting their plight;
(ii) by an historical record
being published that both
recounts their alleged crimes
and punishments and records
such Absolute Pardon; and
that (iii) the tragic events
involved be re-enacted each
year on Hallow-e’en
and from time to time as
a living reminder of this
earlier process of justice
in Scotland.
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