Judicial Procedures (Edexcel A-Level History): Revision Notes
Judicial Procedures
The 'general commission', 1591–97
Historical debate about the commission
Historians disagree about whether a formal general commission for trying witches actually existed during this period. This debate is important because it affects how we understand the legal basis for the widespread witch trials.
Christina Larner's view:
- Suggested that a general commission was established in the final stages of the North Berwick panic (around 1590-91)
- Believed it was eventually revoked due to miscarriages of justice
Jenny Wormald's view:
- Proposed that the commission began later, around 1592
- Disagreed with Larner about the timing
Julian Goodare's view:
- Questioned whether any formal commission existed at all between 1591 and 1597
- Argued that trial procedures did not actually change during the 1590s
- Maintained that trials continued to follow the system established by the Witchcraft Act of 1563, which allowed trials either in Edinburgh or in local areas with permission
Despite this academic disagreement, historians agree on one key point: whatever system was in place, it made witch trials very easy to arrange and convictions highly likely.
Parliamentary discussion
The Scottish parliament discussed legislation regarding procedures for dealing with witches in 1597, but unfortunately the details of this discussion have been lost to history. This means we cannot know exactly what changes, if any, were proposed or implemented.
Lost Historical Records
The absence of detailed records from the 1597 parliamentary discussion represents a significant gap in our understanding of how judicial procedures for witchcraft may have evolved during this critical period.
Key commissions and cases, 1591–96
The period between 1591 and 1596 saw various commissions established and cases heard, demonstrating how the judicial system operated in practice.
October 1591 commission
In October 1591, five judges were appointed to a commission with no specified subjects (meaning they had broad powers). Crucially, these judges were given the authority to torture suspects at will. This meant they could use torture without specific approval for each case, making it a powerful and potentially dangerous tool.
Unrestricted Torture Powers
The October 1591 commission's authority to torture suspects without case-by-case approval represented a significant escalation in judicial power. This lack of oversight created conditions where torture could be applied arbitrarily and excessively.
Mid-1592 commissions
Around the middle of 1592, King James granted commissions to nobles and magistrates throughout Scotland. These commissions gave local elites the power to investigate and try suspected witches in their own areas. This decentralisation of power meant that trials could happen more quickly and frequently, but also with less oversight.
1596 changes
By 1596, King James made an important change to the system. He proclaimed that all requests for commissions in witchcraft cases should be submitted to the Privy Council for discussion, rather than being sent directly to the king himself. This suggests an attempt to introduce more control and oversight into the process.
In the same year, the Privy Council gave a commission to Sir William Steward to investigate accusations of sorcery and witchcraft in the Highlands and Islands region, along with other crimes such as murder and theft. This shows how witchcraft investigations were sometimes combined with other criminal matters.
The Alison Balfour case (1595)
The case of Alison Balfour in 1595 demonstrates the serious problems with the judicial procedures of this period and helps explain why reforms were eventually needed.
Case Study: Alison Balfour (1595)
The accusations:
- Balfour was accused of being hired by Patrick Stewart to poison his brother
- This was initially a case of maleficium (harmful magic)
The torture:
- Edinburgh authorities tortured Balfour for two days
- Crucially, they did this without a warrant from the king
- Her 81-year-old husband was tortured by having iron bars pressed on his body
- Her son was tortured with boots (a device that crushed the legs)
- Her seven-year-old daughter was tortured with thumbscrews
The outcome:
- Balfour confessed under torture
- She later recanted (withdrew) this confession
- Despite the recantation, she was executed anyway
- The torture of her family members, especially her young daughter, was considered excessive even by the standards of the time
Historical Significance of the Balfour Case
This case is important because it helps explain why the Privy Council reduced the number of commissions granted after 1597. The abuse of power and the torture of innocent family members, including a child, demonstrated that the system was producing miscarriages of justice. The execution despite recantation showed how confessions obtained under torture were valued more highly than subsequent denials, even when the torture was unauthorized.
Impact of judicial procedures on persecution
Why trials were easy to arrange
Several features of the judicial system made it simple to initiate witch trials:
- Decentralised authority: Commissions could be granted to local nobles and magistrates, meaning trials did not all have to go through Edinburgh
- Broad powers: Commissions often gave wide-ranging authority without specific limitations
- Torture permissions: The ability to torture suspects made it easier to obtain confessions
- Limited oversight: Before 1596, there was little central government supervision of local trials
- Multiple routes: Cases could be heard either in Edinburgh or locally, providing flexibility for accusers
Why convictions were likely
The judicial procedures also made it highly probable that accused witches would be convicted:
- Use of torture: Torture could compel suspects to confess, even if innocent
- Low standards of evidence: The system did not require strong proof beyond confessions
- Chain accusations: Tortured suspects often named accomplices, leading to more arrests
- Limited defence options: Accused witches had few legal protections or rights to defend themselves
- Local prejudices: When trials were held locally, personal grudges and community tensions could influence outcomes
- Acceptance of confessions under torture: Even when suspects later withdrew confessions made under torture, these recantations were often ignored (as in the Balfour case)
The Self-Perpetuating Nature of Witch Trials
The combination of torture powers, low evidence standards, and chain accusations created a self-perpetuating cycle. One tortured suspect naming accomplices could trigger multiple new arrests, each potentially leading to more accusations under torture. This mechanism, combined with limited oversight, helps explain the rapid spread of witch trials during this period.
Key Points to Remember:
- Historians disagree about whether a formal general commission existed 1591-97, but all agree the system made trials easy to arrange and convictions likely
- Key commissions were established in October 1591 (with torture powers), mid-1592 (to local nobles), and 1596 (with Privy Council oversight)
- The Alison Balfour case (1595) demonstrated serious abuses: torture without a warrant, torture of family including a seven-year-old child, and execution despite recantation
- The judicial procedures facilitated widespread persecution through decentralised authority, torture permissions, and limited oversight
- Changes in 1596 requiring Privy Council approval and the eventual reduction of commissions after 1597 suggest growing concern about miscarriages of justice