Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/662

Rh 622 WITCHCRAFT approved the statutory provisions on the subject; and Blackstone in guarded language said that its exclusion from the list of crimes was not to be understood as imply ing a denial of the possibility of such an offence, though, foflowing Addison, he would not give credit to any particular modern instance. In the present state of the law pretended supernatural powers may be such as to bring those professing them under the criminal law, or to make void a transfer of pro perty caused by belief in their existence. The Act of 1736 enacted that any person pretending to use witchcraft, tell fortunes, or discover stolen goods by skill in any occult or crafty science, was to be imprisoned for a year, to stand in the pillory, and to find sureties for good behaviour. This is still law, except as to the pillory. By the Vagrant Act of 1824, 5 Geo. IV. c. 83, s. 4, any person pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of Her Majesty s subjects, is to be deemed a rogue and vagabond. Under this Act a person may be convicted for attempting to deceive by falsely pretending to have the supernatural faculty of obtaining from invisible agents and the spirits of the dead answers, messages, and manifestations of power, viz., noises, raps, and the winding up of a musical box. 1 So may one who issues an advertisement professing to forecast the future, though no money is received, and the future of a particular person is not told. 2 A false pretence of witchcraft is also punishable under the Larceny Act of 1861, 24 and 25 Viet. c. 96. It has been held that a false pretence that the defendant had the power to bring back the husband of the prosecutrix over hedges and ditches was within the statute. 3 In a case in Chancery in 1868 a widow lady, aged seventy-five, was induced by the defendant, a spiritual medium, to transfer a large sum of money to him, under the belief that such was the wish of her deceased husband as declared in spiritualistic manifestations. The court held that his claim of supernatural power constituted undue influence, and that the gift must be set aside. 4 See, in addition to the authorities cited, Sir Walter Scott s Letters on Demonology and Witchcraft ; Stephen, Hist, of the Criminal Law, vol. ii. ch. xxv. ; Pike, Hist, of Crime in England, esp. vol. ii. p. 131 sq. ; Dr Nicholson s Introduction to Reginald Scot s Discovery of Witchcraft; Spa! ding, Elizabethan Demonology, ch. iii. ; also reports of particular cases, such as the trial of the Suffolk witches, published in a separate form in 1682, and the indictment of the astrologer Lilly for advising to recover stolen goods (when the grand jury threw out the bill), to be found in his autobiography. Scotland. The principal Act of the Scottish parliament was 1563, c. 73 (ratified and confirmed in 1649), making it a capital offence to use witchcraft, sorcery, or necromancy, or to pretend to such knowledge, or to seek help from witches. It was repealed by 9 Geo. II. c. 5. Trials were either before the ordinary courts or, more frequently, before special tribunals erected by the authority of commissions from time to time issued by the privy council, often on the petition of a presbytery or the General Assembly. Boxes were placed in the churches to receive accusations. The frequency of cases is shown by an order of parliament in 1661 that justices depute should go once a week at least to Musselburgh and Dalkeith to try persons accused of witchcraft. In these trials evidence of the wildest description was admitted. Anything was relevant, especially if sworn to by a professed witch-finder or witch-pricker, a position in which one Kincaid, like Hopkins in England, attained special eminence. Torture was used in most cases, and in an aggravated form, as it was supposed that the devil protected his votaries from the effects of ordinary torture. A special form of iron collar and gag called &quot;the witch s bridle &quot; was generally used. The details of the trials in Pitcairn s Criminal Trials are utterly revolting, especially those of Bessie Dunlop in 1576 and of Dr Fian in 1590. One of the charges in the former case is very remarkable, and the accused herself confessed it, that she acted under the 1 Monck v. Hilton, Law Rep., 2 Exch. Div., 268. 8 Penny v. Hanson, 16 Cox Grim. Cos., 173. 3 Reg. v. Giles, Leigh and Care s Rep., 502. 4 Lyon v. Home, Law Rep., 6 Equity, 655. A very similar case occurs among the plaidoy& rs of D Aguesseau, CEuvres, vol. v. p. 514. guidance of the spirit of Thome Reid who had been killed at Pinkie in 1547. In some cases a charge of witchcraft was joined with a charge of another crime, as of murder in the master of Orkney s case, of treason in Dr Fian s, accused of raising a storm at sea when the king was on a voyage. 5 James VI. was frequently present in person at trials for witchcraft, and the most horrible cases recorded are those which occurred in his reign. The full pleadings in a charge are given in the case of Margaret Wallace. 6 It is noticeable that the articles of dittay began by resting the criminality of sorcery upon the divine law as contained in the 20th chapter of Leviticns and the 18th chapter of Deuteronomy. The punishment was gene rally burning. The last execution took place in 1722, after convic tion before the sheriff of Sutherland. As to pretended powers, the Act of 1736 applies to Scotland, and at common law obtaining money by pretending to tell fortunes or recover property by enchant ment is punishable as falsehood, fraud, and wilful imposition. Sec, further, Sir Walter Scott s Letters; appendix vii. to Pitcairn; the Register of the Prii-y Council of Scotland, passim; Buckle, Hist, of Civilization, vol. ii. p. 190. Ireland. The earliest recorded case is in the same year as the earliest in England, 1324, but in an ecclesiastical and not as in England in a secular tribunal. It was a proceeding against Dame Alice Kyteler and others in the bishop of Ossory s court, which led to a considerable conflict between the church and the civil power. 7 The English statute of Elizabeth was adopted almost word for word by 28 Eliz. c. 2 (I. ). The only other Act of the Irish parliament bearing on the question was 10 Car. I., sess. 2, c. 19 (I.), enacting that if a person bewitched in one county died in another the person guilty of causing his death might be tried in the county where the death happened. It is remarkable that this Act is based upon an English Act, 2 and 3 Edw. VI. c. 24, dealing with the venue in criminal trials, but the English Act does not mention witchcraft. 28 Eliz. c. 2 was not repealed until 1821 by 1 and 2 Geo. IV. c. 18, so that Ireland appears to be distinguished as the last country in which penalties against witchcraft were retained in statute law. United States. The earliest execution in New England is said to have been in 1648. In the abstract of the laws of New England printed in 1655 appear these articles: &quot;III. Witchcraft, which is fellowship by covenant with a familiar spirit, to be punished with death. IV. Consulters with witches not to be tolerated, but either to be cut off by death or banishment or other suitable punishment. &quot; 8 The fanatical outbreak at Salem in 1691-92 is one of the most strik ing incidents in the history of New England. Nineteen persons Avere executed for witchcraft, among whom was Giles Cory, the only person who ever perished by the peine forte ct dure in America (see TORTURE). In 1692 fifty were tried, but only three convicted, and they received the governor s pardon. For these proceedings the writing and preaching of Cotton Mather were largely responsible. The States have now their own legislation against pretended super natural powers. Provisions similar to those of the English Vagrant Act are common. A full account of the proceedings at Salem will be found in Ilutchinson s Hist. of Massachusetts Bay (vol. ii. ch. 1), in Bancroft s Hist, of the Colonization of the United States (iii. 84), and in Cotton Mather s Memorable Providences (Boston, 1689) and Wonders of the Jnvisible World (Boston, 1G93). Continental States. The law against witchcraft was minutely treated by Continental jurists of the 16th and 17th centuries, especially by those who, like Farinaccius and Julius Clarus, were either churchmen or laymen holding ecclesiastical appointments. The extent to which legal refinement could go is well illustrated by the treatise on criminal law by Sinistrari de Ameno, 9 an Italian writer of the 17th century, whose belief in sorcery is strikingly shown by his strange work on the subject called Daemonialitas. 10 He defines sortilegium as &quot;actus humanus quo per media inutilia ant vetita aliquis effectus procnratur ad damnum aut utilitatern propriam aut alienam.&quot; Six species, it appears, were recognized, called amatorium, defensorium, revclatorium, lucratorium, inalc- factorium, divinatorium. There were eleven distinct modes of profession to the service of the devil. Some of the indicia on which torture might be inflicted were absence of the accused from bed during the night, drawing cabalistic signs on the ground, threats of injury, anointing the body. The text of Roman law was sometimes distorted in an extraordinary way: e.g., it was a maxim that a contract with a demon was not binding, and this was ex pressed in the language of Roman law in the formula &quot; in drcmouem cadere non potest obligatio.&quot; In Germany the ecclesiastical courts generally acted, though the crime was sometimes the subject of secular legislation, especially in the Constitutio Criminalis of 5 All these cases will be found in vol. i. of Pitcairn. In one case (noted at p. 216), a jury having acquitted an accused woman who had confessed under torture, the king had them tried for wilful error. 6 Pitcairn, vol. iii. p. 508. 7 The case, edited by Mr Thomas Wright, forms vol. xxiv. of the Canulen Society s publications. 8 Cited in 6 State Trials, 647, where an account of the Salem trials will be found. 9 De Delictis et Pccnis Tractatus Absohitissimus, Rome, 1754. 10 Published at Paris with an English translation in 1879.