The Supernatural Trials Concerning the Witchcraft Act, 1735

In the year 1944, a trial took place which has rightly been described as one of the most curious interludes in the long annals of the Old Bailey. A well-known spiritualist medium, Mrs Helen Victoria Duncan, and three associates were indicted under the Witchcraft Act of 1735, a statute which had very rarely been used in the two hundred years of its existence and was commonly thought to be obsolete.

According to the first and second counts in the indictment, the prisoners had conspired together “to pretend to exercise or use a kind of conjuration, to wit, that through the agency of the said Helen Duncan spirits of deceased persons should appear to be present in the place where Helen Duncan then was” on certain specified dates. The remaining counts alleged the more prosaic offences of “intent to defraud” and “effecting a public mischief.”

After a trial lasting seven days, the accused were convicted and duly sentenced by the Recorder of London. An appeal to the Court of Criminal Appeal was rejected. An admirable account of the whole astonishing proceedings. In the course of which over fifty witnesses were examined, has been published by Mr Bechofer Roberts, a member of this Society.

It is hardly surprising that the trial excited some uneasiness among the general public, who are always suspicious of the revival of obsolescent legislation, and still greater alarm among the large body of spiritualists, who foresaw a species of religious persecution. In spite of careful expositions by the learned Recorder who tried the case, and by Viscount Caldecote, Lord Chief Justice, in the Court of Criminal Appeal, the Act of 1735 has been persistently misrepresented as a survival of mediaeval superstition and a measure designed for the prosecution of alleged witches.

In point of fact it had exactly the opposite intent. It repeals the previous statute of James I, which did subject witches to severe penalties, and lays down that “No Prosecution Suit or Proceeding shall be commenced or carried out against any person or persons for Witchcraft, Sorcery or Enchantment or Conjuration, or for charging another with such offence in any Court whatsoever in Great Britain.”

So far so good, but the Act goes on to provide that any person who may “pretend to exercise or use any kind of witchcraft, sorcery, enchantment or conjuration shall be liable on conviction” to a year’s imprisonment and four appearances in the pillory: What relevance, it is still being asked, can these long-forgotten practices have to modern spiritualism, and how can a medium hope to prove that her actions are free from “pretence”?

The matter cannot end with Mrs Duncan’s conviction, and there was in fact, later in the same year, another successful prosecution of a professional medium under the same statute.” To form a judgment on this small but intricate problem, it is necessary to have some idea of the circumstances which the Act was framed to meet, and of the connexion between witchcraft and spiritualism. The inquiry raised many points of medico-legal interest.

Let us first note briefly the elements of which sorcery and witchcraft were compounded and the measures taken by the English law to protect the lieges against these dangers to body and soul. The basis of both witchcraft and sorcery is the practice of magic, the instinctive attempt of human beings to find a “Word of Power” with which to control and bend to their own will the forces of nature and the vagaries of fate.

The motive of magic is not necessarily bad, and the means not necessarily improper; there is white magic and black. Moreover, at a time when causal relationships between natural phenomena were imperfectly understood and the very conception of fixed laws in nature not generally appreciated, any attempt to control natural forces, even for legitimate purposes such as healing the sick or improving crops, might easily touch on forbidden ground.

Charms and spells were in universal use, the precise modus operandi of which was obscure even to the users thereof. It could have been by no means clear to the vulgar what “Higher Powers” it was legitimate to invoke and which were forbidden to good Christians. But where much was uncertain, this much was not in doubt: the Church and the Law were always quite definitely concerned to suppress the following proceedings:

• Such occult practices as involved any sort of blasphemy or heresy.
• Any direct appeal to or traffic with diabolic forces, e.g., the pact with Satan which came to be implied in the term “witchcraft.”
• The conjuration or invocation of “spirits,” whether such spirits were the ghosts of deceased persons or the non-human entities (good or evil) with whom the universe was then believed to be richly peopled.
• The use of magic of any sort as a means to the commission of other crimes such as treason, murder, infliction of disease or impotence. And finally,
• the presence of magical powers for the purpose of blackmail, fraud or “cozenage” of any kind.

All these elements will be found in the history of witchcraft in all times and in all countries in varying degrees.

In England, witchcraft found a place in the earliest Saxon codes, both civil and ecclesiastical, the authorities from the Pseudo-Theodore (668) to King Canute in 1014 being evidently gravely concerned to suppress lingering traces of Paganism and nature-worship and the resort to diviners and soothsayers.

The penalties inflicted were long fasts and penances. With the Norman kings comes the mention of murder by veneno, which may mean magic or poison, and by invultacio, the ancient but still current practice of pricking images of wax or lead.

Not until the fourteenth-century is there any specific identification in English records of witchcraft with heresy, and of the Sabbat or other manifestation of ritual witchcraft (so common on the Continent) there is hardly a hint at any time.

Theoretically, large numbers of witches might have been hanged or burnt as heretics in mediaeval England, as of course, they were in their thousands on the Continent, but there is no record that such tragedies actually occurred here and the presumption is against it.

The industry of Professor Kittredge of Harvard has brought to light, from the records before 1553, a great number of references to accusations of sorcery against all classes of persons from royalty and bishops down to the humblest folk. But the cases are in the main vague and trivial and the penalties light.

If the mediaeval sorcerer could keep away from royal clients, he had little to fear.

Professor Kittredge has pointed out that all his researches have unearthed only the most trivial amount of alleged damage by sorcery in the long centuries between Saxon and Tudor times, to wit: 0ne woman, Aelsi, killed by image magic in the loth century, one man (Richard de Sowe), slain by the same method in the 14th century in the course of a conspiracy against Edward III; one broken leg in the 15th century, and certain kings “moved to unlawful love!” And that is literally all.

The known executions during this period are as incredibly scanty. They amount to a total of five in the six centuries before the Reformation.