The Privy Council and the Witches: The Curtailment of Witchcraft Prosecutions in

Scotland, 1597-1628
Author(s): Michael Wasser
Source: The Scottish Historical Review , Apr., 2003, Vol. 82, No. 213, Part 1 (Apr., 2003),
pp. 20-46
Published by: Edinburgh University Press

Stable URL: https://www.jstor.org/stable/25529681

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The Scottish Historical Review, Volume LXXXII, 1 : No. 213: April 2003, 20-46

MICHAEL WASSER

The Privy Council and the Witches: The

Curtailment of Witchcraft Prosecutions
in Scotland, 1597-1628

It is now more than twenty years since Christina Larner completed h

magisterial synthesis Enemies of God: The Witch-hunt in Scotland.1 Althou
Larner never intended this work to be the final word, after her untim
death witchcraft studies in Scotland entered a fallow period from which it
is only now emerging as younger scholars add to or challenge her wor
One of Larner's most important contributions was to set out a chronol
of the Scottish witch-hunt. Intensive national hunts in 1590-1, 1597
1628-30,1649, and 1661-2 were interspersed with periods of less inten
witch-hunting. While some of the national hunts have received deta
studies, the 'valleys' between the 'peaks' have been neglected.3 This art
examines the longest of these periods, 1597-1628. It argues that it rep
sents a curtailment of witch-hunting organised from above by the Pr
Council. It consisted of two elements: greater centralisation of the pr
cution process and a critical attitude adopted towards accusations and
dence. The council, led particularly by the judges among its member
worked to restrict local enthusiasm, so as to ensure that only the most pla
sible cases were actually prosecuted. This took place against a backgro
of political, judicial and administrative centralisation in Scotland. It m
tated against indiscriminate witch-hunts, and resulted in a relatively
level of trials during this period.

C. Larner, Enemies of God: The Witch-hunt in Scotland (London, 1981).

Some examples include: J. Goodare, 'Women and the witch-hunt in Scotland' So
History, xxiii (1998), 288-308; L. A. Yeoman, 'The devil as doctor: Witchcraft, Wodr
and the wider world', Scottish Archives, i, (1995), 93-105; S. MacDonald, The Witch
Fife: Witch-hunting in a Scottish Shire, 1560-1710 (East Linton, 2002); P.
Maxwell-Stuart, Satan's Conspiracy: Magic and Witchcraft in Sixteenth Century Scotlan
(East Linton, 2001 ) ; and L. Normand and G. Roberts, (eds.), Witchcraft inEarly Mode
Scotland: James VTs Demonology' and the North Berwick Witches (Exeter, 2000).
Goodare, (ed.), The Scottish Witch-Hunt in Context (Manchester, 2002), collects ess
from many scholars in the field.
Larner, Enemies of God, 60-79. Normand and Roberts' book on the North Berw
witches, cited above, is the latest in many studies of this witch-hunt. For two ot
hunts, see J. Goodare, 'The Scottish witchcraft panic of 1597', in Goodare, Scot
Witch-Hunt in Context, 51-72, and B. P. Levack, 'The great Scottish witch-hun
1661-1662', Journal of British Studies, xx (1980), 90-108. The witch-hunts of 1628
and 1649 have yet to be examined in depth.

MICHAEL WASSER is Adjunct Assistant Professor in the Department of History, Conco

University, Montreal, Canada. He is grateful to Dr Julian Goodare and Dr Louise Yeom
for their help and advice with this article.

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THE PRIVY COUNCIL AND THE WITCHES 21

In concentrating on how the Privy Council controlled local demand

it is not intended to suggest that local demand for witch-hunting wa
invariably high. In fact, it varied from place to place and time to time.4 If
it was non-existent, then in the absence of pressure from above it left no
records. A thorough survey of local records can reveal some aspects o
local demand short of actual trials, but this would be laborious, impe
fect, and is beyond the scope of this paper. If a local jurisdiction resiste
a higher one's push for a trial, this could leave records,5 but there are n
instances of the Privy Council chiding local authorities for not pursuin
witches. Instead, our attention is drawn to local demand by seeing how
the council reacted to requests for trials.
The decrease in witch-hunting in Scotland, proceeding as it did by
way of centralisation of procedure and under the influence of profes
sional judges on the Privy Council, resembled similar phenomen
occurring at the same time in France, Spain, and England. In Spain, 'L
Suprema', the central council of the Inquisition, asserted its control t
end the 1609-14 witch-hunt in Navarre.6 In France, the Parlement of
Paris instituted mandatory appeals in witchcraft cases beginning in 160
and gradually restricted both trials and executions.7 In England, the
assize judges acted to restrict witchcraft prosecutions and executions
beginning in the early seventeenth century.8 Brian Levack has attribute
these developments to 'judicial scepticism': scepticism on the part
professional judges and lawyers concerning the reliability of proof in
witchcraft cases.9 The relative lull in witch-hunting in Scotland durin
the period 1597-1628 should be seen in this context.
The measures taken to keep prosecutions low were a reaction to the
excesses of the more decentralised, 'credulous' hunt of 1597. Wha
follows, therefore, begins with the 1597 hunt, and proceeds from ther
to examine the years 1597-1628, looking first at the period in general,
and then at a particular case study to illuminate the issues, methods an
people involved in keeping a lid on witch-hunting. However, the pause
between witch-hunts did eventually come to an end in 1628, and the
final section looks briefly at one aspect of the origins of the 1628-30
See MacDonald, Witches of Fife, esp. chs. 4-7.
For example, the Presbytery of Kirkcaldy resisted Archbishop Gledstanes and th
Synod of Fife in 1613-14. Ecclesiastical Records. Selections from the Minutes of the Synod
FifeMDCXI-MDCLXXXVII[SynodofFife], ed. C. Baxter (Abbotsford Club, 1837), 61
71, 75, 76. The synod was trying to have two witches tried and was organising evidence
to present to the Privy Council; when Gledstanes died, this effort lapsed.
G. Henningsen, The Witches' Advocate: Basque Witchcraft and the Spanish Inquisitio
(1609-1614) (Reno, Nev., 1980).
A. Soman, 'The Parlement of Paris and the great witch-hunt (1565-1640),' Sixteent
Century Journal, ix, (1978), 31-44, and 'Decriminalizing witchcraft: Does the French
experience furnish a European model?', Criminal Justice History, An International
Annual, x (1989), 1-22.
J. Sharpe, Instruments of Darkness: Witchcraft in England, 1550-1750 (London, 1997)
Q
chs. 4 and 9.
B. P. Levack, 'The decline and end of witchcraft prosecutions', in B.
Clark (eds.), Witchcraft and Magic in Europe: The Eighteenth and Nine
(London, 1999), 7-33.

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22 MICHAEL WASSER

hunt, what it says about the limitations of the earlier period of res
persecution, and how the period 1597-1628 compares to the final
of large scale witch-hunting after 1662.10

The 1597 witch-hunt began either very late in 1596 or early in 159
last trials associated with it occurred in November 1597. Between
two dates there were approximately 400 'cases' - i.e., mentions of
vidual witches, many of whom were tried, but some of whom were
little under half of the cases are likely to have resulted in an execution
The sheriffdoms of Aberdeen, Perth, and Fife experienced partic
heavy hunts, but witch-hunting occurred in other parts of Scotl
well, especially Glasgow.12 Witches could be tried before the J
Court in Edinburgh or by judicial commissions granted by the ki
Privy Council to local elites who then held trials in the local comm
The 1597 hunt proceeded byway of commissions, which were the e
and cheapest way of trying a witch.13 A delegation would arrive
plaining of witches in their community, and ask for a commission
would provide the authority to try them. They would then be gi
commission. The commission could be 'special' or 'general'. A s
commission was limited to the people named therein. A gener
mission was limited in geographical area and to a particular time p
but not as to the people who could be tried: the commissioners cou
as many accused witches as they wished without any further con
tions with higher authorities.
What happened in Aberdeen, and probably elsewhere as wel
that initial special commissions were succeeded by a wider gener
mission.14 This general commission was an excellent means of sti
ing a witch-hunt, for full authority was given to those who wan
prosecute, and no check on them was provided. Therefore power s
in the direction of enthusiastic witch-hunters - those who had be
panic over the large number of perceived witches in their midst
who had asked for and received the commission. Those who were
cautious were marginalised. But as the hunt proceeded, oppo

B.P. Levack, 'The decline and end of Scottish witch-hunting', in Goodare, The S
Witch-hunt in Context, 166-81.
Goodare, 'The Scottish witchcraft panic of 1597', 70.1 am grateful to Dr. Good
allowing me to consult this paper and two others prior to publication.
Two articles have recently been published on the Aberdeenshire
P.G. Maxwell-Stuart, 'Witchcraft and the kirk in Aberdeenshire, 1596-97', No
Scotland, xviii (1998), 1-14, and J. Goodare, 'The Aberdeenshire witchcraf
of 1597', Northern Scotland, xxi (2001), 1-21. Goodare's estimates of the s
the 1597 witch-hunt, cited above, are based on projections from the Aberdee
hunt.
Larner, Enemies of God, 70, Goodare, 'The Scottish witchcraft panic of 1597', 55, andj.
Goodare, 'Witch-hunting and the Scottish state' in Goodare, The Scottish Witch-hunt in
Context, 126-8. See below for more on the Justice Court and commissions.
Goodare, 'The Scottish witchcraft panic of 1597', 55.

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THE PRIVY COUNCIL AND THE WITCHES 23

began to mount, as it often did in witch-hunts.15 Disputes in local com

munities over 'to hunt or not to hunt witches' were probably occurring
throughout Scotland.
One source of opposition arose from the notorious progress of Mar
garet Ai tken, 'the great witch of Balweary'. Ai tken was a confessed witch
from Fife who was prolonging her life by claiming to be able to detect
her fellow witches by gazing into their eyes.16 Over a number of months
she had been taken by unnamed authorities through many towns in
Scotland and numerous suspected witches were paraded before her.
Some of these she said were guilty, others she declared innocent. Those
identified as guilty were tried and executed. The only town named was
Glasgow, but since it was on the opposite coast from Fife, the number of
towns visited and people executed was probably large. These proceed
ings were brought to an end by some unidentified sceptics who doubted
their legitimacy. They obtained access to some of the people whom
Aitken had accused and reintroduced them the next day in different
clothes. This 'scientific experiment' was a success - Aitken cleared the
same people whom she had condemned the day before and thus was
exposed as a fraud.
This debacle resulted in a great deal of recrimination and reappraisal
of the witch-hunt. Spottiswood's history is our main source for the story,
and he singles out Mr John Cowper, the minister of Glasgow, for particu
lar blame: 'divers innocent women, through the credulity of the minis
ter, Mr John Cowper, were condemned and put to death.'17 Other
sources tell us that Cowper had to be protected by the church and city
authorities from libels and threats of violence. Robert Stewart, who had
assaulted him and called him 'Murtherer of his barnes', later said that
his only regret was that he had not killed Cowper.18
Aitken's exposure sparked a debate over whether or not to continue
the hunt and over the question of what was to be considered legitimate
evidence of witchcraft, but Cowper's fate shows that this debate was held
in a climate of fear and with the need to protect the powerful men who
had sponsored the hunt. Spottiswood's history, written more than
twenty years later, gives a clean and simple picture of the outcome after
Aitken's exposure:

15 B. P. Levack, The Witch-hunt in Early Modem Europe (London, 1995), 178-82. See The
Register of the Privy Coundl of Scotland [RPQ, 1st ser., v, 405-6, for a July 1597 contest
between a jury that acquitted a witch and burgh authorities who insisted on her
conviction.
This story is told inj. Spottiswood, The History of the Church of Scotland (Spottiswoode
Soc, 1847-51), iii, 66-7. See Henningsen, The Witches' Advocate, 216, for a similar
story in Spain, and R. Briggs, Witches and Neighbors: The Sodal and Cultural Context of
European Witchcraft (New York, 1996), 194, for yet another in France.
Spottiswood, History, iii, 66-7.
Miscellany oftheMaitland Club [Maitland Misc.], i, 90; Extracts from the Records of the Burgh
of Glasgow, A.D. 1573-1642, ed. J. Marwick (Scottish Burgh Record Society, 1876),
200,201,219-20,226-7.

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24 MICHAEL WASSER

which made many forthink their too great forwardness that way, an
moved the king to recall the commissions given out against such person
discharging all proceedings against them, except in the case of volunta
confession, till a solid order should be taken by the Estates touching t
form that should be kept in their trial.19

In other words, people changed their minds, the king took the lead,
hunt was immediately ended and the nation as a whole, acting thro
Parliament, changed the nature of the proceedings. All was harmony
Reality was considerably messier. The Privy Council's order of
August which has been taken as ending the hunt altogether was in f
much more limited. It disbarred only those commissions which
been given in such a way that one or two men alone could act as judg
It ignored the Aitken affair altogether, blaming public discontent so
on malicious prosecutions and giving as its solution the requirem
that at least three or four impartial men should act as judges. And
reiterated the king's determination to proceed with the hunt, enco
aging those whose commissions were now void to come and obtain ne
valid ones.20
Other evidence also points to disputes over the lessons to be drawn,
and the need for a cover-up. Margaret Aitken's new 'confession', which
blamed those who solicited her accusations, and proclaimed all her
victims to be innocent, was written up and distributed, but was sup
pressed by the authorities, so that it now no longer exists.21 An act 'Anent
the forme of proc?s against witches', passed by the 1 November 1597
Parliament was left blank. We know from other sources that it appointed
a commission to inquire into procedures to be used in trying witches,
but its report, if it ever made one, no longer exists.22 Julian Goodare has
shown that efforts were made between August and November to con
tinue the hunt, and that the king was prominent in this cause.23 More
over, a question posed in the General Assembly on 9 March 1598 shows
that there were still some who believed that the procedures used in Mar
garet Aitken's progress might be valid.24

Spottiswood, History, iii, 67.

RPC, 1st ser., v, 409-10. See Larner, Enemies of God, 71-2, for the earlier opinion, and
Goodare, The Scottish witchcraft panic of 1597', 60-62, for its revision.
Spottiswood, History, iii, 66-7; Maitland Misc., i, 90.
Acts of the Parliaments of Scotland [APS], iv, 157: its purpose is shown in Acts and Proceed
ings of the General Assemblies of the Kirk of Scotland from the Year MDLXIBUIQ., ed. T.
Thomson (Maitland Club, 1845), iii, 938, where King James told the Assembly that a
committee had been appointed.
Goodare, 'The Scottish witchcraft panic of 1597', 66-8. For an alternative view of
James's attitude, see J. Wormald, 'The witches, the devil, and the king', in T.
Brotherstone and D. Ditchburn (eds.), Freedom and Authority: Scotland c. 1050 - c. 1650
(East Linton, 2000), 177-80. Stuart Clark also thought that James became more
sceptical regarding witchcraft accusations before he left for England in 1603: S. Clark,
'King James's Daemonologie. Witchcraft and kingship', in S. Anglo (ed.), The Damned
Art: Essays in the Literature of Witchcraft (London and Boston, 1977), 161-7.
24 BUK, in, 937.

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THE PRIVY COUNCIL AND THE WITCHES 25

Although the debate sparked by the hunt was suppressed, it did initiate a
new regime of restricted witch-hunting. The hunt ended in November
1597 and it was resolved on the part of many, but not all, people in posi
tions of authority to adopt a more critical attitude towards the evidence
needed to condemn a witch, and to provide a greater centralised over
sight to the whole witch-hunting process.
It was the question of evidence that had been raised most forcefully by
Margaret Aitken's progress. How could presumably rational people have
believed that she could identify witches by looking in their eyes, and
even if they did accept this as a fact, how could they have trusted her to
be honest concerning those whom she accused? King James's
Daemonologie, published in the very year of the witch-hunt, helps provide
answers. James was well aware of the difficulty of proof, and the need to
avoid convicting the innocent: 'For it is as great a crime (as Salomon
sayeth) To condemne the innocent, as to let the guiltie escape free.'25
His solution was to trust in the justice of God, who would ensure that the
guilty were convicted and the innocent spared. Thus, not only did he
advocate pricking a witch to find the devil's mark, and floating a witch in
the water,26 he also asserted that the devil could not borrow the shape of
an innocent person, for 'God will not permit that any innocent persons
shalbe slandered with that vile defection: for then the deuil would find
waies anew, to calumniate the best'.27
What James was arguing was that normally suspect evidence could be
trusted in witchcraft cases because God actively intervened to ensure its
reliability. C. R. Unsworth points out that traditional witchcraft detec
tion methods such as swimming the witch were a return to the concepts
of the medieval trial by ordeal - a direct appeal to the verdict of God.28
This helps explain why so many people believed Margaret Aitken when
she claimed to be able to detect witches by looking into their eyes, and
why there was such a strong reaction when she was shown to be a charla
tan. They thought that they saw God's providence working, only to be
proved wrong.
After 1597, two of the methods used to identify witches - gazing into
her eyes and swimming her - were abandoned.29 Pricking the witch
managed to survive, but as we shall see, many privy councillors adopted a
much more critical attitude towards evidence. This was inspired partly
King James VI, Daemonologie, in Forme of a Dialogue, Diuided into Three Bookes, reprinted
in Minor Prose Works ofKingJames VIand I, ed. J. Craigie (Scottish Text Soc, 1982), 54.
26 Ibid., 56.
27 Ibid., 55.
C. R. Unsworth, 'Witchcraft beliefs and criminal procedure in early modern England',
in T. G. Watkins (ed.), Legal Record and Historical Reality. Proceedings of the Eighth British
Legal History Conference, Cardiff, 1987 (London, 1989), 96-7.
For swimming the witch, see Larner, Enemies of God, 109-10. The only possibly authen
tic record of this in Scotland was in 1597, the same year in which James VI had recom
mended it. The feminine pronoun has been adopted out of convenience and because
most accused witches were female.

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26 MICHAEL WASSER

by a suspicion of vague and imprecise evidence, and partly by a sensiti

to the ease with which malicious prosecutions could be brought. It w
this critical spirit, above all, that contributed to the thirty-one year
before the next national witch-hunt.
This attitude was enforced by a greater centralisation of procedur
Centralisation is an important theme in recent research on ear
modern Scotland. Michael Lynch and Julian Goodare, in particul
have discussed ways in which Scotland was being transformed from
feudal monarchy to a sovereign state, a process which entailed
increase in bureaucratic procedures and control from the centre
Other research has dealt with this issue in the context of implemen
the criminal law.31 'Centralisation' is here taken to mean the enfor
ment of royal authority on local communities and local elites. The la
1590s was an important period in this process. Success in suppressin
bloodfeuds began with the 1598 act against feuds.32 Royal control w
reasserted in the West March from 1597-1603, leading to the borde
commissions that began in 1603.33 A series of initiatives in the Hebr
and Western Highlands beginning in 1596 led to a growing integrat
of clan elites into Lowland Scottish society, together with a grea
dependence on the crown.34 The Edinburgh riot of 17 December 159
reaffirmed King James and many of his advisors in their determina
to gain greater control over the kirk. This eventually led to the imp
tion of episcopacy upon the kirk, and an accompanying royal contr
over individual ministers.35 Central control could be exercised by t
king himself, by the Privy Council, or by the various courts residing
Edinburgh.
However, centralisation was an uneven process, sometimes resisted
and not always pursued in a consistent fashion. The Privy Council order
of 12 August 1597, which was the beginning of the end for the
witch-hunt, shows some of these ambiguities. Although it revoked com
missions given to less than three people, it did not revoke general com
missions as a whole. Did this mean that local authorities could still
proceed without reference to the king or council? Julian Goodare has
shown that Aberdeen continued to try witches in the autumn of 1597
and revived prosecutions under its general commission in 1599.36
J. Goodare, State and Sodety in Early Modern Scotland (Oxford, 1999) ; J. Goodare and M.
Lynch (eds.), The Reign ojJames VI (East Linton, 2000).
M.Wasser, 'Violence and the central criminal courts in Scotland, 1603-1638' (PhD
Thesis, Columbia University, 1995).
K. Brown, Bloodfeud in Scotland, 1573-1625: Violence, Justice and Politics in an Early
Modern Sodety (Edinburgh, 1986), 241-6.
33 M.Wasser, 'The pacification of the Scottish Borders, 1598-1612' (MA Thesis, McGill
University, 1986), 10-46.
M. Lynch, James VI and the "Highland problem" ', in Goodare and Lynch, Reign of
James VI, 208-27.
Goodare, State and Sodety , ch. 6, especially 196-7, and A. R. MacDonald, The Jacobean
Kirk,1567-1625: Soverdgnty, Polity, and Liturgy (Aldershot, 1998).
Goodare, 'The Aberdeenshire witchcraft panic of 1597', 33-4. The commission was to
last for five years, 1597-1602. Ibid., 24.

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THE PRIVY COUNCIL AND THE WITCHES 27

However, the order also included a clause saying that all legitimate com
missioners must nevertheless present their evidence to the king within
fifteen days of obtaining it before proceeding further. If they did not,
they would forfeit the goods of any witches whom they executed, and
would be liable to punishment themselves.37 This seems like an attempt
to impose central control on a general commission. In the case of special
commissions, where the witches were already known, the king or council
could demand to see the evidence before granting the commission, but
in a general commission it was possible to try people who were not
suspect when the commission was granted. This indirect attempt at
control (why not simply discontinue general commissions?), coupled to
the attempt to continue the hunt, suggests that the 'central authorities'
were not united on this issue: there was evidently quarreling at the top.38
Restricting witch-hunting was not an easy task in a godly, witch-fearing
society because two imperatives were simultaneously at work - to convict
the guilty and to preserve the innocent. There would always be those
who wished to emphasise the former more than the latter. Maintaining
restrictions in the period 1597-1628 would not be easy.

The lull in witch-hunting that occurred between 1597 and 1628 can be
statistically delineated. There were ten trials before the Justice Court,
featuring ten accused witches. Eight were convicted; for the other two,
the trial was discontinued.39 The number of witches tried via a Privy
Council commission was more numerous. Prior to 1607 only a few scat
tered commissions survive in private or local records.40 In September
1607 the council began to keep a register of commissions; from then to
August 1628, it issued seventy-eight witchcraft commissions, seventy-one
to try witches, and seven to examine them.41 A total of 148 witches were

3 RPC, 1st ser., v, 410. It is unknown if this provision was actually followed.
38 Goodare, 'The Scottish witchcraft panic of 1597', 60-3.
The records of the Justice Court are complete for this period: see National Archives
of Scotland [NAS], High Court of Justiciary, books of adjournal, old series, JC2/
3 to JC2/6. Most of the witchcraft trials have been printed in Criminal Trials
in Scotland from 1488 to 1624, ed. R. Pitcairn (Edinburgh, 1833) [Pitcairn, Trials].
Christina Larner's Source-Book has been used as a guide (C. Larner, C. H. Lee, and
H.V. McLachlan, A Source-Book of Scottish Witchcraft (Glasgow, 1977)), but witches
who were only mentioned in the trials or process papers have been excluded.
Trials from sources that cannot be confirmed in the Justice Court records have
been discarded (there were three, one of which was probably a variant spelling
of a trial already included), and one trial was found that was not in the Source-Book.
The trial from November 1597 has been considered to be part of the 1597 witch-hunt,
and the trials for the Erskine poisoning case in 1613 and 1614 featured consulting
40 with witches, but not witchcraft itself, and so have not been included.
See, e.g., Fraser, Grant, iii, 198-9. It is dated 28 June 1602 and was a general commis
sion (unlike those registered after 1607) issued by the king personally and two others.
I would like to thank Dr Julian Goodare for bringing this to my attention.
Apprehending and examining witches was often added to the seventy-one commis
sions authorising trials.

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28 MICHAEL WASSER

to be tried.42 These records are more limited than the Justice Court
records - details of the trial, including the fate of the accused, are not
included. These statistics are not perfect. Two commissions fail to nam
the witches to be tried: it is not clear if these were general commission
or if the names were simply not transcribed.43 If they were 'general', they
were the only ones of the seventy-one commissions for trying witche
that were open-ended. However, the statistics are adequate to give us an
idea of the intensity of witch-hunting. The Justice Court and Privy
Council commissions together tried at least 158 witches in thirty-one
years. This does not include witches from the few commissions survivin
in private archives before 1607, nor a possibly 'illegal' trial from the
regality of Brechin, and the exceptional Geillis Johnstone case.44 Nor
does it include the sole exception to centralised control, Orkney an
Shetland, where twenty-two witches were tried in the local sheriff cour
between 1597 and 1628. This is probably connected to the separate lega
system that had existed in these islands. This subject needs a separate
study and these locally tried witches have not been considered here.45
Despite these caveats, the contrast with the c.400 witches involved in th
1597 hunt, and the c.331 witches for the two years from August 1628 t
August 1630 is huge.46
The 1597-1628 period can be subdivided into smaller time units.
Until he left for England in 1603, King James continued to play a role
granting commissions; after this it was entirely in the hands of the privy
councillors. In 1607 the council began to keep a register of commissions
and in 1611 a small change in procedure, to be discussed below, encour
aged a shift from Justice Court trials back to commissions. In the 1620s
and especially after the death of the earl of Dunfermline (Chancellor of
Scotland, and an opponent of witch-hunting) in 1622, the number of
commissions granted began to increase, leading up to the nex
witch-hunt in 1628.

This is based on an examination of RPC, 1st ser., vi, to RPC, 2nd ser., ii. Once again
Larner's Source-Book has been used as a guide. A further two commissions named thr
people who were to be tried for charming only, not witchcraft.
RPC, 1st ser., x, 231, 327. These commissions were arbitrarily counted as two witche
each. The second one seems to be a replacement for the first.
It is impossible to estimate the number of witches tried by commissions from 1597
1607 because the only commissions known appear to be general commissions, or they
are merely mentioned in passing. For the Brechin trial, see RPC, 1st ser., xiv, 605; fo
Geillis Johnstone, see NAS, High Court of Justiciary, court books, old series, regality of
Dunfermline,JCl/38. The latter will be examined in the case study below. Goodare lists a
few other possible trials in this period in 'Witch-hunting and the Scottish state', 129-30.
'Acts and Statutes of the Lawting, Sheriff and Justice Courts, within Orkney an
Zetland, from the Year MDCII to the year MDCXLIV', Maitland Misc., ii, 167, 187
Larner, Source-Book, 175-84. The Privy Council may have been supervising these tria
in some other fashion, since two of them appear in the miscellaneous papers of th
council. RPC, 2nd ser., viii, 355-64. They were however clearly tried by the Orkney
Sheriff Court, and not by a commission.
46 For 1628-30, see Larner, Source-Book, 11-12 and 79-105, 185-6, nos. 139-150
1087-1388, and 2376-2394. These references include witches scheduled to be trie
and those merely mentioned in the course of proceedings. A few names may appear
more than once.

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THE PRIVY COUNCIL AND THE WITCHES 29

From 1597 to 1603, when the king was still in Scotland, there were no
trials before the Justice Court, and apparently few commissions.
However, the king did issue at least one 'general' commission in 1602.47
It extended to all people suspected of witchcraft and living on the lands
of John Grant of Freuchie. No one was named and we do not know if
anyone was tried. Amazingly, there was no termination date for the com
mission, and it violated the provisions of the Privy Council order of 12
August 1597 by making the grant 'conjointly and severally', thereby
allowing one or two people to conduct the trial (s). This reflects King
James's lack of sympathy with the procedural niceties of lawyers and his
preference for 'the traditional order', with its stress on personal relation
ships.48 Once James was gone, the Privy Council began to put its own
imprint on the 'witchcraft problem'. As a prelude to examining th
council's actions, it will be useful to discuss what the council was and wh
the councillors were.49
The Privy Council was the political and administrative head of the
nation. It consisted of the officers of state, such as the Chancellor and
Lord Advocate, together with other men whom the king, Parliament, or
Convention of Estates chose to appoint. Its business was divided int
public and private realms. Public business included a supervisory
responsibility for law and order; the authority to grant judicial commis
sions came under this category. In our period, the council underwent
major overhauls in membership in 1598, 1610, and 1626.50 Its member
ship varied from cthirty-one to eighty.51 Its effective membership - th
councillors who routinely carried on its business -was much smaller. For
example, attendance at meetings in the period 1610-13 could range
from eight to twenty-two. The core attenders were the officers of state,
the judges, and as the period progressed, the bishops.
The most important councillor in our period was Alexander Seton,
Earl of Dunfermline.52 He had been the head of the Octavians, a group
of eight men granted extraordinary powers by King James between
January 1596 and January 1597, and continued to be important after
they were disbanded. In March 1605 he was appointed Chancellor.
Dunfermline was also the most respected lawyer in Scotland. He was
47 Fraser, Grant, iii, 198-9.
48 RPC, 1st ser., v, 409-10; J. Wormald, Court, Kirk and Community: Scotland 1470-1625
(London, 1981), 155-6.
This discussion is largely based on the various introductions to the RPC; M. Lee, Gov
ernment by Pen: Scotland under James Viand I (Urbana, IL, 1980) ; M. Lee, The Road to Rev
olution: Scotland under Charles I (Urbana, IL, 1985); and W. Taylor, 'The Scottish Privy
Council 1603-1625: Its composition and its work' (PhD Thesis, University of Edin
burgh, 1950).
50 RPC, 1st ser., v, pp. lxxxi, 499-500; viii, pp. xii-xiii, 815, 616-17, 413-14; 2nd ser., i, pp.
lxix-liv, 248-52.
Taylor, 'The Scottish Privy Council', 8.
For Dunfermline's career, see M. Lee, 'Kingjames's popish Chancellor' in I. B. Cowan
and D. Shaw (eds.), The Renaissance and Reformation in Scotland (Edinburgh, 1983),
170-82, and Lee, Government by Pen. Dunfermline was a younger son of Lord Seton. He
rose to wealth and power through the law and service to the crown.

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30 MICHAEL WASSER

president of the Court of Session from 1593 until his appointment

Chancellor in 1605, and showed a decided preference for bringing h
fellow judges into the council. There were fourteen ordinary judges
the Court of Session, together with its president and four or five extraor
dinary judges.53 Their jurisdiction was strictly civil, but their earlier trai
ing usually included criminal law. Of the forty-six ordinary judges w
served during the period 1603-25, all were privy councillors at som
point, and twelve were officers of state.54 When Charles I succeede
1625 he objected to this overlap and insisted that membership on th
session and the Privy Council should be mutually exclusive. Con
quently seven judges gave up their position on the session to remain
the council, while eight left the council to remain on the session.55 F
most of our period, therefore, the council had a strong professio
legal component which was reduced at the very end.
The council took its decisions collectively, discussing and voting o
issues where there was a division of opinion. These discussions and vo
were not recorded in the official registers but are occasionally m
tioned in notes taken by Lord Advocate Hamilton (later first ear
Haddington).56 While we can refer to the 'Privy Council's action
because these were unitary, we must remember that each councillor w
an individual whose opinions could vary to a greater or lesser degre
from his fellows. There was certainly a spectrum of opinion on
subject of witches. While there is only a little evidence for how individua
councillors thought, this is enough to show that some were more ca
tious than others. Dunfermline himself had a critical attitude towa
witchcraft accusations which will be examined below in the case stu
Three other core councillors, Archbishop Spottiswood, the earl of M
and Lord Advocate Hamilton, have left statements showing a cautiou
attitude towards witch-hunting. Spottiswood's ecclesiastical history t
the story of Margaret Aitken, with its condemnation of credulo
witch-hunters.57 John Erskine, Earl of Mar, in a letter to Visco
Cranborne, described both hunting and the examination of witches
'uncertain sports' and expressed a decided preference for hunting.5
Hamilton's opinions are the most extensively recorded. He was Lor
Advocate from 1596 to 1612, and Secretary after that. Like Dunfermli
Taylor, 'The Scottish Privy Council', 37; G. Brun ton and D. Haig, An Historical Acco
of the Senators of the College of Justice from its Institution in M.D. XXXII (Edinburgh, 1
pp. xxxii-xxxiii.
54 Taylor, 'The Scottish Privy Council', 37.
55 Lee, Road to Revolution, 17-20, 22-24; RPC, 2nd ser., i, pp. lii-liii.
See RPC, 1st ser., xiv, 613-14, 621, for examples of divided voting on questions co
cerning witchcraft. Both come from Lord Advocate Hamilton's private papers, wh
the editors of the RPC sometimes included in its pages. For Hamilton, see W. Fras
Memorials of the Earls of Haddington, i, 34-188.
Spottiswood, History, iii, 66-67.
John Erskine, Earl of Mar to Robert Cecil, Viscount Cranborne, 26 Jan. 1605, Historic
Manuscripts Commission, Marquess of Salisbury, xviii, 37. Mar was also a courtier w
divided his time between England and Scodand. The reference is to an English exa
nation, but Mar was an active Scottish councillor and in 1616 became Treasure
Scotiand.

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THE PRIVY COUNCIL AND THE WITCHES 31

he served as president of the Court of Session. Unlike Dunfermline, his

papers have survived. He expressed strong opinions regarding the
excesses of 1597 and against an uncritical acceptance of witchcraft accu
sations.59 Although he usually conducted prosecutions in person while
Lord Advocate, he almost always left witchcraft prosecutions to his col
leagues or subordinates.60 At the other end of the spectrum were many
of the bishops. Hamilton identifies them, and especially David Lindsay,
Bishop of Ross, as arguing within the council for a relaxation of the rules
to facilitate witchcraft prosecutions. Also, George Gledstanes, Arch
bishop of St Andrews, used the Synod of Fife, where he was constant
moderator, to pursue witches within his diocese.61
Once the council was fully in control it initiated policies that tended
towards greater centralisation, and which showed a greater concern for
credible evidence and proper procedure. 'General' commissions were
abandoned, and from 1603 to 1611 the council tried to channel prosecu
tions into the Justice Court. Running parallel to this was a jurisdictional
struggle between church and state over moral offences that had been
criminalised.
The Justice Court was the senior criminal court in Scotland, located
in Edinburgh and trying serious capital crimes such as treason, murder
and witchcraft.62 Its judge, the Justice Depute, was usually a trained
lawyer, but junior to the judges on the Court of Session. At this time, the
Justice Depute was Sir William Hart, who had formerly shared the posi
tion of Lord Advocate with Hamilton.63 The Justice Depute, however, did
not travel on 'ayre' into the localities, as he was ideally supposed to. The
judicial commissions issued by the Privy Council compensated for this,
allowing serious or complicated crimes to be tried locally by specially
chosen commissioners. Unfortunately the commissioners were local
elites such as lairds or bailies of burghs who did not have the same level
of legal training as the judges and lawyers based in Edinburgh. There
fore the choice between forcing a crime to be tried in Edinburgh, or
allowing it to be tried by a commission in the locality, featured a 'trade
off between central control and accessibility. A trial in Edinburgh pro
vided more central control and legal expertise. This was particularly
true because the Justice Depute, while nominally independent, was in
reality subject to supervision by the Privy Council. For example, when it
59 RPC, 1st ser., xiv, 613-14, 621.
There were twelve prosecutions for witchcraft before the Justice Court while Hamil
ton was Lord Advocate ( 1596-1612), of which he prosecuted only one. See NAS, JC2/
3 and JC2/4, and Pitcairn, Trials. Pitcairn's index and Christina Larner's Source-Book
were used to identify prosecutions.
61 Synod of Fife, 61, 71, 75, 76, 79.
For an overview of the Scottish court system, with an emphasis on the local courts, see
S. Davies, 'The courts and the Scottish legal system, 1600-1747: The case of
Stirlingshire', in V. A. C. Gatrell, B. Lenman and G. Parker (eds.), Crime and the Law:
The Sodal History of Crime in Western Europe since 1500 (London, 1980), 120-54. For the
Justice Court and the Privy Council, see Wasser, 'Violence and the central criminal
courts', ch. 2.
G. Omond, The Lord Advocates of Scotland (Edinburgh, 1883), i, 67-8.

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32 MICHAEL WASSER

saw fit, the council could appoint 'assessors' to the Justice Depute to
advise him on difficult matters. These assessors were drawn from t
more senior session judges.64 When a trial was held in Edinburgh, it w
also easier for an accused witch to get a lawyer to defend her. A trial
the locality was easier because prosecutors, defendants and witnesses
not have to lose time and money going to Edinburgh, but the comm
sioners had less training and were freer to act as they wished. Therefo
the process of controlling witchcraft trials through commissions, as h
pened from 1611 to 1628, was only a 'second best' option. It was u
because the attempt to concentrate witchcraft trials in the Justice Co
failed.
The wider context is shown by a number of laws passed by Parliament
in 1587 as part of an earlier 'centralisation' drive. One law, entitled 'For
ye furtherance and furthsetting of ye criminal justice ower all ye
Realme', tried to re-establish an effective system of Justice Ayres in the
localities.65 Another law forbade commissions to be granted for trying
murder - this crime was to be reserved for the Justice General and his
deputes, who were to operate both the Justice Court and the ayres.66 But
Parliament's plans for Justices Ayres failed and demand for homicide
commissions was so high that the law was ignored.67 As with witchcraft,
this shows a tension between reserving serious crimes for more experi
enced judges, and making justice accessible to those who needed it.
Another issue affecting witchcraft prosecutions was overlapping juris
dictions between secular and ecclesiastical authorities. Moral crimes
such as adultery, incest and witchcraft had both a secular and religious
component, because after the Reformation, Parliament had passed stat
utes making them punishable by death.68 The first decade of the seven
teenth century saw the Privy Council assert the primacy of the secular
courts over these crimes.69 The normal venue for capital crimes of this
serious nature was the Justice Court.
Evidence for the channelling of witchcraft cases to the Justice Court is
both statistical and qualitative. Statistically, there were no commissions
issued from 1607, when the register began, until 11 June 1611. However,
eight of the ten Justice Court trials occurred between 1603 and 1611.
Qualitative evidence is preserved in the Privy Council's records, and the
notes kept by Lord Advocate Hamilton. In 1605 Patrick Lowrie appealed
to the council against attempts to try him locally. The council suspended
a witchcraft commission that had been granted to his master, William
Cunningham of Caprington, and Lowrie, at his own request, was tried in
64
See, e.g., the trial of Margaret Wallace in 1622: Pitcairn, Trials, iii, 508.
65 APS, iii, 458-60.
Ibid., 457. The Justice General was the nominal judge of the Justice Court, but since
the position was held hereditarily by the earls of Argyll, who were not prepared to
serve in person, their deputies, the Justice Deputes, sat in for them.
E.g., in 1610 the Privy Council gave out eight commissions to deal with various forms
of homicide. RPC, 1st ser., viii, 399-400, 458, 461, 472, and ix, 13-15, 54, 71.
68 APS, ii, 539 (both adultery and witchcraft), and iii, 25-6 (incest).
Goodare, State and Sodety, ch. 6, especially 189-90.

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THE PRIVY COUNCIL AND THE WITCHES 33

the Justice Court.70 A similar case occurred the next year when Issob
Falconner objected to being tried by the sheriff-depute of Berwick.7
this instance, the accused witch claimed that this local judge was not
'that aige and experience to cognosce upoun sa heich a cryme'. M
over, the jurors, she claimed, would be

a company of unlearned and simple men, quha ar of the opinioun that t

simple name of a witche is sufficient to convict any persone of witchecra
and nouthir knaw thay the proper definitioun of witchecraft, and quh
may infer sic a cryme aganis ony persone, nor vit have they the knawlege
judge upoun sic reasonis and argumentis as ar proponit in the defence o
a pairty challengit of sic a cryme. 2

To escape such dangerous ignorance, she volunteered to be tried in t

Justice Court in Edinburgh. The council heeded her arguments and
charged the local trial. Issobell was lucky: she was never tried.73
In 1609 we have evidence that people in the localities were becom
frustrated with the difficulties of trying witches, and that some on
Privy Council - especially the bishops - sympathised with them. On
July 1609 the Privy Council quashed an illegal trial against Geillis Joh
stone before the Presbytery of Dalkeith that had been sparked partly
the local community, and partly by the ministers of the Presbytery. Thi
will be discussed at greater length below in the case study. Then, on
December 1609, Lord Advocate Hamilton recorded that the coun
refused to grant a witchcraft commission to the Earl Marischal, and
also recorded the debate among the councillors.74 He identified
bischopes' as taking the lead in arguing, not just for this commission,
for a general policy of granting 'sic commissionis ... in diverse pairti
the cuntray'. They argued that currently

pairties gr?vet wald get na justice in the cuntray quhair thay duelt, bot w
forced to cum to Edinburgh befoir the Justice Generall, thay be
unhabill for laik of expenssis, and the drawing of the pairties and assysair
thair being so difficile that the persute wald rather be left of nor sic trub
undertane.75

This meant that many witches were going unpunished.

WTiat convinced the council as a whole to refuse the commission were
arguments reminding them of the 'exceiding great sclander' that
resulted from abuse of commissions in the 1597 witch-hunt. In particu
lar, the progress of Margaret Aitken was alluded to, how she had been
70 RPC, 1st
71 ser.,' vii,
j 67,
j j74;jPitcairn, Trials, ii, 477-9.
RPC, 1st ser., vii, 238-9. He might have been tryin
depute, as suggested by Goodare ('Witch-huntin
might have had an unmentioned commission.
72 Ibid., 239.
No Justice Court trial was forthcoming. In 162
examine witches, but was not tried. RPC, 1st ser
74 RPC, 1st ser., xiv, 613-14.
75 Ibid., 614.

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34 MICHAEL WASSER

dragged from kirk to kirk and used to convict innocent people. Hami
ton's use of the plural ('professed sorcereris') suggests that there migh
have been other witches besides Aitken used in this manner. However
the council did not categorically state that all commissions would be
refused. It would grant commissions for two reasons: first, if 'the pairt
wer fugitive' - that is to say, if she had not shown up for a scheduled trial;
and second, if 'the particular dilatioun wer schawin to the Counsall an
fund sufficient to move thame to grant commissioun'. This insistence o
seeing 'the particular dilatioun' suggests a bias against the open-ended
'general' commissions in favour of more easily controlled 'special' com
missions. It also gave the bishops their opportunity to switch the counc
to a policy of granting special commissions.
A year and a half later, Alexander, Bishop of Moray, stage-managed
process which saw the first commission granted. Together with th
brethren of the Presbytery of Elgin, he examined two accused witches
Moray, and became convinced of their guilt. He then brought a certif
cate of the examination to show to the Privy Council, and asked for
commission against the witches to be issued for himself and five loca
lairds.76 This avoided the errors of 1609 in two ways. Unlike the Presb
tery of Dalkeith, that of Elgin did not seek illegally to try the witches, bu
merely examined them. Unlike the Earl Marischal, Moray was able
present sufficient evidence against specific witches to convince th
council to grant a commission.
A debate emerged nonetheless over one provision in the commi
sion: the right given to apprehend the accused witches and imprison
them prior to trial.77 This violated normal Scottish practice, whe
people could only be arrested if they were taken red-handed in the a
of committing the crime, or if they were declared an outlaw for disob
ing a summons to their trial. Once again, the debate was betwe
Hamilton and a bishop, David Lindsay, Bishop of Ross. Ross claime
that the witches would flee 'if thay wer summond befoir thay wer ta?e
Hamilton replied that this could apply to any accused criminal, an
even for accused witches, 'thair libertie wes thair birth right' of whic
they could not be deprived arbitrarily. However, he was over-ruled. Th
general commissions of 1597 had also included a right of arrest, so th
was a partial return to those methods.78 In addition to preventing fligh
arresting a witch prior to trial meant that sleep deprivation or ev
illegal torture could be used against her. Judicial torture, after a perio
in the 1590s when the central authorities actively encouraged it, was
discouraged and disallowed by the Privy Council, but could be us
illegally in the localities.79 Sleep deprivation, whose legal status
was more obscure, does appear to have been commonly used
76 RPC, 1st ser., ix, 191.
77
78
RPC, 1st ser., xiv, 621.
W. Fraser, The Elphinstone Family Book, ii, 136.
For a discussion of torture, see MacDonald, Witches of Fife, ch. 8; Levack, 'The decli
and end of Scottish witch-hunting', 173-7.

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THE PRIVY COUNCIL AND THE WITCHES 35

Scotland,80 and the right of arrest included in commissions may have

encouraged this. It is certain that confinement to a specific space i
necessary in order obtain the control needed to deprive someone of
sleep.
One caveat needs to be made concerning this debate. Most of our evi
dence comes from the pen of Hamilton, who sets up an opposition
between lay councillors (and especially lawyers like himself) and the
bishops. While this is true in a general sense, there were exceptions.
Archbishop Spottiswood was one bishop working for more restrictions
in witch trials, while one lawyer, James Elphinstone, Lord Balmerino,
co-signed the 1602 general commission with King James.81 People are
individuals, and do not always conform in a mechanistic fashion to ste
reotypes based on their place in society.
For the period 1611 to 1628, prosecutions before the Justice Court
almost disappeared while Privy Council commissions proliferated.
From June 1611 until Dunfermline's death in June 1622 the council
issued thirty-seven witchcraft commissions which were scheduled to try
sixty-one witches. This was 3.4 commissions and 5.5 witches per year.
After Dunfermline's death, leading up to the beginning of the
witch-hunt in August 1628, there were thirty-four commissions issued to
try eighty-seven witches; 5.7 commissions and 14.5 witches per year.
However, the council did not abandon its attempts to control
witch-hunting. Instead, this was now done through screening requests
for commissions.
Screening requests was done by demanding confessions, witnesses, or
strong circumstantial evidence before issuing a commission. For
example, on 30 January 1621 the council issued a commission to try
Margaret Donaldson in Inverkeithing for witchcraft, citing 'mony preg
nant presumptionis and evidences' (strong circumstantial evidence) as
their justification.82 On 13 February a commission was issued to try five
more women in Inverkeithing who had confessed, but a sixth, who had
been implicated by the first five, was not to be tried - instead, she was to
be further examined and the results of her examination were to be
reported back to the Privy Council. It was only after she confessed that a
commission was issued to try this sixth woman.83
Unfortunately a more precise discussion of the evidence, especially
what would constitute 'pregnant presumptions' is usually not forthcom
ing. An exception occurred in 1611 when Lord Advocate Hamilton
wrote that he would accept only specific actions such as 'raising deid
bodies and cutting af thair joyntis, or dansing in any desrt kirk at mid
night, or committing any sik fact as wes ane externall indice of thair
witchecraft'.84 The examples that Hamilton chose were drawn from the
80 Larner, Enemies of God, 107-9. See also MacDonald, The Witches of Fife, 133-8.
Fraser, Grant, iii, 199. He signed as J. secretaries'.
82 RPC, 1st ser., xii, 412.
83 Ibid., 423, 425-6.
84 RPC, 1st sen, xiv, 621.

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36 MICHAEL WASSER

North Berwick witchcraft trials of 1590-1.85 Since he was focusing

actions that formed 'externall indices of thair witchecraft', presuma
he was excluding the imprecise link between malice expressed and h
experienced that formed the staple of most peasant accusations of w
craft.86 However, other councillors may have been less strict in th
requirements.
There are a number of instances where the records show scepticis
on the part of the councillors towards the evidence presented to the
For example, on 2 December 1612 a commission was granted to s
East Lothian gentlemen and to the provost and baillies of Dunba
examine (but not to try) five suspected witches. Was the initial evide
presented insufficient? No commission to try these witches was ev
issued. On 10 December 1624 the council passed an act requiring tha
all requests for a commission must first be screened by the bishop of
diocese from which the request originated.87 The reason given was t
the council had 'bene verie oft troubled be the importunitie of the
who soght the saidis commissionis' and who claimed that all the supp
ing evidence 'given in aganis the said suspect personis wer trew'. T
council, on the other hand, found that the evidence tended to be 'v
obscure and dark'. It is not clear to what extent this screening proc
functioned - perhaps the death of King James four months later in
rupted it.88 The only bishop mentioned as screening depositions wa
John Spottiswood, Archbishop of St Andrews.89 Neglect by the bisho
Aberdeen is implied, because on 14 December 1626 a commission
issued in his jurisdiction to examine, but not to try, nineteen people
witchcraft. Only three were later named in a commission that author
people to be tried.90 In another commission limited to examination
was specified that the written depositions of the alleged witch had t
submitted to the Privy Council before any further procedure would
authorised.91 There are a couple of instances where local questionin
witches has been preserved in the miscellaneous papers of the Pr
Council, showing the type of documents the council was using to m
its judgements.92
The council also sometimes heard appeals from accused witches. O
10 July 1628 Alesoun Dempstar complained that she was being held
gaol on malicious charges of witchcraft, and the council ordered he
be freed.93 On 6 December 1627 the council discharged a commis

See Newes from Scotland, reprinted in Pitcairn, Trials, i, 212-23, especially at 217
and also item 50 in Agnes Sampson's indictment, ibid., 239-40.
86 Briggs, Witches and Ndghbors, 63-76, 93-5.
87 RPC, 1st ser., xiii, 620.
In the first year following the decree there was only one commission granted. T
they began to increase again.
89 RPC, 2nd ser., i, 309, 425, 447-8, 453, 596, 607; ii, 317.
RPC, 2nd ser., i, 469, 500, 586. The bishop was not included in this process.
91 RPC, 2nd ser., ii, 122.
92 RPC, 2nd ser., viii, 345-7, 352-4.
93 RPC, 2nd ser., ii, 362.

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THE PRIVY COUNCIL AND THE WITCHES 37

against Katherine Crystie when she complained about the baseless

malice behind it. It ruled that she could only be tried by the Justice
Court.94 Sometimes the council used its own initiative to control local
actions. On 6 May 1627 it wrote to the bishop of Aberdeen, telling him
that the Presbytery of Turriff had not followed proper legal forms in
examining two witches, and gently reminding him that this had to be
done before the commission to try them -which had already been issued
- would become effective. It is interesting that, although the bishop was
not named in the commission, he was responsible for giving it to the
commissioners and could withhold it if he had doubts about the validity
of the accusations.95
How often did the Privy Council turn down requests for commissions?
This is impossible to document because the register of commissions was
set up to record commissions granted, and no record was kept of
requests refused. However, miscellaneous sources do show us two
instances where commissions were refused. The first, already men
tioned, was the 12 December 1609 request by the Earl Marischal.96 The
second, preserved in the miscellaneous papers of the council, was in
C.1624, when a petition for a commission mentioned that a previous
request had been refused.97 There is also indirect evidence of refusals.
On 30 July 1628 there is a notice of a request for a commission against
Bessie Wright in Perth, yet no record of such a commission exists.98 On 4
May 1614 the Synod of Fife recorded its intention to ask the council for a
commission against Agnes Anstruther, yet there is no record of it being
granted.99 The council's miscellaneous papers contain records of an
investigation against Jonet Andirsone, but no commission was issued
against her.100 As seen above, a commission previously granted against
Katherine Crystie was revoked on appeal.101 Instances where the council
gave commissions to examine witches but no trial resulted, may also be
seen as refusals. This evidence of refusing requests needs to be read in
the light of the evidence presented above showing how the Privy Council
was screening requests for commissions and entertaining appeals from
accused witches. WTiile we cannot measure local demand or determine
the number of requests refused, clearly the Privy Council was suppress
ing local demand to some degree, even after 1611.

WTiile the Privy Council's records allow us to see the 'big picture' con
cerning centralisation and standards of evidence, their limited nature
94 RPC, 2nd ser., ii, 142-3.
95 RPC, 2nd ser., i, 600, 586. The commission was dated 25 Apr. 1627.
96 RPC, 1st ser., xiv, 613-14.
97
Ibid., 590. The initial refusal was not recorded. This second request may have been
turned down as well.
98 RPC, 2nd ser., ii, 623-4.
Synod of Fife, 76.
100 RPC, 2nd ser., viii, 345-7.
101 RPC, 2nd ser., ii, 142-43.

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38 MICHAEL WASSER

prevents us from studying individual cases in depth. However, sur

trial records, when combined with the council's records, can pro
short case study of one specific witch, Geillisjohnstone. She was
twice, in 1609 and 1614, and managed to survive.102 Her experie
illustrate the dangers facing an accused witch in her community
how the attitudes and actions of the Privy Council restricted 'un
ranted' witch-hunting through the imposition of central contro
high standards of evidence.
Geillisjohnstone was the widow of a burgess of Musselburgh, a
close to Edinburgh. Musselburgh formed part of the parish of Inv
which in turn was part of the Presbytery of Dalkeith. The thirteen to
teen ministers of the presbytery were pursuing a conscious 'godly'
of enforcing the moral imperative of God's Word.103 Sometimes
brought them into conflict with the secular, centralising policies
Privy Council. For example, in 1605 Robert Douglas complained t
council that the presbytery was trying him for adultery, which
capital crime over which it had no jurisdiction. After listening to the
bytery's arguments, the council ruled that it should confine its pro
the 'sclander' (i.e., scandal) and not convict him of adultery.104
The presbytery was also concerned with witchcraft. In 1607 it sc
coup by co-operating with the Justice Depute in the trial of
Petersone. A series of presbytery investigations culminated in qu
ing by the Justice Depute on 10 December 1607 and a trial on 18 D
ber.105 This success encouraged more investigations, and by early
the presbytery was actively pursuing three accused witches:
Drysdaill, 'IrishJonet', and Geillisjohnstone.106 Drysdaill was def
by her master, James Newton, and was never tried.107 Irish Jonet
ently escaped and was never tried.108 But Geillisjohnstone was a
nent member of her community and could not escape: she had to
down her accusers.
Accusations were brought against Geillis by her late son's in-law
Vernors. Her family was quarreling with theirs over payment of
102
RPC, 1st ser.,viii, 328-9; xiv, 612, NAS, JC1/38. A transcript of the 1614 trial will be
published with an introduction: 'The trial of Geillis Johnstone for witchcraft, 1614',
ed. M. Wasser and L. A. Yeoman, in Scottish History Society Miscellany XIII (
forthcoming).
For a thorough exploration of this, see M. Graham, The Uses of Reform: Godly Disdpline
and Popular Behavior in Scotland and Beyond, 1560-1610 (Leiden, 1996); see also Mac
104Donald, Witches of Fife, ch. 10.
105
RPC, 1st ser., vii, 145-6.
106 NAS, High Court of Justiciary, small papers, JC26/5/2, and Pitcairn, Trials, ii, 535-8.
For Drysdaill, see RPC, 1st ser., viii, 322, 701. Irish Jonetwas mentioned frequendy in
Geillis's 1614 trial. Dr Louise Yeoman has tentatively identified her as 'Catherene
Carrutheris alias callit Erisch Jonet' who is mentioned in the witchcraft trial of
Euphame MacCalzean in 1591. See 'The trial of Geillis Johnstone', and Pitcairn,
Trials, i, 251.
She is last heard of in ward in Edinburgh, under caution to appear before the council.
There is no record of an appearance. She may have died, escaped, or been released.
Geillis Johnstone was accused of arranging her escape at her 1614 trial. NAS, JC1/38,
fo. 4v.

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THE PRIVY COUNCIL AND THE WITCHES 39

dowry of Geillis's daughter-in-law, and one of the accusations mad

against Geillis was that she had accidentally killed her own son (their
son-in-law) through witchcraft. The Vernors had ties to local ministers
and schoolmasters, eager to help in witchcraft cases.109 By the time of the
1614 trial, a large section of the community had been drawn into the
dispute. Fifty-three witnesses were summoned to testify against Geillis
and forty-seven men were summoned as a jury panel from which fiftee
jurors were chosen. They ranged from baillies of the burgh to poor ser
vants.110 Geillis retained the support of her family, and fortunately, there
was someone else in the community who was willing to help. The earl of
Dunfermline, Chancellor of Scotland, had recently acquired the nearby
estate of Pinkie and was engaged in extensive building at Pinkie
house.111 Geillis appealed to him, and he took an interest in the case.
The presbytery acted towards Geillis as it had in Robert Douglas'
adultery case in 1605: it tried her directly for the offence. Like Douglas
Geillis appealed to the Privy Council and the council quashed the trial. It
also provided guidelines for how a proper trial could be conducted, an
here we move out of the realm of the 'normal' and into the world of th
'exceptional'. The council gave two choices for a venue: the Justic
Court, or the regality court of Dunfermline.112 The earl of Dunfermline
sitting on the council when this decision was reached, was also heredi
tary baillie (i.e., judge) of the regality court. The council was sending th
case to him, and in 1614 it was the regality court that tried Geilli
Johnstone.
In addition to the central courts we have been dealing with, Scotland
had a decentralised feudal court system in which regalities were the
senior jurisdictions. The regality of Dunfermline was based mainly in
Fife, but included a detached territory in Musselburgh. The regality
excluded the king's authority in most civil and criminal matters and
writs ran in the name of the baillie, not the king. Witchcraft was one of
the few crimes a regality did not try. It is plausible to assume that allow
ing Dunfermline to try Geillis in his own local court was a move towards
decentralisation that was designed to help him acquit someone he knew
and towards whom he was sympathetic. However, this was not the case.
Trying the case before the regality court did help secure an acquittal,
but Dunfermline's goal was one of principle, not personal favour. He
wanted to use this trial to show all of Scotland the high standards of evi
dence that should be adhered to in a witchcraft trial. This can be seen in
three things: the choice of assessors, the fact that the trial was held in

'The trial of Geillis Johnstone'. A wider context for this kind of witchcraft quarrel
among local elites is given in L. A. Yeoman, 'Hunting the rich witch in Scotland: High
status witchcraft suspects and their persecutors, 1590-1660', in Goodare, Scottish
Witch-hunt in Context, 106-21.
NAS, High Court of Justiciary, witchcraft papers, JC40/8. This is a summons for these
people to Geillis's trial and is catalogued separately in the NAS. It will also be printed
in 'The trial of Geillis Johnstone'.
G. Seton, Memoir ofAlexander Seton, Earl of Dunfermline (Edinburgh, 1882), 176.
112 RPC, 1st ser., viii, 328-9, and xiv, 612.

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40 MICHAEL WASSER

Edinburgh, not Musselburgh, and the types of arguments made

decisions taken, both in 1609 and 1614.
Dunfermline was the most respected legal mind in Scotland. He di
not need assessors. Nonetheless he gathered thirteen around him
the bench.113 They included an archbishop, a bishop, an earl, n
judges from the Court of Session (four of whom were also officers
state), and the Justice Depute. All of these men were privy councillors
some point in their careers. Two of them - John Spottiswood, A
bishop of Glasgow114 and Thomas Hamilton, Lord Binning (previous
Lord Advocate Hamilton) - are known to have opposed enthusias
witch-hunting. Most of them were Dunfermline's colleagues, fel
judges whom he was bringing into the Privy Council to help him run
country. In fact they were more numerous than the assessors appoint
for the treason trial of the earl of Orkney in 1615.115 WTiy would
obscure burgess's widow need a more elevated bench than the kin
own cousin? Holding the trial in Edinburgh rather than Musselburg
provides another clue. In Edinburgh large numbers of importa
people, including other lawyers, could witness the proceedings. O
young advocate named Thomas Hope, who was not involved in the tri
did just that. Hope became one of the most prominent lawyers of th
next generation and he mentioned Geillis's trial in his MajorPracticks
important source for Scottish legal history.116 Geillis Johnstone co
have been saved in obscurity, in a simple trial held in Musselburg
Dunfermline wanted publicity, and he got it.
But why did Dunfermline want publicity? Wfay did he assemble th
impressive bench of assessors? Dunfermline himself says nothing -
only acts, and he does so in concert with others. To answer these qu
tions we have to interpret these actions. The actions taken by the coun
in 1609 and the regality court in 1614 focused on two issues. One was
illegality of the presbytery trial, the other was the unreliable natur
the evidence presented against Geillis. Both violated what today wou
be called 'due process', a concept to which early-modern lawyers
adhered.117 But attention to due process militated against large-scal
witch-hunting. Large witch-hunts were dependent on evidence obtai
through torture, other sorts of coercion, or testimony from children
other normally unacceptable witnesses. This was validated by some c
tinental legal theorists, who held that 'hidden crimes' like treason o
witchcraft could be classed as 'crimen exceptum! - exceptional crime
where due process could be relaxed to obtain convictions. Norma
unacceptable witnesses became acceptable, and the regulatio
113 NAS,JCl/38,fo. Ir.
He became archbishop of St Andrews in 1615.
See Pitcairn, Trials, iii, 312-18. There were nine assessors appointed; Dunferm
himself was one, and all were session judges.
Thomas Hope, Hope's Major Practicks, 1608-1633, ed. J. A. Clyde (Stair Society
1937-8), ii, 306.
Levack, 'The decline and end of witchcraft prosecutions', 14.

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THE PRIVY COUNCIL AND THE WITCHES 41

governing torture were relaxed.118 By adhering to due process, an

adopting a sceptical rather than an accepting attitude towards evidence
the Privy Council and the regality court were rejecting the view of witch
craft as a crimen exceptum. This was probably the publicity th
Dunfermline was trying to achieve.
When Geillis's son argued her case before the council in 1609 h
made two points. One was the illegality of the presbytery's trial. The
other was that the accusations brought against her were malicious
inspired by her enemies. Furthermore, the presbytery's mode of inquir
- holding her imprisoned for seven weeks while it used 'quhatsumevir
forme of procedoure thay pleasit use agains hir' - seemed deliberately
designed to bring her reputation into doubt. In its ruling the council
addressed only the first point. It discharged the presbytery from an
trial, saying that all it could do was investigate, not try witches.119 But th
second point must also have weighed on the councillors' minds, esp
cially Dunfermline's, and influenced their decision to allow a trial in th
regality court. Indeed, the 1614 trial shows that there was much mor
going on in 1609 than appears in the council's records. The malicious
ness of the accusations was being supported by torture, gossip and spec
lation, but not by any legally acceptable evidence.
In discussing the evidence used against Geillis, it must be noted that
she probably did consult witches to help cure her husband and son
when they were sick.120 It was this association with witches that got he
into trouble. Agnes Sampson, one of the famous North Berwick witche
was convicted in 1591 of (among other things) curing Geillis's husband
John Duncan by witchcraft. In 1614 two of the articles in Geillis's indic
ment accused her of consulting Agnes Sampson.121 In the twenty-sixt
article, her parish minister, Mr Andro Blakhall (who died in 1609
accused her of consulting witches, especially Agnes Sampson.122 Afte
Sampson's death, Geillis appears to have used the mysterious 'Iris
Jonet' in the same capacity. Five of the twenty-six articles in her indic
ment mention Jonet.123 She was also accused of consulting anothe
witch, and was said to have twice confessed to consulting witches.124
Consulting with witches led to suspicion of witchcraft, as seen in th
accusation by Blakhall, who jumped from one to the other. Most of th
accusations against Geillis consisted of maleficium - using magic to har
118
C. Larner, 'Crimen exceptum? The crime of witchcraft in Europe', in C. Larner, Witch
craft and Religion: The Politics of Popular Belief (Oxford and New York, 1984), 35-67;
Soman, 'Decriminalizing witchcraft' 13-14; Levack, 'The decline and end of witch
119 craft prosecutions', 7-33.
120 RPC, 1st ser., viii, 328-9, and xiv, 612.
See C. Larner, 'Official and unofficial healing', in Larner, Witchcraft and Religion,
141-52, and J. Miller, 'Devices and directions: Folk healing aspects of witchcraft prac
tice in seventeenth-century Scotland', in Goodare, The Scottish Witch-hunt in Context,
121 90-105, for the link between witchcraft and healing.
122 Pitcairn, Trials, ii, 232; NAS, JC1/38, fo. 7r-v.
123 NAS,JCl/38,fo. 8r-v.
124 Ibid., fos. 2r-5r.
Ibid., fos. 7v-8r.

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42 MICHAEL WASSER

her neighbours and their goods. But there were a few that also alleg
demonic magic. It was the presbytery's questioning of Irish Jonet t
proved the key in this regard. The core of the story was that Geillis
summoned Irish Jonet to help her cure her son James Duncan, who w
sick. But Jonet was questioned under torture and she transformed th
human consultation into a demonic consultation. The devil came to g
his opinion, Geillis sacrificed her stillborn grandson to him, and Iri
Jonet then had sexual intercourse with him.125 This is the only acc
tion of child sacrifice in the history of Scottish witchcraft.126 It was thi
story that made the presbytery so determined to try Geillis. In allia
with her enemies the Vernors, it held the 1609 presbytery trial.
WTien the regality trial was held the Vernors and the presbyt
wanted to reintroduce the evidence that had secured Geillis's convict
in 1609. However, eight of the councillors who had invalidated that tr
were now sitting on the bench in 1614, including Dunfermline.127 T
decisions taken by the judges demonstrate the type of critical attitu
adopted by the privy councillors towards witchcraft evidence. There
no hint that anyone doubted the existence of witches or witchcraft
was only questions of due process and evidence that were in question
Two questions determined the outcome of the trial: Were women eli
ble to be admitted as witnesses? Were the brethren of the Presbytery
Dalkeith to be allowed to present their evidence? In each case the answ
was no.128 It was the missing evidence that allowed Geillis to be acquitt
The decision to exclude women from being witnesses was a particu
larly pointed rejection of witchcraft as a crimen exceptum. The contem
rary justification for excluding women from testifying in criminal tr
emphasised their moral and mental inferiority.129 However, in 159
under pressure from King James, the Court of Session had passed a
allowing women and other illegitimate witnesses, such as crimin
accomplices of the accused, to testify in cases of treason and heresy.1
This example of the crimen exceptum mentality arose directly from d
culties that James had experienced in obtaining a conviction agai
Barbara Napier, a witch accused of treason. English observers report
that the judges initially resisted, despite James's pressure, and that s
thought that this rule did not apply to witchcraft.131 Dunfermline was o
the court at that time. Although we do not know his opinion, given
decision in his court in 1614 we can assume that he was opposed to s
125 Ibid., fo. 2r-v.
'The Trial of Geillisjohnstone'.
127 RPC, 1st ser., viii, 328, NAS, JC1/38, fo. In
NAS,JCl/38, fos. 9v-10r. There were other aspects of the trial and the decisions ta
there that helped to acquit Geillis, but these were the most important. For a full
cussion, see 'The Trial of Geillisjohnstone'.
Balfour, Practicks, ii, 377-9. Women were mentioned in a list that included childr
the insane, interested parties, criminals, the excommunicated, and many others,
excluded for moral reasons, or for their lack of understanding.
Hope, Major Practicks, ii, 268.
Robert Bowes to Lord Burghley, 8 June 1591, Calendar of the State Papers Relating to
land and Mary Queen of Scots, 1547-1603, x, 522.

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THE PRIVY COUNCIL AND THE WITCHES 43

witnesses in witchcraft trails. Indeed, it was probably the fact that t

1614 trial was held in his own regality court that allowed him to ignor
the fact that women routinely testified in witchcraft trials before th
trial, as they continued to do after. Barring women did, however, dem
onstrate the attitude that Dunfermline adopted in assessing requests fo
commissions: standards of evidence needed to be high.
Although Geillis's lawyers argued that much of the presbytery's ev
dence was illegitimate, because the witnesses interviewed had bee
women and her own enemies,132 the decision to exclude its testimony
was based strictly on arguments of due process - having once tried an
convicted her the ministers of the presbytery could not now be witnesses
against her.133 However, a surprising uncertainty occurred over the
depositions of Irish Jonet, which the presbytery also wanted to
present.134 Geillis's lawyers objected on four grounds: Irish Jonet was
woman, she was 'ane infamous divillish persone',135 she had been ille
gally imprisoned at the time the deposition was taken, and it had bee
extracted through the illegal use of torture. At an early stage in the trial,
an initial ruling allowed her deposition to be presented. But when
came time to read it to the jury, further objections were raised and it was
rejected.136 Unfortunately the manuscript is silent on the discussion
that must have taken place among Dunfermline and the assessors.
The attitude adopted by Dunfermline and his assessors can be co
trasted with that of the commissioners appointed to try Margaret Barclay
in 1618. Faced with Margaret's repeated claims of innocence, they too
advice from a nobleman, the earl of Eglinton, and subjected her t
torture. The torture was repeated until Margaret confessed. This was
witchcraft as a crimen exceptum - do whatever is necessary to convict. Mar
garet Barclay was strangled and burned at the stake.137
1609, as we have seen, was a year of rising demand for witchcraft pros
ecutions. If an alarmed Privy Council had embraced the results of the
Presbytery of Dalkeith's investigations, it might have sparked anothe
large-scale hunt. Certainly the lurid details of Irish Jonet's deposition,
complete with baby sacrifices and sex with the devil, obtained by torture,
suggest this possibility.138 Instead, it cast a critical gaze on both the pr
bytery's procedure and its evidence. By keeping proceedings under th
132
133 NAS,JCl/38,fo.9v.
134 Ibid., fos. 9v-10r.
Ibid., fos. 2r-3r, 12r-v. Although the Presbytery was presenting the deposition, it was
treated separately from the Presbytery's own evidence as witnesses. Jonet herself had
escaped, allegedly by Geillis's use of witchcraft, and was not present. Ibid., fo. 3v.
Ibid., fo. 12r. Criminal associates of the accused were usually not allowed to testify, nor
were those with evil reputations. Irish Jonet was both.
There were four stages (potentially) in a Scottish criminal trial: in the second, the
lawyers or parties could object to the charges on legal grounds, in the third, the jury
would be chosen and sworn and any evidence presented. Irish Jonet's deposition was
first objected to, but allowed to pass, in the second stage; in the third, the objections
137were renewed and the deposition rejected.
138 Sir Walter Scott, Letters onDemonology and Witchcraft (London, 1885), 259-63.
See Levack, Witch-hunt, 76-84, for the role of torture in fuelling witch-hunts.

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44 MICHAEL WASSER

eyes of well-educated and professional judges and by demanding

standards of evidence, Geillis Johnstone was acquitted. But th
concern of the councillors was to prevent abuses, not to disallow
altogether. Some at least had been willing to admit Irish Jonet's
tions, and in 1611 the granting of commissions allowed more wit
be tried. In 1628 a new witch-hunt began.
*

When one compares the pause in national witch-h

with their permanent cessation after 1662, many
Levack recounts how witch-hunting declined in the w
1661-2 witch-hunt. Renewed caution on the part o
especially the privy councillors, brought a reducti
and a bias in favour of Justice Court trials. Cautious
gan to discourage prosecutions, and more witche
'reflected a broader effort of the Scottish govern
teenth century to centralize and rationalize the crim
This tale will sound familiar to readers of this a
Levack's thesis that judicial scepticism was respo
witch-hunting in Scotland and all of Europe. But
sooner, why was the process incomplete in 1597
relative neglect by the councillors of their duty to s
missions, and periodic, religiously inspired, active
government in the covenanting period.140 This su
ticism needed to be reinforced by other attitudes an
it could resist insistent demands for witch-hunting,
1697-1700.141 This is a question that needs to
length in other studies. What can be done here is
specific reasons why the 1628-30 witch-hunt occu
Like most witch-hunts, that of 1628-30 was pr
with a strong component of local demand. While
be fully explored here, it is clear that the Privy C
keep the lid on it from 1622-28. We have already
of commissions and witches to be tried rose shar
plaints of ill-founded demands for trials promp
screening process by bishops, and six of the
examine witches - but not try them - occurred i
ture on witch-hunting also shows that witch-hun
that demand often built up again after periods of
contributing factors may include the poor econo
and the impact of the Thirty Years' War. But why
unable to contain this demand as it had done bef
139
140 Levack, 'The decline and end of Scottish witch-hunting', 172.
141
Ibid., 170-1.
M. Wasser, 'The western witch-hunt of 1697-1700: The last major witch-hunt in Scot
land', in Goodare, The Scottish Witch-Hunt in Context, 146-65.
Larner, Enemies of God, 80-2.

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THE PRIVY COUNCIL AND THE WITCHES 45

Two suggestions may be made, the first of which relates to the fragility
of the council's commitment to suppressing witch-hunting. The council
lors, as we have seen, were not uniformly committed to restricting
witch-hunting. The cautious attitude of the council, especially after the
impression caused by the 1597 hunt began to fade, was probably
dependent on the professional attitude and sensibilities of the session
judges. They were not able fully to control the council, and after half of
them were purged in 1626 their influence weakened. Also, the 'cumula
tive concept' of witchcraft, which emphasised the role of the devil, was
growing stronger in Scotland in these years.143 Christina Larner identi
fied the 1620s as the period when accounts of the pact with the devil
achieved a mature 'common form which did not vary much for the rest
of the century'.144 This may have been influencing the privy councillors.
The second suggestion concerns what was probably an inadvertent
stimulus to demand given by the council. It is interesting to note that the
witch-hunt of 1628-30 coincides almost exactly with the crown's attempt
to establish working circuit courts in Scotland. The circuit courts were
proclaimed in August 1628 and were finally abandoned in August 1630;
the witch-hunt occurred over exactly the same dates. Christina Larner
has already briefly speculated concerning this concurrence, but she
noticed only the coincidence of the starting dates, not that of the end
dates.145
To understand the link properly we need to look at the circuit courts
themselves.146 They were modelled on the English Assizes, with the
country divided up into districts and two session judges assigned to each
of these districts. The judges were to pass through them, holding courts
and trying crimes. The Justice General, William, Earl of Mentieth,147 was
also included on the commission establishing the courts. A long list of
seventy crimes to be tried was provided, including serious capital crimes
such as murder and witchcraft, and numerous non-capital crimes that
For the 'cumulative concept', see Levack, Witch-hunt, 29-50.
Larner, Enemies of God, 146. See also S. MacDonald, 'In search of the Devil in Fife
witchcraft cases, 1560-1705', in Goodare, The Scottish Witch-hunt in Context, 43: only
one reference to the devil occurred before the 1620s.
RPC, 1st ser., ii, 434-39 and iv, 12; Larner, Enemies of God, 72-3; Larner, Source-Book,
79-107. Goodare argues that what the council did was not 'inadvertent': he believes
that councillors 'were clearly promoting the hunt actively', and says that they were
personally interrogating witchcraft suspects. ('Witch-hunting and the Scottish state',
133.) But personal interrogations could simply be part of a continuing screening
process. The 1628-30 hunt was much less intense than that of 1597: c. 331 suspects in
two years versus c.400 suspects in less than one year. Perhaps some requests for trial
were still being refused.
146 Lee, Road to Revolution, 90-93; RPC, 2nd ser., ii, 345-47, 373-74, 434-39. The use of
the English term 'circuit courts' instead of the Scottish Justice Ayres' is indicative of
the increasing official Anglicisation of Scotland in this period.
While the Justice Depute usually presided in the Justice Court, the Justice General was
his superior. In 1628 King Charles managed to buy out the earl of Argyll's hereditary
control of this position and granted it on an annually renewable basis to Mentieth.
Mentieth was a courtier and politician. He was very powerful at this time, but he was
not trained in the law.

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46 MICHAEL WASSER

came under the rubric of'penall statuts'. In each sheriffdom, promin

inhabitants were to be summoned to 'give up the Kings dittayes' - that is
to name those people within the sheriffdom suspected of the vario
crimes. These people would then be summoned before the cour
answer for their crime. However, there was powerful resistance to t
new courts, and a compromise occurred. In practice, only certain p
statutes were tried by the circuit courts; serious crimes like murd
witchcraft, and most of the penal statutes, were not tried.148 Why
the witch-hunt? The following is what probably happened. The list
crimes was read in full to those summoned to give up dittay. There
pent up demand for witchcraft trials, and when the crime of witchc
was mentioned, people named names, but they were unable to pr
cute before the circuit courts. Those names were therefore submitte
the Privy Council instead, in the form of a request for a commissi
and it was through commissions that the hunt proceeded. The coun
stripped of many of its lawyers and less cautious than it had been, w
overwhelmed by the surge in requests and granted a large number
commissions. When the circuit courts ended, so did their stimulation
demand, and since demand had been partially satisfied by the hunt,
number of requests dropped precipitously.
This scenario necessarily contains elements of speculation an
requires more research to confirm it, especially at the local level. But it i
plausible, and there is one easily obtainable piece of corroborating e
dence. In October 1628, the depositions and confession of Jonet Boy
an accused witch, were presented to a circuit court in Dumbart
Rather than trying the case before the circuit court, Mentieth,
Justice General, gave a commission to local magistrates to try the cr
themselves. But so powerful was the tradition that commissions fo
witchcraft came from the Privy Council, that Mentieth - who was a p
councillor - twice asked the council to confirm his commission, anc
it supplemented by the council's own commission.149 The Privy Cou
was still supreme, and it was still the agent of centralisation, but - te
rarily - it was no longer effective in restraining the demand
witch-hunting.

148 Lee, Road to Revolution, 93; NAS, High Court of Justiciary, '6-21 October 1
Minutes of Justiciary Courts of Clackmannan, Perth, Kinross, Fife, Aberdeen, For
and Kincardine, and Stewartry of Mentieth and Strathearn', JC10/32; NAS, H
Court of Justiciary, '24 October 1629: Courts held at Edinburgh, Linlithgow,
Renfrew', JC10/33. Most of the crimes in these manuscripts were economic crim
none were serious capital crimes such as murder or witchcraft.
149 RPC, 2nd ser., ii, 476-7, and iii, 3-4.

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