Always on the lookout for additional material for my legal history teaching, I was watching an episode of Suzannah Lipscomb’s A History of Royal Scandals the other evening, as it was about magic, witchcraft etc., and that is something we touch on in the LH unit. There were some interesting sequences, but  one thing in particular stood out as not entirely accurate: when discussing the twentieth century prosecution of Helen Duncan (she of the cheesecloth ectoplasm and the government-worrying WW2 antics) it was suggested that this prosecution was under the 1604 Witchcraft Act of James I. This, however, cannot have been the case: this act was repealed in 1735 (not ‘the 1950s’ as the programme suggests). The big change introduced at that point (9 Geo. II, c.5) was that offences relating to witchcraft were all about pretending to do magic, as opposed to actually doing it. Apart from the fact that it would be good if public history was accurate in terms of the law generally, there is also a particular issue with the way in which witchcraft’s legal history is presented. To cut a very long story short, what actually happened is interesting, and harrowing, enough: there is no need to add to it, as people frequently do, and being inaccurate in an area of such gendered difference does women’s legal history no favours.

While it is tempting to see straightforward continuity of particular sorts of oppression, as better historians of women and gender have long pointed out, patriarchy is often more shape-shifting, subtle, insidious, than that. Here, the line of narrative which sees Helen Duncan as having been prosecuted for actual magic under the 1604 act, as opposed to fraudulent pretence of magic under the 1735 act, puts forward the idea of simple continuity of persecution of entirely innocent women for unreal offences. Helen Duncan, however, was charged with pretending to commune with the dead. Views may differ as to whether those who claim to contact those on ‘the other side’, with all the dangers of duping, and extracting money from, the bereaved, should be regarded as committing an offence, and as to whether the British authorities over-reacted to Duncan’s activities, and as to the gendered aspects to her treatment, but she was certainly prosecuted as a fraud, not a ‘real’ witch.

To some extent, misunderstandings here are encouraged by the name by which the 1735 act has come to be known – ‘the Witchcraft Act’: this prompts descriptions of Duncan having been prosecuted ‘as a witch’, or having been Britain’s/Scotland’s last witch. The legislation itself makes it clear that it is all about sweeping away the previous law, and guarding against a different menace, that of claims to magical powers which were liable to trick the unwary.

GS

23/11/2024

Image: fake ectoplasm, courtesy of Wikimedia Commons