Confession

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Chapter 12
Confession

Whereupon there was openly read, and given in evidence against her, for the Kings Majestie, her owne voluntarie Confession and Examination, when shee was apprehended, taken, and committed to the Castle of Lancaster by M. Nowel, and M. Bannester, two of his Mejesties Justices of Peace in the same Countie, viz.1

There was a debate about whether confession sufficed for conviction in witchcraft cases, but it is clear that a confession was enough to arrest the suspect pending trial. In 1674, when Ann Foster was brought before the JP on suspicion of bewitching the victim’s sheep and causing fire in his barn, ‘she freely confessed all, and boasted that she would make many more die as well as her self ’. Upon which confession, the JP committed her to Northampton Goal, where she was to remain until the next assizes.2

For many, confession was the most elegant solution to the dilemma of proving the crime. Bernard considered the confession to be a good proof of the witches’ relationship with the devil. To those who doubted that any sane person could freely admit crimes that would necessarily lead him or her to the gallows, Bernard answered that it was a fact that witches did confess their evil deeds, and he listed precedents to support this claim.3 Potts, the author of one of the accounts which Bernard relied on, was careful to portray the confessions as voluntary. Potts remarked about the confession of Chattox, one of the chief defendants in the case of 1612, that she murdered the young Robert Nutter:

Since the voluntarie confession and examination of a Witch, doth exceede all other evidence, I spare to trouble you with a multitude of Examinations, or Depositions of any other witnesses.4

Relying on this case, Michael Dalton provided evidentiary rules for the discovery of witches and repeated that the voluntary confession of witches ‘exceeds all other evidence’.5 An author of a legal tract in 1643 repeated this statement and clarified that the confession was effective in proving both the maleficia and the alliance with the devil:

Their own voluntary confession (which exceeds all other evidences) of the hurt they have done, or of the giving of their soules to the Devil, and of the Spirits which they have, how many, how they call them, and how they came by them.6

The idea that confessions were decisive also appeared in the pamphlet literature, which emphasized instances of confessions and their value. A confession, one of the authors expressed, was ‘unquestionable, it being confessed by the Witch her self ’.7

Confessions were highly desired, and suspects’ statements were often liberally interpreted. Confession could have been implicit as well as explicit. Mother Samuel’s words as Lady Cromwell cut a lock of her hair, ‘I never did you any harme as yet’, were retroactively interpreted as proof of Mother Samuel’s being a witch.8 In a dramatic moment of the Warboys affair, when Mother Samuel fell on her knees and asked Mr Throckmorton for forgiveness, this was interpreted as proof of her guilt.9

Bernard, who regarded the explicit confession as a good proof, considered the implicit confession to be a ‘great presumption’ that warranted an examination (not conviction). Bernard cited examples from previous cases, which he used as precedents, such as, ‘You should haue let me alone then’, or ‘I will promise you that I will doe you no hurt, vpon this or that condition’.10 In addition, Bernard claimed that the pact with the devil could be inferred from ‘Witches words’, such as calling upon familiars, threatening to hurt people or cattle, or discussing other witchcraft-related matters.11 Bernard’s analysis of the implicit confession was cited in subsequent legal writing.12

Yet, some of the contemporaries doubted whether confession was indeed superior evidence. What did ‘voluntary’ mean? Should the confession be corroborated with additional evidence? Was it possible to accept a confession about improbable events? Could the confession be an illusion created by a mentally ill mind? Could an out-of-court confession be submitted as evidence after the defendant had recanted in court? And, if so, in what manner? Such concerns were already addressed in 1584 by Reginald Scot, who explained that confessions about inflicting damage by natural means (such as poisoning) should be accepted:

If they confesse that, which hath béene indéed committed by them, as poisoning, or anie other kind of murther, which falleth into the power of such persons to accomplish; I stand not to defend their cause.

Yet, Scot maintained, it was necessary to reject confessions relating to impossible or unnatural acts. Confessions about killing with a look, a word or a touch of the bare hand, are unacceptable by any standard, and if ‘examined by divinitie, philosophie, physicke, lawe or conscience’, they would be found false and insufficient.13

Scot also denied the validity of confessions made by mentally ill suspects. Such confessions ‘may be untrulie made, though it tend to the destruction of the confessor; and that melancholie may moove imaginations to that effect’.14 Mental illness, called ‘melancholy’ by the early modern English, could lead the suspects to confess to crimes they had never committed, even though it led to their execution. It was because of their melancholy, Scot believed, that some persons genuinely, but erroneously, believed themselves to have perpetrated acts of witchcraft. He gave an example he was familiar with, a ‘Kentish storie of a late accident’ about the couple Ade and Simon Davie. The wife, who became depressed and withdrawn, confessed to her husband that she had ‘bargained and given hir soule to the divell’. The husband immediately replied:

Having heard his answer, the women failed to be consoled and continued to confess in penitent tears that she had bewitched him and their children. The husband stayed calm and assured his wife: ‘Be content … by the grace of God, Jesus Christ shall unwitch us: for none evil can happen to them that feare God.’ The husband then made his repentant wife read psalms and pray for God’s mercy. And, indeed, the same day at midnight, when they heard a great rumbling under the window, they realized it was the devil below, but too weak to come in ‘because of their fervent praiers’. Scot clarified that the woman had clearly committed no crime and bewitched none, but being depressed, was ‘pressed downe with the weight of this humor’, and believed herself to be a witch. Scot had no doubt that, had this woman been tried by Bodin, or by other witchmongers, she would have been executed.15 The moral of the story, Scot explained, is that in cases of the mentally ill, confession could not be considered true or voluntary, since ‘this melancholike humor (as the best physicians affirme) is the cause of all their strange, impossible, and incredible confessions’.16

Scot’s conclusion was general and applied not only to mentally ill suspects. In fact, he stated that confession alone was insufficient to prove witchcraft. In capital cases, proofs ‘must be brought more cleare than the light it selfe’.17 Scot addressed those who claimed that confession was the only way to prove witchcraft. His answer was that confessions about unnatural acts were ‘not worthie of credit’, and if the suspects confessed to ‘a fact performed but in opinion, they are to be reputed among the number of fooles’.18

Scot had used the term ‘voluntarie confession’, which denoted mostly internal motives, such as melancholy, which induced suspects to deliver false confessions.19 Perkins referred to a ‘free and voluntarie confession’,20 a phrase still used today. By adding the term free, Perkins emphasized freedom from external coercion. He also retained the term voluntary to denote internal freedom. By voluntary, Perkins demanded that statements be undistorted by delusions or mental illness. Pamphleteers often described the confessions of suspects as voluntary.21 The requirement that confessions be free and voluntary had also been adopted in the American colonies. Increase Mather, an influential Puritan leader in the Massachusetts Bay Colony writing in the aftermath of the Salem witch trials, stated that ‘a free and voluntary Confession of the Crime made by the Person suspected and accused after Examination, is a sufficient Ground of Conviction’. Mather declared, ‘nothing can be more clear’ than confessions made by ‘any Persons out of Remorse of Conscience, or from a Touch of God on their Spirits’. And as for those who made false confession, Mather felt no qualms and asserted that ‘they ought to dye for their Wickedness, and their Blood will be upon their own Heads; the Jury, the Judges, and the Land is clear’.22 By confessing to crimes they never committed, Mather said, the suspects ensnared the jurors and judges into wrongful conviction, and for that they ought to die anyway.23

Perkins considered confession to be one of the two proofs sufficient for conviction (the other being testimony by two credible witnesses). He explained that ‘all men both Diuines, and Lawyers’ considered the confession to be a sufficient basis for conviction, as ‘For what needs more witnes, or further enquirie, when a man from the touch of his own conscience acknowledgeth the fault’.24 Since the confession was against the suspect’s self-interest, it must be true. In the words of an eighteenth-century pamphleteer, ‘we may Suspect the Truth of a Malefactor, who asserts his Innocence to the Last Moment; yet surely never any question’d the Truth of a Criminal’s Confession’.25 Perkins, however, was not so naive as to believe that every self-damaging confession must be true. In answer to those he called ‘the patrons and aduocates of Witches’, who claimed that an untrue confession could be obtained through fear, threats or other pressures, Perkins clarified that a ‘bare confession’ was not enough. Conviction could rest only on ‘a confession after due examination taken vpon pregnant presumptions’ and ‘vpon good probabilities’.26 Without such corroborating circumstances, the confession could not be relied on.

Although he regarded confession to be superior evidence, Dalton was more cautious and believed that the confession in examination was not sufficient for conviction even in witchcraft cases. He argued that in witchcraft cases, as well as in other hard-to-prove crimes, the confession of the accused in the examination, something he considered a ‘half proof ’, ought to be admitted into evidence:

And yet the confession of the offendor, vpon his examination before the Iustice of Peace shall be no conuiction of the offendor, except he shall after confesse the same againe vpon his tryall or arraignement, or be found guiltie by verdict of twelue men, &c.

Also in cases of secret murthers, and in cases of poysoning, witchcraft, and the like secret offences, where open and euident proofes are seldome to be had, ther (it seemeth) halfe proofes are to be allowed, and are good causes of suspition.27

Dalton’s contention was that in witchcraft cases, the confession in examination was a good cause of suspicion, but it needed corroboration to achieve conviction. Although Perkins declared confession to be sufficient proof and Dalton regarded it only as half proof, the difference is more semantic, and the essence of their views is the same – to be accepted as valid and true, the confession had to be freely made and should have been corroborated by other evidence.

Gaule, a clergyman, agreed with Perkins that a bare confession was a probable sign but insufficient for conviction.28 Although in Gaule’s view the witch’s ‘free confession’ was one of the ‘more infallible and certaine signes’, he insisted it should be corroborated, ‘For Confession without Fact, may be a meer delusio; & Fact without Confession, may be but a meer accidet’.29 Gaule recommended that the witch hunter consider the following factors when evaluating a confession:

if the party confessing bee of right mind: and not diabolically deluded to confesse not improbabilities only, but impossibilities: if it be not forced, but a free confession. If Melancholy Humors work not too fond and false self-perswasions. If they may not be some seeds of superstition disposing to witchcraft only; whereof the Conscience convicted and distracted, errs confusedly in apprehending and acknowledging all the Completion thereof.30

Corroboration of the confession with additional evidence seems to have been the practice in English courts of the early seventeenth century. Thomas Potts emphasized that although James Device’s confession was legally sufficient proof, Judge Bromley insisted on having the other witnesses testify and on examining the suspect in court:

This voluntary Confession and Examination of his owne, containing in it selfe matter sufficient in Law to charge him, and to prove his offences, contained in the two severall Indictments, was sufficient to satisfie the Gentlemen of the Jury of Life and Death, that he is guiltie of them, and either of them: yet my Lord Bromley commanded, for their better satisfaction, that the Witnesses present in Court against any of the Prisoners, should be examined openly, viva voce, that the Prisoner might both heare and answere to every particular point of their Evidence; notwithstanding any of their Examinations taken before any of his Majesties Justices of Peace within the same Countie.31

Although technically a mere confession would have sufficed, Judge Bromley felt more comfortable after hearing the witnesses.

Not everyone agreed that corroboration was a satisfactory precaution. Filmer, the author of a treatise of 1653 attacking the ways of proof offered by Perkins, did not neglect to oppose the confession, one of the two proofs Perkins considered sufficient. Filmer contested the use of confession for a few theoretical reasons. First, he agreed with Perkins that some suspects might be induced to admit crimes they did not commit. Second, Filmer claimed that corroborating confessions by presumption, as Perkins had suggested, did not solve the problem, as the presumptions are indeed insufficient. Third, Filmer did not accept Perkins’ argument that the witches were sober when they made the covenant but might be unreasonable and deluded afterward. Filmer held that if a person was deluded when making the confession, such confession was invalid in any case.32

Suspects in witchcraft cases confessed to having committed acts normally considered impossible or unnatural. They confessed to having imps or spirits, sending them to kill or injure other people or to destroy their property.33 Some suspects confessed to having sexual relations with devils and imps.34 We do not know what caused suspects to make a confession of impossible acts, which was often the most significant evidence leading to their execution.35 Coercion is the first explanation that comes to mind. Although torture was not permitted in the investigation of witchcraft cases, milder means could be no less effective.

The witch hunter Stearne, Matthew Hopkins’ assistant, acknowledged that some suspects were deprived of sleep for up to four days. However, he claimed, he did not ‘use violence, or extremity to force them to confesse, but made an observation necessary for the detection of imps’.36 Stearne also claimed that suspects could be led to confess ‘without extremity’, if after being instructed by divines or other ‘godly’ people about their sins, they wished to call on God’s mercy.37