Posted by Krista J. Kesselring, 3 January 2022
Recent reports suggest that the Scottish government plans to pardon people convicted under the terms of the Witchcraft Act of 1563—mostly women—in response to a petition organized by Claire Mitchell, Queen’s Counsel. The proposal prompts questions about the histories of both witchcraft and posthumous pardoning. What are such pardons for in the present and what might they do to popular understandings of the past?
Despite some news reports’ references to pardons for British ‘witches’, and arguments that people condemned for the crime in England ought to be pardoned, too, the current proposal relates to those convicted in Scotland alone. Both Scottish and English parliaments passed measures against witchcraft in 1563; in 1735/6, the post-union British parliament abolished the death penalty for ‘any kind of witchcraft, sorcery, inchantment or conjuration’ both north and south of the border. But the histories differed in the two jurisdictions in the years in between, not least in that far more people were found guilty of witchcraft in the northern kingdom than in the southern. Poor record survival in England leaves us only with very shaky estimates, which once suggested as many as 1000 executions but now tend toward ‘about 500’. In the more sparsely populated Scotland, in contrast, surviving records suggest that roughly 3800 people, overwhelmingly women, were charged as witches, with perhaps 2000-2500 of them killed for the crime. The pardon now proposed would be for these Scottish ‘witches’.
Few people now would see the executions as anything but tragic. Fewer still would think that the people convicted had, in fact, engaged in maleficent magic or diabolic pacts (even if some of the condemned thought they had). And surely few can doubt that the prosecutions were shaped by patriarchal social structures and misogynistic beliefs, variants of which persist in the present. But why pardon the ‘witches’ now and what would such a pardon achieve?
The petition asks for a national memorial, an apology, and a pardon, on the grounds of righting a historical wrong and correcting the historical record—to remember these people as people, not as witches, and to recognize that we no longer see the offences for which they died as criminal. The proposal invokes the recent precedents of the decision to pardon miners convicted for offences related to the strikes of the 1980s and the retroactive, and in many cases posthumous, pardons of the men convicted for homosexual acts once deemed criminal, granted via the Scottish Historical Sexual Offences (Pardons and Disregards) Act of 2018. The latter measure followed an earlier, narrower English amnesty popularly known as the ‘Alan Turing Law’, passed as an amendment to the Policing and Crime Act of 2017, which itself followed an individual posthumous pardon granted in 2013 for the famous codebreaker and computing pioneer.
While a few earlier precedents can be found, posthumous pardons denoting past injustices have become more frequent only in recent decades. Increasing numbers are now bestowed by state governments in the U.S., for example, to acknowledge mistaken convictions or at least that procedural failings had tainted the prosecutions, very often in cases riven with racial prejudice. In Britain, one of the first and best-known collective, posthumous pardons was issued in 2006 to just over 300 men shot at dawn in the first World War for desertion and other offences against military discipline, given in part in recognition that many of the men were suffering from diminished capacity deriving from the trauma of conflict and in part from perceptions that the rushed proceedings under martial law might not have been entirely just.
What of the longer history of posthumous pardons? Pardoning itself is ancient, but what of pardons for the dead? People long saw pardoning primarily as a saving act of mercy for the living, done precisely to save a life. Moreover, while it was sometimes used to free convicts who were not, in fact, guilty of the crimes for which they stood condemned in the absence of regular appeal procedures, it was framed first and foremost as forgiveness, a discretionary act of grace to redeem the guilty. In individual cases a posthumous pardon thus made little sense. In the aftermath of conflict, though, in efforts to build peace from the wreckage of war, general amnesties might extend to the dead as well as the living. For example, the Acts of ‘pardon, indemnity, and oblivion’ passed by King Charles II and his English and Scottish parliaments in the wake of the Wars of the Three Kingdoms, in 1660 and 1662 respectively, might be seen as including posthumous grants of grace: both extended to the ‘heirs, executors, and successors’ of people forgiven for their actions in the late ‘troubles’, freeing them of any property forfeitures attendant on those deeds. The English Act specifically exempted from its grace several individuals identified as deceased, not least Oliver Cromwell, Henry Ireton, and John Bradshaw, implicitly thereby extending to others then dead. And neither the early modern Scots nor the English felt any compunction about punishing the dead; one thinks of the post-mortem gibbeting, dissecting, or burning of some of the condemned, or indeed of rather more spectacular episodes like the posthumous trial of the fourth Earl of Huntly, with his cadaver propped up in the court, or the disinterring of the bodies of Cromwell, Ireton, and Bradshaw for post-mortem execution as traitors. If one could punish the dead, presumably pardoning them would not have been wholly unthinkable.
Pardons and punishments for the dead in the early modern era were done primarily for the living, though, to deter or dampen disorder amongst those who still walked the earth. And arguably, so, too, have most of the recent posthumous pardons been directed more so at the living than the dead, given to the relatively recently deceased less for the sake of the ostensible recipients and more so for their families, or at least for the pardons’ salutary, symbolic value to contemporary audiences.
Moreover, even those pardons granted to the recently deceased have not been easily won. Some historians and legal purists had argued against pardons for the Great War soldiers ‘shot at dawn’ or for Turing and other men convicted for homosexual offences not because they thought the convictions morally just or appropriate models for the present but because of concerns about ‘re-writing history’. When explaining the government decision initially just to apologize for Turing’s prosecution and not to extend a pardon, for example, the justice minister observed that:
A posthumous pardon was not considered appropriate as Alan Turing was properly convicted of what at the time was a criminal offence…It is tragic that Alan Turing was convicted of an offence which now seems both cruel and absurd…However, the law at the time required a prosecution and, as such, long-standing policy has been to accept that such convictions took place and, rather than trying to alter the historical context and put right what cannot be put right, ensure instead that we never again return to those times.
In a nuanced blog post on the Turing pardon and attempts to extend a similar measure to all ‘gay men’ convicted under the 1885 Criminal Law Amendment Act, Matt Houlbrook observed that the discussion tended to obscure the historical fact that many of the people in question would not have seen themselves in quite the ways their modern advocates assumed. He concluded:
Pardoning Alan Turing might be good politics, but it is certainly bad history. It is bad history because it collapses the differences between then and now. It creates an illusory sameness between the sexual categories that shape contemporary society and politics and those that shaped the lives of men (and women) in the past …Partial, inaccurate and evasive, the historical narrative that informs the campaign to pardon Turing fails to appreciate the historically specific ways in which they understood their lives.
One might make similar arguments for the proposal to pardon people convicted under the Scottish Witchcraft Act of 1563, with the additional point that such pardons have less direct benefit for people alive today than did the pardons for soldiers of the Great War or people convicted for sexual acts no longer deemed criminal.
Floris Tomasini’s thoughtful, perceptive account of the disputes over the pardons for the soldiers of the First World War summarized similar concerns expressed in that debate about re-writing history and re-evaluating it out of context. There, too, the balance of opinion ultimately tilted towards granting posthumous pardons, and Tomasini suggests rightly so:
Whilst it is, of course, important not to rewrite the past to suit the present, it is perfectly acceptable to re-evaluate its normative influence, especially when such influence shames contemporaries still affected by it….[R]e-evaluating memory is a deeply normative process, one that needs to be distinguished from the scholarly pursuit of understanding historical context for its own sake.
Responding to the ‘slippery slope’ argument—that by offering some such pardons we might be compelled to offer them to other individuals who suffered criminal punishments they would not face now—Tomasini suggests that we can and ought to distinguish morally ‘live’ cases in which the decision to pardon offers reparations to persons living today. He urges that we ask what such pardons are for and what they do in the present.
So, what of the pardons for people convicted under Scotland’s 1563 Witchcraft Act? The case for these convictions remaining morally ‘live’ today, with pardons offering reparation to the living, seems far weaker than for the sexual offences acts or the wartime offenders. True, intolerance for suspected witches remains a significant problem in parts of the world even now. Only this past year the U.N. Human Rights Council issued a special resolution seeking the elimination of harmful practices related to accusations of witchcraft, after reports of horrific acts of violence against people suspected of having magical powers, often vulnerable women, children, and elders or people with albinism. Yet, are the connections between the living and the Scottish ‘witches’ of centuries past strong enough to warrant a retrospective pardon’s potential elision of historical context and understanding?
If such a pardon invites us to greater caution about similar injustices in the present, sure, but if it simply invites us to a smug blindness to contemporary injustices by strengthening a sense of our own progress from cartoonishly redrawn bad actors in the past, then perhaps not. Many of these Scottish ‘witches’ were properly tried by the standards of their own day; any pardon should not occlude that uncomfortable and ideally provocative thought.
Moreover, some of the women and men so condemned almost certainly thought of themselves as witches. Some had engaged in the acts and behaviours associated with the offence and had adopted for themselves the persona of the witch, whether from desperation or from a yearning for power and self-assertion in their local communities. However constrained, harmful, or misguided one might now deem that choice to have been, some of these women and men very likely chose witchcraft over victimhood. We might find more value in the present from reflecting on such decisions than in ignoring them. The petition for the pardon cites a desire to have women’s history properly told; one hopes that any such pardon will not inadvertently erase what it’s meant to inscribe.
The few early modern pardons for the dead accompanied injunctions to forget, to consign wrongs to oblivion. We should not wish to do the same. But perhaps the legacy of the so-called ‘witches’ of the era, and we who reckon with it in the present, might be better served by a judicious memorial rather than a pardon. As the latter seems to be forthcoming, though, we can at least hope for the former, too.
Taken from Newes from Scotland (1592), via Wikimedia Commons.
 See, e.g., https://www.scotsman.com/news/people/witches-of-scotland-bill-to-be-brought-forward-to-pardon-women-and-others-convicted-of-witchcraft-3501871 and https://www.theguardian.com/uk-news/2021/dec/19/executed-witches-scotland-pardons-witchcraft-act. For the petition, see https://petitions.parliament.scot/petitions/PE1855
 For histories of Scottish witchcraft, see, e.g., works by or edited by Christina Larner and Julian Goodare, including Larner, Enemies of God: The Witch-Hunt in Scotland (Baltimore, 1981) and Goodare, ed., Scottish Witches and Witch-Hunters (Basingstoke, 2013); ed., The Scottish Witch-Hunt in Context (Manchester, 2002); ed. with Lauren Martin, and Joyce Miller, Witchcraft and Belief in Early Modern Scotland (Basingstoke, 2008). See also the online resource, edited by Goodare, Lauren Martin, Joyce Miller, and Louise Yeoman, ‘The Survey of Scottish Witchcraft’.
For comparative and contextual histories see, e.g., James Sharpe, ‘Witch-hunting and witch historiography: some Anglo-Scottish comparisons’, in Goodare, ed., The Scottish Witch-Hunt in Context (Manchester, 2002), pp. 182-97; Brian Levack, The Witch-Hunt in Early Modern Europe (Harlow, 2006); and essays in both Levack, ed., The Oxford Handbook of Witchcraft in Early Modern Europe and Colonial America (Oxford, 2013) and Johannes Dillinger, ed., The Routledge History of Witchcraft (London, 2021).
 Goodare et al, ‘Survey of Scottish Witchcraft’, http://www.shca.ed.ac.uk/Research/witches//introduction.html
 See, e.g., the report prepared by Stephen Greenspan, ‘Posthumous Pardons Granted in American History’ (2011) for the Death Penalty Information Center: https://files.deathpenaltyinfo.org/legacy/documents/PosthumousPardons.pdf and Scott D. Seligman’s essay for The Atlantic (26 October 2021), ‘Justice for the Dead’: https://www.theatlantic.com/ideas/archive/2021/10/posthumous-pardons-justice-dead/620485/
 On the history of pardoning see, e.g., C.J. Neville, ‘Royal Mercy in Later Medieval Scotland’, Florilegium 26 (2014), 1-32 and Christopher H.W. Gane, ‘The Effect of a Pardon in Scots Law’, Juridical Review, new ser., 25 (1980), 18-46. I have written on the history of pardoning in the English context; see K.J. Kesselring, Mercy and Authority in the Tudor State (Cambridge, 2003) and also a piece on this blog on contemporaneous pardons for people convicted of witchcraft in England: https://legalhistorymiscellany.com/2019/06/30/elizabethan-witch-trials/
 Lord McNally to the House of Lords, as reported in Martin Wainwright, ‘Government rejects a pardon for computer genius Alan Turing’, The Guardian, 7 Feb 2012.
 Matt Houlbrook, ‘Pardoning Alan Turing might be good politics but it’s certainly bad history’, The Trickster Prince, 8 August 2013.
 Floris Tomasini, Remembering and Disremembering the Dead: Posthumous Punishment, Harm and Redemption over Time (Basingstoke, 2017), ch. 4; quotes from pp. 57, 61. The book is available Open Access here: https://www.ncbi.nlm.nih.gov/books/NBK464644/
 Resolution on the Elimination of Harmful Practices Related to Accusations of Witchcraft and Ritual Attacks, A/HRD/47/L.9: https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=27302&LangID=E
For sobering reporting on the problem, see ‘Witchcraft Accusations and Persecution: Muti Murders and Human Sacrifice: Harmful Beliefs and Practices Behind a Global Crisis in Human Rights’ (2017), from the Witchcraft & Human Rights Information Network: http://www.whrin.org/wp-content/uploads/2017/10/2017-UNREPORT-final.pdf or the documents arising from the Experts Workshop on Witchcraft and Human Rights: https://www.ohchr.org/en/issues/albinism/pages/witchcraft.aspx
 See, e.g., Julian Goodare, ‘Women and the Witch-Hunt in Scotland’, Social History 23.3 (1998), 288-308, esp. 303, 308. Similar points have been made for ‘witches’ in England by, e.g., Malcolm Gaskill, ‘Witchcraft and power in early modern England: the case of Margaret Moore’, in Women, Crime and the Courts in Early Modern England, ed. Jennifer Kermode and Garthine Walker (London, 1994), 125-45 and Diane Purkiss, The Witch in History: Early Modern and Twentieth-Century Representations (London, 1996), esp. ch. 6, ‘Self-fashioning by women: Choosing to be a witch’.