I cannot speak to witchcraft, but the prosecution of heresy in England became a concerted movement post-1380. [1] Though English historians and lawyers before this time were aware of the legal position of the Church in regards to heretics, it’s practical experience before then was limited. [2] Heresy, as a status crime, is hard to detect and prosecute, and the ever-evolving nature of orthodoxy meant that heretics could not be defined over the centuries by using a checklist of prohibited beliefs. [3] In any case, heresy was defined not merely as the deviation from orthodoxy, but rather a refusal during the criminal trial to repent and return to the Church. [4] The trial was seen as giving heretics an opportunity to recant their erroneous beliefs, and even punishment was viewed as administering ‘medicine’ or ‘correction’ rather than guilt. [5]

Heresy was a ‘mixed’ case, and dealt with by both secular and spiritual jurisdictions, though the knowledge of its offensiveness was spread through canon law. [6] Because archbishops and bishops had ordinary jurisdiction, provinces and dioceses were where heresy cases could be judged. [7]. However, inquisitors could exercise their own jurisdiction and self-governing bodies such as universities also had a duty to discover and punish heretics. [8] Additionally, as the protector of the Church, the Crown was obligated to resist heresy. [9] The Fourth Lateran Council reiterated the necessity of secular rulers to help the church against heretics, and they could be compelled to swear an oath to defend the faith; if they refused to do so, they risked being excommunicated. [10]

This intersection of the Church and Crown’s jurisdiction led to the four stages of the prosecution of heresy (detection, arrest, trial and punishment) being divided between the Church and secular branches of power. [11] The Church oversaw detection, the secular arm arrested, the Church would put the accused on trial, and then hand them back over to the Crown for punishment. [12]. Generally, it seemed as those the Church’s role in the prosecution of heresy was more prominent; the gloss to the Liber sextus stated that though the Crown must offer it’s assistance in the logistics of investigating, capturing, imprisoning and punishing heretics, it could not have a role in judging heresy because some aspects of the crime only related to the Church. [13] This is in line with the definition of heresy itself; as it is more a crime of morality, ecclesiastical courts and judges may have been better positioned to give the accused opportunities to repent and ‘turn back to God’ than their secular counterparts.

You might have thought that no inquisitorial courts existed in England because of the lack of a colourful Spanish Inquisition-style movement. Heretical convictions in England, unlike on the continent, were not brought about by confessions obtained through torture; I think I’m right in assuming that’s what we think of when the Spanish Inquisition is brought up. I was interested in discovering why torture doesn’t seem to feature so prominently in this part of English legal history, so did some follow-up research; I apologise if I divert a little from your original question in doing so.

As Langbein describes, the use of torture on the continent (and subsequently as was used during the Spanish Inquisition) developed as a judicially supervised feature of European criminal procedure, used to corroborate circumstantial evidence. [14] This procedure developed as a response to the high standard of proof required for a conviction in a post-1215 world. As Plucknett discusses, up until 1215, the guilt of the accused could be determined with divine certainty through an ordeal blessed and performed by the clergy. [15] The standard of proof achieved through invoking God in such fact-finding was absolute: God does not get things wrong. [16] This certainty was destroyed after the Fourth Lateran Council, where Pope Innocent III forbade clergy from being associated with ordeals. [17] Without the intervention of God, certainty was removed from a trial, and a judicial hangover created; human judges could not achieve divine certainty in criminal adjudication. [18]

In lieu of absolute certainty, the Italian Glossators designed a system of proof so objective that it was entirely unworkable; convictions had to be based on the eyewitness testimony of two impeachable witnesses to a crime. [19] Circumstantial evidence alone would not suffice. Without this testimony, only a voluntary confession could bring about a conviction. [20]

Langbein argues that because the eyewitness rule was difficult to implement, coercing a confession from someone who was suspected anyway became the norm. One eyewitness, or circumstantial evidence, was enough to justify torture, with the reasoning being that an innocent man would not confess to a crime he had not committed. [21] Additionally, rules developed to enhance the reliability of the confession; the accused would need to disclose factual details of the crime, things no innocent man would know, and the examiner was not permitted to engage in leading questioning. [22]

Whether these rules were genuinely and judiciously applied is subject to debate, but the use of torture in heretical cases on the continent is not unsurprising given how difficult it would be to prove someone’s unorthodox beliefs non-circumstantially. However, I believe that England did not follow the Italian Glossator’s standard of proof due to the development of the jury trial, in lieu of trial by ordeal. Putting aside the fact that the Magna Carta prohibited the use of torture, the development of the jury trial in England meant that confession, and consequently torture, were not necessary devices to establish guilt in medieval England. Instead, a jury would evaluate facts and could condemn on the basis of circumstantial evidence; the unanimity of twelve being all the standard of proof required for conviction.

Forrest in the entirety of his book does not mention torture being used on those accused of heresy in England, other than in 1309 when two Papally-appointed (i.e., continental) inquisitors arrived in England to oversee the interrogations of the Templars. [23] Notably, the only time when something approaching torture is mentioned in England’s regular judicial mechanisms was in forcing defendants to submit to a trial by jury; peine forte et dure. If a defendant refused to enter a plea, he would be placed between two boards and have weights stacked upon him until he accepted trial by jury or died. [24] Otherwise, the use of torture in England seems to have been minimal, or at least mentioned relatively less often in comparison to the continent.

I would be grateful if anyone had any additional comments or research to add.

[1] Ian Forrest, The Detection of Heresy in Late Medieval England, 20 (2005) [accessible online at http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199286928.001.0001/acprof-9780199286928]

[2] id. 23

[3] id. 15

[4] id.

[5] id. 18-19

[6] id. 20

[7] id. 28

[8] id.

[9] id.

[10] id. 31

[11] id. 32

[12] id. 32-33

[13] id. 33

[14] John Langbein, “Torture and Plea Bargaining,” 46 U. Chi. L. Rev. 4, 5 (1978) [accessible online at http://digitalcommons.law.yale.edu/fss_papers/543/]

[15] Plucknett, 114

[16] Langbein, 4

[17] Plucknett, 118

[18] Langbein, id.

[19] id., 4-5

[20] id., 4

[21] id., 5.

[22] id., 7

[23] id. 24-25

[24] Plucknett, 126

-- AshleighHunt - 16 Oct 2014