A Cautionary Tale

C.A. Asbrey

I’m sure you’ve all heard the cops deliver a caution, known in the US as Miranda rights, and everywhere else as a caution or procedural rights. What you probably don’t know is the connection between Scottish witches and the evolution of that protection against self-incrimination. So, what exactly is that connection and how did it develop and spread to the rest of the world?

The core legal maxim behind the right to silence is nemo tenetur prodere se ipsum (“no one is bound to betray themselves” or “no one is bound to accuse themselves”). This principle was first developed by medieval canon law and the European ius commune on the continent. It extended into common law in both Scotland and England, but determined people soon found ways to persuade their targets to speak, and those methods were overlooked by a court system that was both adversarial and unfair.

In 1589 a series of tremendous storms disrupted the marriage of King James VI of Scotland (later James I of England after the union of the crowns) to Anne of Denmark, which the occult-obsessed king put down to the dark plotting of witches. The son of Mary Queen of Scots had a strange and disjointed childhood, and he was convinced that evil forces sought to kill him and end his sovereignty. He wasn’t wrong about the forces against him. There were competing claims for his thrones in Scotland and England, but there’s no evidence that they were supernatural. They were simply the normal ruthless, murderous, conniving threats facing anyone in power at that time, and largely came from blood relatives, people looking for a monarch who suited their religious denomination, and who would enrich their own power base. Convinced of his own special powers, he claimed to have his own magical insights and claimed to have seen his mother’s execution before it took place. “His Highness told me her death was visible in Scotland before it did really happen,” related Sir John Harington many years later, being, as he said, “spoken of in secret by those whose power of sight presented to them a bloody head dancing in the air”. Somehow, that didn’t make him a witch, but others reporting such manifestations were not so fortunate.

Two years after his mother’s execution he feared death in those storms so much he disembarked with a thirst for vengeance against those forces, and embarked on a witch hunt that claimed the lives of over 6,000 innocent people and tortured even more in the Great Scottish Witch Hunt. Scotland is a small country, and this disproportionate rate was around five times the European average.

So why blame witches and not the weather? Well, that honour lies with the Danish captain of the ship Peder Munk, but he was no ordinary seaman. He was socially connected and keeping on James’ side meant he gained the right to rule over Orkney, and grow his own political power. Munk’s litigation with Christoffer Valkendorff back home meant Valkendorff didn’t want to accept responsibility for any defects in the fleet he was responsible for equipping, manning, and maintaining; or in the cost-cutting that had enriched him. A convenient scapegoat was found in those accused of witchcraft both sides of the North Sea. People were arrested, tortured, and killed for raising the storms in Copenhagen and Scotland. And then the witch craze really started, driven by the zealotry of a damaged king whom historians fully accept was an avowed misogynist and homosexual. Being king meant that James could drive the agenda wherever he wanted, and when he became king of England, he took his cause with him there too. His new subjects were keen to curry favour, and threw themselves into their own witch hunt, and that also spread to places like the colonies in the Americas. James’ hatred even influenced the witches scene in Shakespeare’s MacBeth, and consolidated the notion that witchcraft was more than just a satanic conspiracy of women seeking more power than they had a right to; it was a plot against the state, social stability, and the god-given power of kings. And it was a period in which people in England believed in the divine right of their monarchs. Less so in Scotland where kings had been historically appointed, and the Stuart insistence on their divine rights led to the Wars of Three Kingdoms, a precursor, or part, of the English Civil War. Ultimately the Stuart insistence on their divine right to rule was a political misstep that culminated in the execution of King Charles I, James’ second son, in 1649.

But back to Scotland, and how that links to being the country with the highest protection against self-incrimination in the world and how that grew from a time and place where people had few rights unless they could buy them, and even then found it hard to hang onto them. The civil war I mentioned earlier did play a part. Cromwell deposed the king and seized power, installing a puritan government who banned Christmas and imposed religious restrictions on the populace in the form of extreme Protestantism. To the Scots this meant a period of turbulent divisions where hardline fundamentalism was forced on a population who did not easily accept change from England. There were uprisings and rebellions, but local seats of power abused their ability to bring cases, torture, accuse, interrogate, and kill. It’s worth noting that an accusation of witchcraft came with the ceding of property, where it would be auctioned. Those accusing them often snapped it up at a bargain price and many accusations were clearly driven by land disputes, such as the 1613 case of the wealthy Erskine of Dun family, where three siblings accused their relatives of witchcraft to gain an inheritance. Many others were obviously about sheer sexual sadism or just plain revenge on a rival. People were getting sick of it and the legitimacy of the judiciary was becoming untenable in the eyes of the public, and Scotland was not a country to where that was safe to be allowed to drift. They were a notably rebellious people and splintered culture. It’s worth pointing out that the monarch was the ruler of England (emphasis on land), but in Scotland they ruled the Scots, not the land. (The king is still legally termed King of Scots, by the way.) The distinction is subtle, but rooted in old Celtic law; they did not own the land and were answerable to the people; chosen by and ruled by the consent of the nobility and the community, rather than by an absolute divine right (hence the outrage at the claims made by the Stuarts to the contrary). And people were sick of the abuses of power largely rooted in local courts and jurisdictions where some wielded a cruel and self-serving authority. Those who had that power got there through corruption and nepotism.

Courts were being overwhelmed, public unrest was rising, and vigilante justice was undermining the rule of law. The situation was spiralling out of control and competing religious groups pushed agendas to prove that their sect or denomination was more pure than any other. Much of the language used in the witchcraft laws was anti-Catholic and there was also an element of colonialism attacking the different folklore and religious practices in Scotland that had sat comfortably alongside Christianity for centuries. A rise in healthcare as a professional role meant that those who used folk medicine and birthed babies were a challenge for a new male class of business and profit. There were as many reasons for people to accuse as there were cases.

Something had to give, and it did in a change of power with the restoration of monarchy. It resulted in an undermining of what had gone before. The return of the king swept away the old acts dressed up as religious zealotry with the firm affirmation of the people but not immediately. Sociologist now call it an extinction burst when a previously rewarded behaviour suddenly stops getting rewarded, causing the behaviour to temporarily get worse or more intense before it eventually stops, and in the pattern of history repeating itself there was a sudden flood of over six-hundred cases. The privy council acted in response to that demand.

Procedural reforms impacted the way the courts were allowed to work, stripping local courts of the right to detain, torture, and execute people; and that was vital. Local courts has a ninety percent execution rate, where professional circuit courts had a rate of around sixteen percent. That was because local interests, power bases, churches, and sheer hysteria was allowed to influence local courts more than circuit courts. In 1661 the Scottish Privy Council acted to stop the local courts from detaining people without firm evidence (not visions, gossip, or spectral), demanded that torture stop, banned forced confessions, and even prosecuted witch hunters. Trained judges and lawyers got involved, and local ministers and magistrates were no longer allowed to arbitrarily arrest anyone without a mandatory formal, central official warrant. Evidence was assessed dispassionately before a warrant could be issued, and a more rational and consistent standard forced. In his landmark 1678 textbook, Laws and Customs of Scotland in Matters Criminal, Sir George Mackenzie (one of the most famously violent ghosts in Edinburgh, but that’s another post) paradoxically defended the use of judicial torture under Scottish law for treason. He did, however, express skepticism about its efficacy, noting that “frail and timorous” people often confessed to untruths simply out of fear. He defended accused witches as a lawyer arguing that many confessions were merely the false results of torture.

An increased level of education meant that the judges and lawyers approached by witnesses claiming spectral visions approaching them in dreams, seeing demons, or someone’s cows becoming ill while their enemies prospered were not considered valid reasons to put someone to death. Women kept awake for days to force them to confess found that the courts now punished those who tortured them instead of executing them. Witch prickers; people who thrust thick needles all over the body to look for a spot that didn’t bleed were examined and found to have fake retractable needles to set people up. They also charged inordinate sums for performing their ‘duties.’ John Kincaid, a witch pricker, was arrested in 1662 for unwarranted torture. He served two months before being released on an undertaking that he’d never do it again. Contrast that with John Dick. On being arrested and taken to the tollbooth it was discovered that ‘John’ was actually a woman called Christian Caddell. She had been dressing as a man for several years to make money as a witch finder, and was transported to Barbados in 1663. Christian was never heard of again.

Decisions in courts set legal precedents and Scotland became a country where forced confession was unacceptable and in 1708 judicial torture became illegal. By the end of the 18th century that also included acts like sleep deprivation, threats, coercive behaviour, and psychological pressure, and any confession extracted as a result of threats, promises, inducements, or undue pressure was legally inadmissible. Around that time renowned Scottish legal scholars, such as Sir George Mackenzie in his Institutions of the Law of Scotland (1684) and Baron David Hume in his Commentaries (1797), cemented the principle that no person could be convicted of a crime on the word of a single witness or on an uncorroborated confession alone. That included the accused person themselves. If they admitted to a crime, it still had to be proven and the evidence corroborated. That’s why in high profile cases like Burke and Hare, the authorities needed one of the perpetrators to turn states evidence as corroboration despite all the bodies they delivered to the morgue. To prove the murders, they needed one as a witness to the large amount of evidence they piled up and pull the case together. In Scotland, corroboration means there must be independent evidence (from at least two separate sources) proving that the crime took place and linking the accused to it. The levels are lower in England and the USA.

Scotland still has the office of Procurator Fiscal, and their modern role is primarily that of the public prosecutor. The role was known in Europe from the middle ages and was first recorded in Scotland in 1457. Their original role was to support the local sheriff in collecting taxes, dues, and fines, as well as assisting the sheriff in early criminal proceedings. In the 17th and 18th century that evolved to investigating cases and compiling evidence. In taking such statements from accused people the fiscal started delivering a caution in the 18th century. Statements made under caution meant that anything the person said was admissible in court, and not treated as hearsay. The caution made cases legally more robust and less likely to fail in court. It’s worth knowing that Scotland an act of the Scottish Parliament in 1424 mandated that poor people requiring legal advice and representation be provided with a “leill and a wise Advocate“. By the 17th century, poor litigants who could swear an oath of poverty could petition the courts to be placed on the Poor’s Roll. Advocates and agents assigned to those on the Poor’s Roll were expected to take these cases for free. This was viewed as a professional duty and was provided at the expense of their more gainful employment. By the end of seventeenth century this had progressed, and organisations such as Scotscare were founded (receiving a Royal Charter from Charles II in 1665) to assist poorer compatriots and artisans, helping them navigate society and access necessary representation. This meant that the fiscals had to be legally trained and ensure that their cases were robust enough to withstand expert legal scrutiny, especially as by the eighteenth century when Scottish universities were globally renowned intellectual powerhouses. The Scottish Enlightenment was an extraordinary burst of intellectual, scientific, and philosophical activity that transformed Scotland, particularly its capital, Edinburgh, and became a global beacon of rational thought, earning the region the nickname the “Athens of the North”.

The revolutionary ideas born during this period fundamentally shaped modern capitalism, the scientific method, sociology, and modern democracy. And one of those legacies was the right to protection against self-incrimination. In the eighteenth century, the caution delivered by the Procurator Fiscal standardised to, “You do not have to say anything, but anything you do say will be taken down in writing and may be used in evidence.” Sound familiar? It should. That caution then became the domain of the police when they started taking over investigations. The City of Glasgow Police was the oldest modern police force in the world. It started in 1800, and had its detective department from 1819. Many people quote the Met as the first, but it absolutely was not. The Met started in 1829 and had no detectives until1842 , and Robert Peel came up to Scotland to examine their model of policing in 1822. Edinburgh had also instituted a similar police force in 1805.

The Scots ‘auld alliance’ with France made them more open to developing ideas from continental Europe. They used the Napoleonic Parisian method of breaking down the city into districts, with police commanders and inspectors working directly in the neighbourhoods; all under a centralised leadership. What made the Scottish model different was the fact that they used professional officers, where the French system originally used ex-criminals, honey-pots, and agent provocateurs.

With police in Scotland delivering the caution that the procurator fiscal used to use from the first decade of the nineteenth century, along with a higher level of proof required to establish guilt, it cemented Scotland’s place in history as the country with the highest protection against self-incrimination in the world, and other countries started to take notice. An 1838 opinion in England declared that “[a] prisoner is not to be entrapped into making any statement” and that a magistrate should advise this suspect before taking his statement “that what he thinks fit to say will be taken down, and may be used against him on his trial.” A clearer doctrinal recognition of the right to remain silent came ten years later in Sir John Jervis’s Act. This Act provided that, before the pretrial examination, the accused should be cautioned that he need not answer and that if he did answer, his answers could be used against him at trial. The words the judge suggested be used came from the caution already in use in Scotland, and those were taken from those perviously used by the Procurators Fiscal before the police were formed.

Once this was established in English law, it spread through the British empire and other places where English law influenced the system. In the landmark 1966 US Supreme Court case Miranda v. Arizona, the Court ruled that police must advise arrested individuals of their rights—including the right to remain silent and the warning that “anything you say can and will be used against you in a court of law”.

The law moves on. Always has and always will, but the UK caution given now says, “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.” This change came in to cover ‘surprise’ alibis and exculpatory explanations that accused people would suddenly produce in the witness box that gave the investigators no time to examine properly. Yes, it was questioned as to why they had proof they weren’t there or couldn’t have done it, but didn’t speak up at the time, but a convincing actor could sway a jury without giving time for that new evidence to be investigated. The change made late submission of evidence somewhat more suspect, something some legal experts struggled with, as previously no inference could be drawn from silence.

And as convoluted as all that sounds, that is why the caution we’ve all heard is linked to the Scottish witch trials. It was the enlightenment, a move away from religious dogma and superstition, a need to stop unfettered vigilantism, education, a cultural shift, and a determination to look at the facts with reason and fairness and a rule of law that caused it to evolve. Recognising the cruelty and unreliability of tortured testimony, the Scottish legal system progressively dismantled these practices and developed robust protections against self-incrimination, establishing foundational rights that rang around the world. It hated the legacy of that injustice; Sir Walter Scott’s extensively researched seminal 1830 treatise, Letters On Demonology And Witchcraft, heavily criticised the early modern Scottish courts and the local kirk. He pointedly argued that the legal system’s reliance on judicial torture was barbaric, framing the hunts as a shameful infatuation and a stain on Scottish history Sadly, it’s unlikely that any of the people involved were real witches at all. They were just people who were inconvenient, off-beat, opinionated, or in the way.

On International Women’s Day in 2022, then-First Minister Nicola Sturgeon officially apologised at Holyrood, acknowledging the mass persecutions as an “egregious historic injustice”.