1. This approach is presented in the following works, among others; H. S. Becker, Outsiders (1963); K. T. Erikson, Wayward Puritans (1966); J. I. Kitsuse, Societal Response to Deviance; Some Problems of Theory and Method, 9 Social Problems 247-56 (Winter 1962); E. Goffman, Stigma (1963); and Asylums (1962). Earlier general statements in a similar vein can be found in E. M. Lemert, Social Pathology (1951); and F. Tannenbaum, Crime and the Community (1951).

2. One interesting study along these lines is E. M. Schur, Narcotic Addiction in England and America; The Impact of Public Policy (1963).

3. Erikson, supra note 1, discusses some aspects of witchcraft in America, which unfortunately cannot be discussed here without unduly lengthening the paper. For the curious, though, it should be noted that the American experience was in general much closer to the English than to the continental experience, particularly in terms of the small number of witches executed. For anyone interested in American witchcraft, Erikson's discussion and bibliography is a good place to start.

4. Elizabeth's statute of 1563 made witchcraft punishable by death only if it resulted in the death of the bewitched; witchcraft unconnected with death was a lesser offense. However, in 1604 James I revised the statute to invoke the death penalty for witchcraft regardless of result. On this point see R. T. Davies, Four Centuries of Witch Beliefs 15, 41-42 (1947).

5. Quoted in M. Murray, The Witch-Cult in Western Europe 22 (1962). Other early legislation is also quoted by Murray, and can also be found in C. L'Estrange Ewen, Witch Hunting and Witch Trials 1-5 (1929).

6. This position was formulated in a document known as the Capitulum Episcopi, apparently written in 1215, which molded Church policy for over 200 years. It reads in part as follows:

Quoted in 3 H. C. Lea, A History of the Inquisition in the Middle Ages 493 (1888), and in Murray, supra note 5, at 22.

7. The shift, however, did not take place all at once, nor did it take place without important ideological struggles both within and beyond the Church; a number of important figures remained skeptical throughout. Interesting materials on this process can be found in 1 H. C. Lea, Materials Toward a History of Witchcraft (1939).

8. Quoted in Davies, supra note 4, at 4.

9. This remarkable work has been translated. J. Sprenger & H. Kramer, Malleus Maleficarum (M. Summers transi. 1948).

10. This estimate is from G. L. Kittredge, Notes on Witchcraft 59 (1907).

11. Davies, supra note 4, at 25, 5-9.

12. Father Friedrich Spee, quoted in Kittredge, supra note 10, at 47.

13. Lea, supra note 6, at 549.

14. Quoted in G. Parrinder, Witchcraft: European and African 76 (1958).

15. Lea, supra note 7, at 244.

16. G. L. Burr, The Fate of Dietrich Flade, Papers of the American Historical Association, pt. 3, 11 (July 1891).

17. See A. Esmein, A History of Continental Criminal Procedure 8 passim (1913).

18. Id. at 9.

19. Id. at 8.

20. Id. at 128.

21. 1 H. C. Lea, A History of the Inquisition in the Middle Ages 405 (1958).

22. Esmein, supra note 17, at 622-23.

23. Id. at 625. It would still, of course, have been difficult to get even one reliable witness to an act of witchcraft; in practice, the testimony of one accused, under torture, was used for this purpose.

24. See Esmein, supra note 17, at 625. In a study of the criminal process in China, Cohen relates, in a similar vein, that the requirement of confession for conviction in Manchu China reinforced the temptation to use torture on the accused. See J. A. Cohen, The Criminal Process in the People's Republic of China; an Introduction, 79 Harv. L. Rev. 473 (1966). It should be noted that the employment of torture by the Inquisition was a retrograde step in continental criminal procedure. The Church explicitly condemned torture; after it had been used by the Romans, torture was not again a standard procedure in Western Europe until it was reactivated in the 1200s in the offensive against heresy. See Esmein, supra note 17, at 9. It was early laid down as an accepted rule of Canon Law that no confession should be extracted by torment; but the elimination of trials by ordeal in the 13th century, coupled with the rise of powerful heretical movements, put strong pressure on the Church to modify its approach. Originally, torture was left to the secular authorities to carry out, but a Bull of Pope Alexander IV in 1256 authorized Inquisitors to absolve each other for using it directly, and to grant each other dispensation for irregularities in its use. See Lea, supra note 1, at 421.

25. 2 Lea, supra note 7, at 854-55.

26. Lea, supra note 1, at 427-28; Esmein, supra note 17, at 113-14.

27. 2 Lea, supra note 7, at 885.

28. 3 Lea, supra note 6, at 506.

29. Id. at 514; 2 Lea, supra note 7, at 895. Deception by the court in witchcraft cases was widely approved. Bodin argued that the court should use lying and deception of the accused whenever possible; the authors of the Malleus Maleficarum felt that it was a good idea for the courts to promise life to the accused, since the fear of execution often prevented confession.

30. Esmein, supra note 17, at 91-94; Lea, supra note 21, at 434-37.

31. Esmein, supra note 17, at 129.

32. Lea, supra note 21, at 406.

33. Id. at 419.

34. Id. at 419.

35. Id. at 453. The following quote from the period shows one important motive behind the absence of outright release:

Quoted in Esmein, supra note 17, at 130 (emphasis added).

36. Esmein, supra note 17, at 91-94. This was particularly critical in continental procedure, where presumption of guilt made the defense difficult in any case; it was less critical in England, where the burden of proof was on the court. The Church well knew the vital importance of counsel in criminal trials; free counsel was provided, in many kinds of ordinary cases, to those unable to afford it. See Lea, supra note 21, at 444-45.

37. Sorenger & Kramer, supra note 9, at 218; Lea, supra note 21, at 444-45.

38. 2 Lea, supra note 21, at 517-18.

39. 2 Lea, supra note 7, at 858.

40. Lea, supra note 6, at 509.

41. Id. at 517.

42. 2 Lea, supra note 7, at 808-11; Lea, supra note 21, at 529.

43. The statute is 5 Eliz., c. 16 (1563); see Davies, supra note 4, at 15, for a partial quote of this statute; and p. 42, for a quote from James I's 1604 statute making witchcraft per se, without involving the death of another person, a capital offense.

An earlier statute (33 Hen. 8, c. 8 [1541]) made witchcraft a felony, but was repealed in 1547 and probably used only sporadically and for largely political purposes. Before that, too, there were occasional trials for witchcraft or sorcery, and witchcraft of a sort, as I have shown, appears in the earliest English law. But this was the older conception of witchcraft, blurring into that of magic; and it was not until Elizabeth's statute that witch trials began in earnest. See W. Notestein, A History of Witchcraft in England ch. 1 (1911).

44. Two of these circumstances may be mentioned. One was the general atmosphere of social and political turmoil surrounding the accession of Elizabeth to the throne; another was the return to England, with Elizabeth's crowning, of a number of exiled Protestant leaders who had been exposed to the witch trials in Geneva and elsewhere and had absorbed the continental attitudes toward witchcraft. One of these, Bishop John Jewel of Salisbury, argued before the Queen that

45. See Ewen, supra note 5, at 43. On the repeal of the witch laws, see 2 Sir J. F. Stephen, History of the Criminal Law in England 436 (1883).

46. See Esmein, supra note 17, at Introduction. Esmein notes the similarity between the politically-oriented Star Chamber and the typical continental court. A few cases of witchcraft, notably those with political overtones, were processed there; see C. L'Estrange ewen, Witchcraft in the star Chamber esp. 11 (1938).

47. Esmein, supra note 17, at 107, 336.

48. Id. at 3, 6.

49. Cf. Ewen, supra note 46.

50. Ewen, supra note 5, at 32.

51. Esmein, supra note 17, at 342.

52. Quoted in Esmein, supra note 17, at 361.

53. Id. at 342.

54. Ewen, supra note 5, at 58.

55. Torture may have been used on some witches in the Star Chamber. Notestein, supra note 43, at 167, 204 suggests that it may have been used illegally in a number of cases; nevertheless, torture was not an established part of English criminal procedure, except in the limited sense noted above. See Stephen, supra note 45, at 434; Ewen, supra note 5, at 65. It was allowed in Scotland, where, predictably, there were more executions; several thousand witches were burned there during this period. See G. F. Black, A Calendar of Cases of Witchcraft in Scotland, 1510-1727, 13-18 (1938); Notestein, supra note 43, at 95-96.

56. This discussion is taken from Ewen, supra note 5, at 60-71, and from remarks at various places in Notestein, supra note 43.

57. See M. Hopkins, The Discovery of Witches 38 (1928).

58. Quoted in Ewen, supra note 5, at 68; Ewen argues, though, that swimming alone was probably not usually sufficient evidence for the death penalty.

59. Id. at 68.

60. Forfeiture grew out of the feudal relation between tenant and lord. A felon's lands escheated to the lord, and his property also was forfeited to the lord. A later development made the King the recipient of forfeited goods in the special case of treason; this was struck down in the Forfeiture Act of 1870. See 1 F. Pollack & W. Maitland, A History of English Law Before the Time of Edward I 332 (1895). This is, of course, a very different matter from the direct confiscation of property for the court treasury which was characteristic of the Continent.

61. Self-sustaining control systems often view presumptive deviants as a source of profit. On a smaller scale, it has been noted that some jurisdictions in the American south have been known to make a practice of arresting Negroes en masse in order to collect fees. See G. B. Johnson, The Negro and Crime, in The Sociology of Crime and Delinquency (M. Wolfgang, L. Savitz, & N. Johnson, 1962).

62. Lea, supra note 21, at 529.

63. Lea, supra note 6, at 524; 3 Lea, supra note 7, at 1080.

64. Lea, supra note 7, at 1080.

65. Id. at 1075.

66. Id. at 1162.

67. Id. at 1177-78.

68. Id. at 1080.

69. Burr, supra note 16, at 55.

70. Id. at 55, fn.

71. 3 Lea, supra note 7, at 1163.

72. Id. at 1177-78.

73. Lea, supra note 21, at 523-27.

74. Lea, supra note 7, at 235.

75. Burr, supra note 16, at 29, 34.

76. Id. at 19.

77. This fact is graphically presented in Burr's chronicle of Dietrich Flade, a powerful court official at Trier whose ultimate execution for witchcraft was apparently in part the result of his failure to zealously prosecute witches in his district.

78. That a greater percentage of wealthy witches did not appear is due in part to the fact that wealthy families often paid a kind of “protection” to local officials to insure that they would not be arrested. See 3 Lea, supra note 7, at 1080.

79. Id. at 1081.

80. Id. at 1173-79. In part, also, the decrease in arrests was due to the occupation of the area by an invasion of the somewhat less zealous Swedes.

81. Parrinder, supra note 14, at 79.

82. It should be stressed that quite probably, a number of people, both in England and on the Continent, did in fact believe themselves to be witches, capable of doing all the things witches were supposed to be able to do. Some of them, probably, had the intent to inflict injury or unpleasantness on their fellows, and probably some of these were included in the executions. This does not alter the fact that the designation of witches proceeded independently of such beliefs, according to the interests of the control systems. Some students of witchcraft have suggested that the promotion of witch beliefs by the official control systems provided a kind of readymade identity, or role, into which some already disturbed people could fit themselves. This is a more subtle aspect of the creation of deviance by control structures, and has, I think, applicability to certain contemporary phenomena. The images of deviance provided by newspapers and police may provide a structured pattern of behavior and an organized system of deviant attitudes which can serve as an orienting principle for the otherwise diffusely dissatisfied.

83. See Hopkins, supra note 57. This is a reproduction of Matthew Hopkins' own manual for the discovery of witches.

84. Ewen, supra note 5, at 62.

85. Id. at 62.

86. Quoted in Black, supra note 55, at 59. This is apparently unusual for a Scottish trial, since these methods of evidence were less crucial, given the frequent use of torture.

87. Ewen, supra note 5, at 63.

88. Hopkins, supra note 57, at 45. Summers, the editor of Hopkins' work, denies that Hopkins was drowned in this fashion. Hopkins' pamphlet includes a lengthy question-and-answer defense of his trade, part of which reads as follows: “Certaine queries answered, which have been and are likely to be objected against Matthew Hopkins, in his way of finding out Witches. Querie 1. That hee must needs be the greatest Witch, Sorcerer, and Wizzard himselfe, else hee could not doe it. Answer: If Satan's Kingdome be divided against itselfe, how shall it stand?” Id. at 49.

89. On “cunning folk” generally, see Notestein, supra note 43, at ch. 1.

90. Cf. Ewen, supra note 5, at 112; Kittredge, supra note 10, at 59.

91. Ewen, supra note 5, at 100.

92. Notestein, supra note 43, at 82.

93. Ewen, supra note 5, at 102-108. Also, cf. the list of English witches in Murray, supra note 5, at 255-70.

94. See Davies, supra note 4, at 182-203.

95. An incident supposedly involving the anatomist, William Harvey, is indicative of this change of opinion. Harvey, on hearing that a local woman was reputed to be a witch, took it upon himself to dissect one of her familiars, which took the shape of a toad; he found it to be exactly like any other toad, and a minor blow was struck for the Enlightenment. See Notestein, supra note 43, at 111.

96. On mental illness, see the various works of, among others, T. Szasz. In the case of drugs it may be argued that the discrepancy between the legal and medical definitions of marijuana use bespeaks the existence of a sizeable element of official invention.

97. Strictly speaking, this discussion would have to be backed up by data throwing light on the treatment of murder under different control systems; it is therefore to be considered speculative. Common sense, though, suggests that there is something peculiar about crimes like witchcraft which probably makes for a profound impact on the character of social control.

98. By visibility I refer to consequences primarily, rather than commission. Proof of homicide generally requires a body, which is a highly visible thing. Offenses which unlike witchcraft, have reference to an act which is real but of low visibility—such as heresy or thought—crimes generally, and some of the “victimless” crimes—create many of the same consequences for control systems as do invented offenses. Again, this is largely because their commission is so difficult to establish through ordinary means that extraordinary means may need to be invoked, and if that is done, not only does the character of the control system change, but the offense now become virtually impossible to disprove. As a consequence, the official incidence of the offense can vary greatly depending on the interests of the control system.

99. The remarks above apply here as well. This, of course, is an important factor in the rejection of legal control of mental acts by democratically inclined people.

100. As indicated above, I believe this may be at least partially true of definitions of mental illness and of drug addiction. It is also perhaps relevant to certain kinds of political offenses built on the notion of “subversion,” and on certain peculiar categories of juvenile justice, such as the notion of “incorrigibility,” among others.

101. Under the system of expanded control during the politically harsh years 1949-1953 in Communist China, approximately 800,000 political deviants—“counterrevolutionaries,” “class enemies,” and so on—were liquidated. See Cohen, supra note 24, at 477-78.

102. Special agencies of enforcement or prosecution within the context of a generally restrained system may, of course, develop vested interests of this kind, but their effect is limited by the nature of the larger system. For an example of this, see discussion of the enforcement of marijuana laws, in Becker, supra note 1, at 121-46.