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Law And The State Notes

History Notes > Optional 8: Witch-craft and Witch-hunting in early modern Europe Notes

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1. What was the impact of the law and legal processes upon witchcraft prosecutions?

- Big debate = did the law, encouraged by the rise of the state, facilitate WC prosecutions.
- Yes, to an extent, it did facilitate it. However, this depended on interpretation.

- Prev 'accusatorial' system made prosecution diff.Criminal procedure initiated and prosecuted by private person (usually injured).Formal, public statement made ? trial with judge.Admission of guilt/sufficient proof = guilty.Doubt = appeal to God to provide proof of guilt/innocence.
- Most common way = ordeal. E.g. carrying hot iron a certain distance and have flesh miraculously healed, e.g. being thrown into cold water and sink to bottom = innocent.
- Could be through duel with injured party.
- Or trial by compurgation - have trial with certain number of 'oath-helpers' who would swear to innocence.
- "Man in effect abdicated his own responsibility" (Brian Levack).Key prob = if defendant proved innocent, accused could be liable to prosecution - Roman trad of lex talionis."A fundamentally non-rational process" (Levack).
- New, inquisitorial system made accusation more likely:Trials could (many were) still be initiated by private persons.Inhabitants of community could denounce suspected criminal to authorities.Also allowed officers of court to initiate cases based on their own info, e.g. rumours: "made individuals vulnerable to frivolous, malicious, politically motivated or otherwise arbitrary prosecutions" (Levack).

"The main effect... was the elimination of the liability of the accuser" (Levack).Not the case in England; kept much of old system. Could be reason for relatively low rate.
- E.g. Hathaway, 1702 - accused Sarah Morduck of Southwark of bewitching him so that he could not eat. She was trialled and acquitted. Judged guilty. Torture and investigation methods:
- New inquisitorial system had impact by ^ requirements for evidence (no longer used divine influence):Standard = testimony of 2 eye-witnesses or confession.Also, crimes like going to Sabbath = only proven once another witch had confessed.In some cases, jurisdictions used torture to get around this.Rise of torture:Since WC was a 'crimen exceptum'.
- "The concept of crimen exceptum allowed a ragbag of assorted rumours to become evidence justifying torture" (Briggs).Re-introd in C13th: had been used in ancient Greece and Rome.
- First evidence = Verona, 1228. Many other Italian states soon followed.
- 1252: Church allowed use of torture in ecclesiastical courts (Pope Innocent IV) - esp for suspected heretics.
- Was governed by a set of rules:
- Original, strictest rules said that judge had to prove that a crime had been committed. Had to be only way to establish facts. Repetition (on diff days) = forbidden. Use of leading q's forbidden. Had to repeat 'freely' w/in 24 hours.
- Levack argues that these were not followed: if they had been, "the European witch-hunt would not have taken place".Is not a problem inherent in the law itself, but in its interpretation.
- Most jurisdictions did have laws limiting intensity, hence utility of items like the 'strappado' and thumbscrews.
- In some areas, were freq suspended.
- E.g. trial of Maria Hollin, 1593: kept torturing with boots, rope and thumbscrews (22 times total) despite repeatedly confessing some knowledge, saying killed a boy once, made pact w/ Devil, then professing innocence.

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