Law And The State Notes

REVISION NOTES:

WITCHCRAFT:

LAW AND THE STATE:

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.

Accusation:

• 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 Höllin, 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.

• E.g. Doctor Fian, ‘News from Scotland’ – tortured by having nails ripped off by device called a ‘Turkas’ or pincers, needles stuck under nails. Put in ‘bootes’ – ‘his leges were crushte and beaten togeather as small as might bee, and the bones and flesh so brused, that the bloud and marrowe spouted forth in great abundance’.

• E.g. Barbeline Wanesson found dead in her cell after several rounds of torture, Lorraine, 1593.

• Further interesting impact = “torture facilitated the formulation and the dissemination of the cumulative concept of WC” (Levack).

• E.g. in Eng, ideas about Sabbath less widespread (esp amongst elite) – for this reason acc to Levack.

• Sometimes, “confession was virtually dictated to the wretched suspect, alone in the face of a pitiless judicial process” (Briggs).

Centralisation of organisation:

• Link to growth of the state: encouragement by central authorities:

• Get idea that “witches were in a certain sense victims of the advance of that emerging leviathan” (Levack).

• Attempt to control society:

• Robert Muchembled talks of “cultural conquest of the humble”.

• V limited: argues that they aimed to make people better Tridentine Catholics “by defining precisely the diabolic figure” (Muchembled). Ignores fact that most cases involved simple maleficia – separation demonology – pop belief.

• C Larner:

• Cites the fact that 95% accused = peasants, due to state’s perception of own role as being in shaping Godly society.

• Needs to take into account fact that people could occasionally take into own hands.

• E.g. Basque (1610) – 1 woman killed, many tortured; e.g. 1453 French village of Marmande.

• Particular Kings could make special efforts to adapt law in order to prosecute witches.

• E.g. James VI of Scotland, after witchcraft ‘plot’ 1590.

• Was esp. worried – esp after Berwick trials. Agnes Sampson took him aside and told him the words that he had said to his wife on their wedding night.

• 1597: WC added to King’s writ (‘four pleas of the crown’ – robbery, rape, murder, arson).

• E.g. Christian IV of Denmark, 1626 (Copenhagen, Elsinore).

• CA: centralisation of organisation does not always result in biggest witch-hunts.

• In Scotland, the system was not that centralised.

• Were some elements: Privy Council and Justice Ayres (later Circuit Courts) = travelling courts.

• E.g. Hugo Arnot, C18th Edinburgh lawyer/historian: ‘there is no system of criminal jurisprudence in Scotland’.

• Regalities “in a sense represented...

Buy the full version of these notes or essay plans and more in our Optional 8: Witch-craft and Witch-hunting in early modern Europe Notes.