The crimes of sorcery and witchcraft in modern Europe: several remarks about the origins of their legal punishment and other particularities
María Jesús Torquemada
Universidad Complutense de Madrid
Since a man cannot live without miracles, he will provide himself with miracles of his own making.
Fyodor Dostoyevski. The Brothers Karamazov.
Summary: 1. Foreword. 2. The starting point. 3. The Modern period. 4. Conclusions
1. Foreword
This subject, as everybody knows, has been approached from many different points of view. Even the terminology about it seems to be confusing. Also the methodology used in order to look into the matter varies depending on the different fields, periods, areas, etcetera.
It should be studied also from the point of view of Legal History as these practices were for many centuries considered a crime and, therefore, liable to legal punishment. This crimi nal consideration also accounted for the large number of people executed for the sake of a particular belief.
Several points must be emphasized before studying witchcraft and sorcery in Europe: —The belief in witchcraft is as old as the belief in magic, and it still exists, but the former tended to be considered a crime that, unlike other offences, like murder or theft, for instance, is not considered a crime in itself any more.
—The subject of witchcraft and superstition should not be studied in an isolated way, because it always appears connected to many other fields, such as politics, religion, economy, medicine, etc. All of them are only one part of the whole reality around witchcraft.
—The practice of sorcery and witchcraft has existed throughout the ages and in every European country.
—The prosecution of this sort of offence has been carried out in a similar although not identical way in different European areas.
—The features of criminals who were accused of this offence as well as the objects, mate rials and rituals involved in the practice of sorcery and witchcraft are strikingly similar for all the countries and periods. The same can be said in what concerns the active and passive victims.
2. The starting point
When and where did the prosecution of witchcraft start to take place? It is generally belie ved that the prosecution of witchcraft and superstition in Europe started during the Middle Ages, when ecclesiastical authorities set out to eliminate the menacing heresies of the Cathars and the Albigensians that appeared in the south of France during the late Middle Ages and peaked in the 13th century. Those heretics strongly believed in the duality good-evil, which
—1587—
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is also the basis for the belief in witchcraft, and it represented a serious threat for the rulers’ interests at that time. However, lots of people had already been sentenced to death in Europe before the 13th century for trying to contact the occult and the supernatural.
The Old Testament includes the sentence «Thou shalt not suffer a witch to live»21. The Roman laws from the Twelve Boards22 onwards also punished maleficium with the death penalty, carried out with very gruesome methods and instruments23. What we call «White magic» was, however, permitted by the law24. It mainly dealt with healing, fortune telling, and finding lost property.
It is important to highlight that Roman prohibitions against magical ceremonies were based not only on religious grounds, but also on the belief that many deaths could result from the substances and methods involved in the practice of spells. In fact, the laws punis hing maleficium were inserted along those relating the crime of veneficium, enacted against wilful poisoning.
Taking this legislation into consideration, it would seem that, legally speaking, religious aspects are less important in Roman times than the merely physical ones. No clear reference to devils or bad spirits can be found among these laws. Only from the barbarian law codes onwards did the spiritual and religious approach to these crimes become more and more evident25.
Later, the local statute-laws created during the early Middle Ages often included several titles about the so-called «sorcerers and herbers» along with the regulation of bawdry (pro curers of sex services). The judicial system at these times left behind the roman tradition and inserted many Germanic elements, such as the evidence obtained through ordeals, because of the hidden nature of those crimes, and they were punished by both general and local laws26.
Consequently, the late Middle Ages cannot be considered the beginning of the perse cution of witchcraft in Europe at all. The only innovations in the witch-hunts during the thirteenth century were the growing centralisation of that hunt, and the use of the recently unified canon law to judge the accused.
3. The Modern period
There has been an increasingly interesting scholar research on these centuries. Lots of pages have been written so far about this period in history. The obvious reason is that the greatest witch-hunts took place during that time. Consequently, there are more documents from that period.
The list of these works would be too large to bring to these pages. However, several spe cialised monographic references should be mentioned, like Brian p. Levack’s work entitled
21 Exodus, 22, 17.
22 Plinius the Old. Naturalis Historia, 28, 2. 10-17.
23 Codex Theodosianus, 9, 16, 6 : «…sit eculeo deditus ungulisque sulcantibus latera perferat…». 24 Corpus Iuris Civilis, Codex, 9, 18.
25 Codex Theodosianus 9, 16, 4 and its interpretation in Alaric’s Code known as the Breviarius, dated 506, ix, 13,1: «Interpretatio: Malefici vel incantatores vel immissores tempestatum vel ii qui per invocationem daemonum mentes hominum turbant, omni poenarum genere puniantur».
26 J. Gaudemet: «Les Ordiales au Moyen Age: Doctrine, legislation et practique canoniques» La Preuve. Recueills de la Societé Jean Bodin. Vol. xvii. Bruxelles, 1965. See also: H. C. Lea. The Ordeal. Philadelphia, 1973.
the modern period 1589
The Witch Hunt in Early Modern Europe27, or The Athlone History of Witchcraft and Magic in Europe, consisting of six volumes about different periods28, which offer an overall approach to the subject, the same as A. Barstow’s work Witchcraze. A New history of the European Witch Hunts29, or W. Monter’s European Witchcraft30. Other partial works have been devoted to particular areas in Europe, as for example K. Baschvitz’s Hexen und Hexenprozesse31, regar ding the Germanic tradition. C. Larner approached the English and the Scottish witchcraft in her work Witchcraft and Religion. The Politics of popular Belief32. Spanish witchcraft was studied by Gustav Henningsen in The Witches’Advocate. Basque Witchcraft and the Spanish Inquisition33. The same author in collaboration with B. Ankarloo edited a book entitled Early Modern European Witchcraft: Centres and Peripheries34. J. Tedeschi published The Pro secution of Heresy: Collected Studies on the Inquisition in Early Modern Italy35. As for the phenomenon in Poland, B. Baranowski’s Procesy czarownic w Polsce w xvii i xviii wieku is still the main reference36.
French research on the topic has systematically focused on regions, hence the lack of a general work about witchcraft in France. The same could be said about many other European countries. The list of these works concerning some particular places is endless.
An interesting fact is that, although literary sources very often refer to the practice of witchcraft and sorcery in Modern Greece, I could not find any particular work relating to an official witch-hunt in this country. M. Longueira37 explains that the phenomenon may be due to the lack of Catholic or Protestant structures of power. Only these were concerned about the underlying threat that the practice of superstitions could involve for western Eu ropean rulers.
In any case, most of the mentioned works have focused on sociological, religious or poli tical aspects, but very few of them have tackled the task strictly from the legal point of view. However, the practice of witchcraft and sorcery was considered a crime until the 19th cen tury. Therefore, I consider that the legal aspect should never be overlooked.
Although I do not think this is an occasion to deal with the features of the witchcraft offence in depth, I would like to highlight several points that ought to be considered in order to study the legal implications of sorcery and witchcraft in European history.
1. First of all: what is the legal difference between witchcraft, superstition, sorcery, magic, etc.? Several distinctions can be made between all these terms from the social, political and
27 Pearson Education, 2006.
28 B. Ankarloo. and S. Clark, (Eds.) The Athlone History of Witchcraft and Magic in Europe, 6 vols. (London: Athlone Presss, and Philadelphia: University ofr Pennsylvania Press, 1999-2002): vol. 1, Ed. H. Cryer, and M.L. Thom sen, Biblical and Pagan Societies (2001); vol. 2, Ed. V. Flint, Ancient Greece and Rome (1999); vol. 3, Ed. K. Jolly, C. Raudvere, and E. Peters, The Middle Ages (2001); vol. 4, Ed. B. Ankarloo, S. Clark, and W. Monter, The Period of the Witch Trials (2002); vol 5, Ed. M. Gijswijt-Hofstra, B. Levack, and R. Porter, The Eighteenth and Nineteenth Centu
ries (1999); vol. 6, Ed. de W. Blécourt,, R. Hutton, and J. La Fontaine, The Twentieth Century (1999). 29 New York, 1994.
30 New York, 1969
31 München, 1963.
32 Blackwell, 1984.
33 University of Nevada Press, 1980.
34 Oxford, 1990.
35 New York, 1991
36 Lodz, 1952.
37 «Magia y brujería en algunas novelas de Viziinós y Karkavitsas». Más cerca de Grecia. 14, 1998. pp. 89-104.
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religious point of view. Levack38, for instance, explains that magic tries to change nature by means of certain actions, substances or ceremonies that do not necessarily involve religion, whereas superstition and witchcraft include the use of religious elements in order to get a particular result.
All kinds of practice dealing with the supernatural were prohibited from the Middle Ages onwards. The courts entrusted with the persecution and punishment of people who prac tised occultism would judge them, disregarding whether spells were performed in order to get good or evil objectives.
The distinction between mere superstition and witchcraft became of the utmost impor tance for the legal consideration of these crimes by European courts. Mere superstition could be practised by invoking the saints, praying to them, to God or to the Virgin Mary, in addi tion to the use of certain substances and objects reputed magical. This was only considered
a false belief that ought to be duly controlled and punished, encouraging conjurers to return to the orthodox religion.
Much more serious was the invocation of the devil while performing a magic ceremony. This was the core of the crime of witchcraft considered as the perfect heresy that involved renunciation of God and adoration of the demon.
Treatises from the Middle Ages onwards recommended the death penalty in these cases. Civil as well as Episcopal and Inquisitorial courts acted according to this principle throug hout the centuries.
I would like to stress the idea that involving the devil was considered perfectly heretical witchcraft by all European courts, even if the pursued objectives of the invocation were es sentially good. At least for the Spanish Inquisition, the fact that the finality of the spell was a good thing, like, for instance, to heal someone, did not offset heresy when the demon was proved to have been invoked. Thus, authorities pursued not only the so called maleficium, but also any other sorts of demonic magic.
2. Secondly, the crime of witchcraft and superstition was persecuted and prosecuted by different authorities in Europe, both temporal and religious. On the one hand, temporal powers fought this practice by means of central as well as local courts, the former being more accurate legally speaking and less cruel than the local ones. On the other hand, the Church had its particular courts in order to pursue this kind of heresy. There was a so called «Medie val Inquisition,» which basically consisted of entrusting the bishops with the prosecution of heresy. It was created to fight against the heretic theories of the Cathars and the Albigensians that arose in Southern France during the 11thcentury and flourished throughout the 13thcen tury. Bishops were in charge of this crusade which extended to other European regions. The «Papal Inquisition» took over from the bishops when these proved to be negligent against the heretics. The bule «Excommunicamus», promulgated by Gregory IX in 1231, set up this new papal inquisition.
That inquisitorial court was never established in Spain, with the exception of the area of Aragon, where the outstanding inquisitor Eymerich was born. He was the author of a fa mous book entitled Directorium Inquisitorum in the 14th century. Other Inquisitions would appear later: the Spanish Inquisition was set up in 1478, and was entrusted with the crime
38 B. Levack, The Witch Hunt in Early Modern Europe. Pearson Education. 2006. p. 4.
the modern period 1591
of witchcraft only a few years later. The so-called Roman Inquisition would be born in the middle of the 16th century. All of them had to deal with the offence of witchcraft along with the temporal justice, as it was considered a mixti fori39 crime.
In spite of the general belief disseminated by the promoters of the Black Legend, inquisito rial proceedings were proven to be much more lenient than the temporal ones. That is so be cause, traditionally, these temporal courts, and especially the local ones, used the accusatory instead of the inquisitorial system. The accusatory method involved the direct participation of laymen in the lawsuit and therefore the accused were scarcely provided with legal guaran tees. Moreover, those local judges were very often pressured by their scared neighbours to pass death sentences against the alleged witches.
Thus, the number of executed people was lower in countries where the political or eccle siastical power was more centralized, as in the case of France or Spain. Although the latter country was divided into several kingdoms and parliaments, the Spanish Inquisition was strongly centralised, and the Supreme Court of Madrid controlled every lawsuit taking place in the district inquisitorial courts.
On the contrary, in Germany, where political power was shared by a large number of princes and landowners, the accused were convicted upon very feeble evidence, and around 25000 people were executed.
In Spain, whose inquisitorial system lasted until the first third of the 19th century, the victims killed for practising witchcraft were 59, only to set an example. Both Inquisitorial Spanish and Roman courts were much more punctilious about pro cedural rules established by the Ius Commune, a compilation born in Bologna during the late Middle Ages. It merged canon law and roman legal tradition, and was implemented to become the legal system for the Holy Roman-German Empire.
The Polish prosecution of witchcraft has been pointed out by several authors as a parti cular case. The witch-hunt became very intense in the late 17th century, and it peaked in the first quarter of the 18th century, which is a very late period. Some historians40 attribute this phenomenon to several factors, like the import of demonism from Germany, the lack of a central control of the lawsuits, and the use of torture without restrictions. Polish people star ted to believe late but intensely in the maleficium caused by means of a pact with the devil. The fact that the Malleus Maleficarum was translated into Polish in the early 17th century also contributed to spread the witch-craze.
Most trials took place in local courts, in spite of a law dated 1543 entrusting witchcraft cases to religious courts. Other laws were enacted by the royal power in 1672 and 1713 in or der to control local authorities, without any success. Moreover, from the second half of the 16th century onwards, local courts succeeded in ignoring the prior ecclesiastical monopoly regarding these crimes. That way, the rise of executions in Poland was contemporary with the decline of religious justice. There was not any protection for indicted people. They would not know about the proof, were denied defence lawyers and were also heavily tortured.
39 Both temporal and ecclesiastical authorities could prosecute and punish these crimes.
40 B. Baranowski (Procesy Czarownic w Polsce w xvii i xviii wieku, Lodz, 1952 p. 179), J. von Tazbir («Hexenpro zesse in Polen». Archiv für Reformation Geschrichte, 71, 1980. pp. 280-281) and B. Levack (The Athlone History of Witchcraft and Magic in Europe. Vol. v. London, 1999. pp. 68-69), for instance.
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According to Marijke Gijswijt-hofstra41, Schiffmann, D. C.42 and Klaniczay, B.43, the last witchcraft execution took place in 1776.
Gijswijt-hofstra44 points out that in Poland, misfortune in form of sicknesses of people and animals kept on being attributed to witchcraft during the 20th century. Levack45 underlines that lynching in Poland may have accounted for as many as half the total number of witchcraft executions, but this estimation cannot be confirmed as many procedural records are incomplete. In any case, although the figure of 10000 legal executions could be excessive from some scholars’ point of view, even if this figure were lowered by half, it would still be twice the number of victims in the British Isles and Scandinavia together. However, the main question is still why the witch-hunt started much later in Poland than in Germany. The reason seems to be the sudden devastating wars that took place during the Cossack rebellion in 1648 and the first war against Sweden and Russia between 1655 and 1660. In the long run, the devastation caused by these wars provoked the necessary social conditions previous to mass witch-hunting, as illness and misfortune were often identified as products of witchcraft.
Another possible reason was the change in which concerns religious mentality, when the Catholic majority started being intolerant toward the Protestant minority. Both religious dissidence and witchcraft were forms of heresy, and the harder persecution of the former could bring along the harder persecution of the latter, everything in order to stress the Ca
tholic supremacy.
3. The third point to highlight concerns the different legal regulations for witchcraft and superstitions.
a) As stated above, the political authorities had judged witchcraft for many centuries before the Middle Ages. All along European history, civil rules had been much stricter and less accurate than canon laws. They used to be local or particular statutes applied in very restricted areas by laymen who usually ignored the legal technique and procedural guaran
tees in a period when localism had taken over Europe. The evidence was very often obtained through early medieval methods such as ordeals (particularly the red-hot iron). Therefore, the persecution in those surroundings was more brutal, and a chaotic handling of witchcraft was unavoidable.
b) As regards religious regulations, they were set up in a much more technical way by the creators of the Roman-canon Law. The rules for the prosecution of witchcraft were inserted in the Liber Decretalium released by Gregory IX in 1234. This was considered for several centuries the main ecclesiastical code in Europe. An inquisitorial system was thus establis
hed for the persecution of witchcraft in religious courts. Admitted evidence would mainly consist of witnesses’ statements and the defendant’s confession. False testimony would also be seriously punished. Some of the basic principles contained in this Roman-canon tradition were inserted in the inquisitorial legislation.
41 The Athlone History…Vol. V, cit. pp. 59-160.
42 «The Witch and crime: the persecution of witches in twentieth-century Poland» arv. Scandinavia yearbook of Folklore, 43, 1987. pp. 147-165.
43 «Buchers Tardifs en Europe centrale et orientale.» R. Muchembled. Ed. Magie et sorcellerie en Europe du Mo yen Age a nos Jours. Paris, 1994. p. 221.
44 The Athlone History of Witchcraft and Magic…Vol. V, cit. p. 159.
45 The Athlone History…Vol. V. cit. p. 84.
the modern period 1593
The Spanish Inquisition created a flawless set of rules in order to detect, judge, and punish heresy. This was in many aspects mirrored by other countries like Italy from the establishment of the Roman Inquisition in 1542.
The Spanish inquisitorial rules added to the basic Roman-canon system and to some par ticular elements developed by the early General Inquisitors, known as the «Instructions», intended to be a framework for the proceedings against heretics. There were also decrees en acted by the Suprema (Supreme Court) and the Cartas acordadas (agreed constitutions). In quisitorial custom became also more and more important in everyday practice over the years.
The so-called Instructions for Commissaries were released for particular offences, and such was the case of witchcraft and superstition. In these instructions inquisitorial officers were taught the way to spot the criminals, conduct the interrogation of suspects, witnesses, etc.
Regarding the crimes related to the supernatural, laws were accurately applied by the Spa nish Inquisition, and hardly ever torture was used during the procedure to get the alleged witches’ confession. The records of lawsuits for witchcraft in Spain are the reflection of the inquisitors’ enormous accuracy when it came to following the procedural rules.
Why was torture hardly ever used during the witchcraft lawsuits in Spain? It has been said that this is the result of the extended belief that the devil could help witches overcome torture, but it cannot be the main reason. Inquisitors in Spain proved to be rather sceptical with regard to witchcraft since the report drawn up in the early 17th century by Salazar, an inquisitor who was sent to the Basque Country during a witchcraft-craze outburst in order to get some information about what was happening there. This report, studied in depth by Henningsen in The Witches Advocate (1980), included the following sentence: «There were neither witches or bewitched until some people started to speak and write about them».
That approach to the problem summarises the later behaviour of the Spanish Inquisition towards the crime of witchcraft. They were more concerned about the misunderstanding of orthodoxy than about the maleficium.
Through the contents of that document we can easily deduce that they considered the alleged witches as poor ignorant people.
Moreover, the people accused of witchcraft were usually mature or old women, too weak to put up with torture from the point of view of the doctor who, only according to the rules of Spanish Inquisition, had to be present during the torture session to avoid the offender’s death as a consequence of excessive corporal pressure. The guidelines advised against tortu
ring the alleged witches. This warning was systematically followed by inquisitorial courts.
4. Gender differences
The Malleus Maleficarum46 explains the reasons why witchcraft is more attached to wom en than to men: «cur magis foeminae superstitions reperiantur: Quo ad primum cur in sexu tam fragili mulierum maior mulitudo maleficarum reperitur quam inter viros;…De secundo… (vires) de mulierum vero militia differitur: non est ira super iram mulieris…; tertia causa quia lubricam habent linguam…Concludamus: omnia per carnalem concupiscentiam, quae quia in eis est insatiabilis…Unde et cum Daemonibus causa explendae libidinis se agitant. Plura haec de duci possent, sed intelligentibus satis apparet, non mirum quod plures reperintur infecte haeresi
46 H. Kramer and J. Sprenger, Malleus Maleficarum, Lyon, 1569. Ediciones Floreal Mazía. Buenos Aires, 1975. p 40.
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maleficorum mulieres quam viri. Unde et consequenter haeresis dicenda est non maleficorum, sed maleficarum, ut a patiori fiat denominatio. Et benedictus altissimus, qui virilem speciem a tanto flagitio usque in praesens praeservat : in quo utisque cum sic pro nobis nasci et pari voluit ideo et ipsum privilegiavit.
The summary of the paragraph, inserted in the fifth question of the first part, states that «women are more credulous and more emotional. They love or hate. They don’t have a middle term. They have a quick tongue. Briefly, they are weaker of body and mind…that is the reason why they are more prone to abjure faith…all witchcraft comes from sensual lust, of which women are greedy…as a consequence of all that, it is better to name it witches’ than wizard’s heresy, and may be blessed the one who has preserved the male gender from such a horrible crime».
Such was the authors’ mentality when the Malleus was first published. The idea of fragili tas seu imbecillitas sexus, coming from the ancient Roman law, was inserted in the medieval Canon law and persisted during the Early Modern times.
But this idea was wrong. Everyone knows that there have been female and male conjurers throughout the European history and everybody can even nowadays notice the difference in meaning between witch (evil), and wizard (normally good). Therefore, I will briefly refer to male or female sorcerers. There is a striking difference between them in what concerns their technique and psychology.
However, the Malleus was right in one aspect. At least according to the records of the Spanish Inquisition, women used to be much more credulous than men. Both female sor cerers and their female victims really believed that the supernatural was involved in spells and superstitious ceremonies, whereas male performers of magic eventually turned out to be mere swindlers who took advantage of others’ ignorance in order to get material profit.
Very little research has been done so far on this subject in other European countries, but my guess is that the final outcome would be the same as in Spain.
Women, contrary to men, certainly believed in what they practised, and they even some times thought that they themselves were some kind of a «saint» gifted by God to be able to carry out «miracles». Such is the case of a woman known in the South of Spain as «Catalina the Saint», reputed to be a living saint by her neighbours and also by herself47.
On the contrary, there is another case also included among the inquisitorial records of Se ville, where a male sorcerer systematically swindled other men by means of a strikingly clever trick that he was able to carry out even while he was imprisoned in jail. It roughly consisted in launching some letters through the small window of the prison. Those letters said that he knew the way of getting a large amount of money by magical means, but he could not go and find the treasure as he was imprisoned. He, of course, had an accomplice outside who was to celebrate an elaborated ceremony in the company of the victim. The victim would take along some gold and silver objects so that the treasure could be properly detected. At a given moment during the ceremony, that victim lost sight of their gold and silver items, while the accomplice took advantage of the fact to substitute them for other similar but worthless. This clever individual had thus swindled a lot of men under false names and identities.
47 M. J. Torquemada, La Inquisición y el Diablo. Supersticiones en el Siglo xviii. Sevilla, 2000, pp. 117-127.
circumstantial evidence of the crime 1595
I couldn’t identify any believer sorcerer man among the documents. They were very diffi cult to persecute because all of them led a nomadic life to escape justice and used faked identity documents.
There is another interesting feature related to gender. Male or female sorcerers were sum moned depending on their «client’s» objective. According to the examined documents, men and women conjurers were entrusted with dissimilar businesses. When it came to get ting wealth and money, most of the people required the services of male sorcerers. But when
the problem consisted of sicknesses or love affairs, women dealt with the matter. Such was the tradition at least in the Mediterranean countries. This can be again because of the psy chological difference between women and men. Women were considered to be less attached to the material goods, and more concerned about human feelings and health matters.
5. Circumstantial evidence of the crime
This is one point that has been strongly stressed by the medieval and early-modern doc trine in order to enable inquisitors and other authorities to detect the practice of witchcraft. There were many treatises written from the Middle Ages onwards by authors specialised in theology. They were used by both religious and temporal authorities to find out the tracks of forbidden practices.
Probably, the most famous was the Malleus Maleficarum or Hammer of Witches, written by Kramer and Sprenger between 1482-1484. It was translated into almost every language in Europe, and was considered to be very useful for those who were entrusted with the persecu tion of witchcraft. It also helped extend the witch-craze because of its fanatical contents. This was the reason why in 1538 the Supreme inquisitorial court in Spain warned the subordinate inquisitors not to believe in all that was written in that book48.
Less famous but more balanced were other works released by authors like Eymerich, who se Directorium, written in the 14th century was updated by Peña in the 16th century. There were other books published by theologians like Carena, or Bodin, with his demonological treatises, Grillandus, Ciruelo, etc. In these treatises, the number of elements that pointed to a possible adoration of the devil was increasing over the years.
What did these pieces of evidence consist of ? There were a large and varied number of them. Let us enumerate some: the use of sacred items, such as holy water, sacred hosts, pieces of stone torn from the walls or the altars of churches, bones of corpses, black candles, magnet stone, scissors, rings, sieves, mirrors, etc. Stuffs like the animal or menstrual blood, bowls containing water, hairs. Actions such as dressing up animals like toads, for instance, bapti sing images or re-baptising people, drawing circles on the floor, breakfasting for a long time, systematically wearing black or white clothes, the sacrifice of black animals, etc. Many lists were inserted on the treatises mentioned above. These and many more things were enough to start legal proceedings against the accused.
Most of those objects and ceremonies have been repeated along the European history and countries. Let’s remember, for instance, Snow White’s tale, where the wicked stepmother used a magic mirror to get clear-sightedness, and let’s also remember that one of the most
48 The Athlone History of Witchcraft and Magic in Europe, cit. V. III, Witchcraft and Magic in Europe: The Middle Ages by Jolly, Raudvere and Peters, Eds. 2002. p. 241.
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important papal bulls against sorcery was entitled Super Illius Specula, enacted by John XXII and dated 1326.
Many of these items and ceremonies are still used for the practice of magic. 6. What made the real difference between the different jurisdictions and countries was the punishment.
Since ancient times, the death penalty had been considered the appropriate punishment for witchcraft. The ways and systems to apply this punishment have varied throughout the history in the different countries, as well as the amount of people who were sentenced.
Although just one execution would have to be considered one too many from the perspec tive of our current social mentality, great differences between European regions can be noti ced when approaching the subject from the point of view of Legal History. Those countries where the inquisitorial machinery was set up were more lenient, and very rarely sentenced the practice of witchcraft to death. Levack49 states that Italian, Spanish and Portuguese in quisitorial courts were reticent to punish witchcraft by death penalty. This was so, according to this author, because inquisitorial regional courts were intensely supervised by the central authorities. The Malleus Maleficarum was strongly criticised in Italy from the 16th century onwards mainly owing to raising Humanism, and we mentioned above the warnings made by the Spanish Inquisition regarding this particular treatise.
The strict procedural rules that were in force in Italy, Spain and Portugal during the harsh European witch-hunt, were another reason for the relative leniency of the prosecution in these countries.
Torture was very rarely ordered for these offences during the inquisitorial lawsuit. Legal tradition and treatises advised against it. In accusatorial systems torture was lavishly applied and it accounted for the death of quite a few alleged witches, who perished, not as a result of a death sentence, but because of the excess of corporal strain.
According to the research done by Gustav Henningsen, the number of the victims in so me European countries was the following: Portugal, 4; Italy, 36; Spain, 59; The Netherlands, 200; Hungary, 800; Danemark-Norway, 1350; England-Scotland, 1500; France, 4000; Swit zerland, 4000; Poland-Lithuania, 10000; Germany, 25000.
The reasons for the large number of executions in Central and Northern Europe were, on the one hand, the lack of a central power that controlled the local justice, and on the other hand the lack, as well, of a thorough legal system that ensured a minimum of procedural guaranties for the accused.
In England, the persecution of witchcraft was lessened by the geographical isolation. The idea of the demonic pact did not cross the Channel until the 17th century. This circumstan ce, together with the fact that torture could rarely be used during the lawsuit, seems to have saved many lives in that country. The belief in witchcraft and mainly in maleficium caused by means of sorcery was not extended in England.
That was different in Scotland, where the persecution of witchcraft was much more vi rulent than in England. The free application of torture in that country was an important element to illustrate this fact. Also the religious unlikeness between England and Scotland accounts for the greater number of Scottish victims.
49 B. Levack, La Caza de Brujas en la Época Moderna. cit. pp. 279-283.
circumstantial evidence of the crime 1597
As for the way of applying death penalty and other punishments for this kind of offen ce, hanging was a peculiarity in the Anglo-Saxon areas, including the American colonies. However, the traditional solution for the rest of European countries, according to ancient regulations, both temporal and religious, was execution by fire.
Those found guilty of witchcraft were sentenced to be burnt at the stake. However, they were usually killed before being sent to the purifying flames. In several countries, including Spain, culprits were usually previously killed by garrotte, a device for strangling using a tour niquet.
However, in Southern European countries, witchcraft was preferably punished by whi plashes and banishment as a rule, in addition to other minor penalties. Men could also be sentenced to serve as rowers in the royal galleys.
As for the number of whiplashes, the average according to the Spanish inquisitorial docu ments was usually between one and two hundred. They should be applied on the offender’s naked back and in a public place in order to serve as a lesson to others. Those who had been sentenced could also be gagged, put on a donkey, and paraded on its back through the main streets exposed to public shame. They also wore the so-called Sambenito, a rough tunic with symbols drawn on it, and the coroza, a pointed headwear worn in processions. All these ele
ments are magnificently represented in Goya’s paintings. The convicted were forced to hold a yellow candle, so that everybody knew that they had been sentenced for witchcraft, as the colour of the candle varied depending on the offences. It all was part of the enormous thea
trical scenery set up by inquisitors to intimidate people and fill them with awe. Banishment was very often another alternative or additional punishment for witchcraft and superstition. Those found guilty had to leave their home town and were forbidden to get closer than anywhere eight leagues around it.
Seclusion was also prescribed depending on how dangerous the criminal was considered by inquisitorial and temporal courts. Very often, this kind of «mild imprisonment» took place in public institutions, like hospitals, convents, etc.; thus, these places were supplied with inexpensive labour. The prisoners were even given permission to beg in the streets in order to help pay for their own support while they were secluded.
There were also spiritual punishments, as for instance the penalty of reconciliation and abjuration from heresy, as well as being admonished and forced to attend a particular number of masses and other kinds of penitence.
Although the repetition of the offence was theoretically punished by the death penalty, I was unable to find a single case where a person who relapsed was sent to the flames in Spain after the 17th century.
While in the eighteenth century lots of alleged sorcerers were being burnt in Northern Europe, the Spanish Inquisition was hardly concerned with witchcraft and superstition, since rationalism was a bigger menace for the structures of the monarchy. For this reason, many sentenced people asked the Suprema for acquittal or pardon. They usually claimed personal reasons, for example the fact that they had children or grandchildren to support. Inquisitors granted clemency when a reliable person vouched for the offender.
1598 maría jesús torquemada
7. The lawsuit for witchcraft and the economic factor
This is, undoubtedly, a very important factor that has been almost systematically over looked by historians when approaching the subject of European witchcraft and the large amount of people who were sentenced to death because of this particular crime. We men tioned above the differences between central and local courts of justice. Central justice often
had the appropriate means to carry out proceedings according to the law, as well as to provide the accused with procedural guarantees. Professional judges and barristers were attentive to have formalities fulfilled.
The Spanish case is, perhaps, the best example. The Inquisition was strongly centralised by the Suprema. All the punishments needed to be authorised by this supreme inquisitorial court from the early 17th century, when some rules were drafted for the proceedings in cases of witchcraft in 1614. There was no room for lynching or private revenge, as the inquisitorial «big brother’s eye» controlled even the smallest detail from the headquarters in Madrid. Moreover, procedural expenses were not spared during the period when the mass executions for witchcraft occurred in central Europe, as gold lavishly flowed from Latin America. When the gold supplies started to decrease from the 18th century onwards, witchcraft was not any more, as we said above, a major concern for the Spanish Inquisition, because this institution was mostly a tool used by the monarchs to maintain social control, that was at the time se riously endangered by Enlightenment.
On the other hand, in those regions and countries where the political or religious power was divided into many different minor authorities, none of them were willing to pay for the large expenses which the long imprisonment of alleged witches and the consultancy of specialized lawyers involved. Taking counsel from the central courts, where the experts were supposed to be, was a matter of paying for the necessary travel expenses in order to get the evi dence sent to the central court, including rider, horse, etc. The consequence was that the local justice administration used to ignore these formalities and to carry out chaotic and summary trials, as well as mass executions, because, in addition to other reasons, as for instance the pressure exerted by the populace, this was the quickest and cheapest solution for the problem.
To sum up, witchcraft was wildly punished by the poorest judicial stages, as they did not want to pay for the expenses that the punctilious Roman-Canon law demanded in order to get a witch legally executed.
8. Conclusions
According to what has been examined along these pages, several prejudices concerning the historical and legal aspect of the crime of witchcraft and sorcery should be avoided when doing scholarly research. It is obvious that fewer indictments took place when the male sorce rers and victims were involved in this sort of practice, thus the fewer records in the archives.
The common legal foundations shared by all of the European countries could be conside red as another interesting remark concerning the subject of witchcraft. The different results, regarding the number of executed people, are due to the corruption and the abuse carried out by minor authorities when superior courts failed to control them.
Finally, the economic factor shouldn’t be overlooked, although it has so far been ignored by many works devoted to the subject of witchcraft. It was evidently one of the most impor tant reasons for mass executions during the different witch-crazes.
https://docs.google.com/document/d/1GyaMMC865jf3dlrmG1WU_PvnsnyPT0MC4_K8XEwWE84/edit
International Answer 