Title: 13th February, 2008
Author: Sean Mulligan

Klaits Chapter Six
In the Torture Chamber: Legal Reform and Psychological Breakdown

Klaits’ General Claim
•	Like Salazar de Frias and Friedrich Spee, Klaits offers this observation:
•	“Without torture there would have been no witch craze.”
•	K.128

What WOULD have Been?
•	Certainly some trials for witchcraft would have occurred in early modern Europe without the use of torture.
•	Immense scale of witch hunting derived in large part from the spread of coercive tactics.
•	Case study of what WOULD have been will focus on England, 16^th C.

England Influenced by Europe:
•	“Even in England and New England, where most forms of torture were forbidden, the authorities’ ideas about witches were strongly influenced by continental writers who drew their evidence from confessions extracted by torture.”

Case Study:  Bamberg, Germany
•	Johannes Junius.
•	Convicted of witchcraft, wrote a letter to his daughter about the treatment he had received.
•	Was forced to name accomplices, and was named as an accomplice by others.
•	They all knew about their mutual implication, and forgave each other for their accusations because of the way they had been obtained.

Forced Confession:
•	Jailers actually pleaded with him to confess something since he was already found guilty.
•	This would have prevented further torture and hastened his execution.
•	“It were surely better that I just say it with mouth and words, even though I had not really done it; and afterwards I would confess to the priest, and let those answer for it who compel me to do it…And so I made my confession, as follows; but it was a lie.”

Junius’ Final Confession:
•	“…whoever comes into the witch prison must be a witch or be tortured until he invents something out of his head.”
•	He ends his letter, see K.130

Breaking Prisoners:
•	Illustrates the power of torture to break a prisoner’s resistance.
•	Note the method that led to an ever widening net of suspects by being forced to name others.

Political and Legal Centralization:
•	“Legal reform was one of the most important weapons of centralizing rulers in early modern Europe.  Since the late 1400s, ambitious princes had been engaged in a continual effort to subject law courts to firmer direction from above.  One example of the rulers’ attempts to exert control over judicial officials was the promulgation of elaborately detailed written law codes meant to standardize and regularize court procedure.” K.131

Exceptional Crime:
•	New legal reforms were meant to draw on the Roman Law’s treatment of treason.
•	Middle Ages:  heresy seen as treason against God.
•	Reformation:  clerical and lay officials deemed heresy the ultimate crime.
•	Divine Right of Kings made witchcraft a crime of treason against the ruler as well as against God.

Goal was Order and Peace:
•	Codes were the legal embodiment of the monarchical claims to sovereignty.
•	New statutes challenged the family-centered customs of feud and vendetta that had prevailed for centuries.
•	New principle was the supremacy of the King’s law over all loyalties to clan, region, or order.
•	Personified sovereignty was intended to provide a higher level of civil peace.

And the Down-Side…
•	“One of the unanticipated side effects of legal change was the creation of a judicial apparatus and criminal law procedure conducive to large-scale witch-hunting.”
•	New codes mostly taken from the law of Imperial Rome and the church’s Canon Law. (NOT in England)
•	Medieaval legal traditions were run under papal inquisitorial method
•	Inquisitor is both prosecutor and judge.

Black Box Justice:
•	Rights of the Accused:
–	No right to be informed of the charges against them.
–	No right to be informed of the accuser’s identity.
–	Testimony taken in private
–	No opportunity to confront unfriendly witnesses.
–	No right to cross-examination.
–	Defense attorneys generally unknown.
•	“This method, which had first been applied in medieval church courts to the exceptional crime of heresy, now became the norm for all criminal cases.” K.132

In for a Penny…
•	Torture had long been used to elicit confessions in inquisitorial procedure in late middle ages.
•	Feature was adopted by 16^th and 17^th C. legal reformers when they adopted inquisitorial method.
•	“Judicial Torture” became a regular element in criminal procedure.
•	For witch-hunting this was the most important element in legal reform.

Degrees of Torture:
•	“Judicial Torture was administered in graded degrees of severity
•	Highest was “third degree,” 
•	Lesser degrees of torture included use of thumbscrews and tearing out of fingernails.  
•	More severe forms included stretching victims on the rack, or crushing their legs in “the boot”
•	Others included “the strappado” where victims were bound with weights, raised, and dropped to the floor.

Easiest Form:
•	“Not as technologically inventive a torture method, but just as effective, was a deprivation of sleep for days on end.  Often the mere threat of these brutal treatments was enough to gain the desired confession.”
•	Sleep deprivation still used as an “aid” to information gathering.

Not Black and White:
•	Accused prisoners often subjected to punishing physical pain even before conviction.
•	“Under the inquisitorial procedure a firm line between guilt and innocence, a hallmark of modern criminal law, was blurred almost beyond recognition.” K.133

Guilty by Suspicion:
•	“For example, the German imperial law code of 1532, called the Carolina after Emperor Charles V, allowed the use of torture whenever there was probable cause to believe a defendant guilty.
•	“Probable cause meant one eyewitness – two were enough to convict without a confession – or the presence of circumstantial evidence (for example if a suspect was caught with the weapon and the loot).”
•	Probable cause implied at lease semi-guilt, and warranted torture.

Some Protection:
•	Still, suspects were in some degree protected by the probable cause stipulation.
•	French version went further, called on judges to exhaust all other investigatory means and mandate the approval of a panel of legal advisors before application of judicial torture could be sanctioned.

Recall Montaigne’s Observation:
•	“Another of the rules generally used to govern the application of judicial torture was the test of corpus delicti.
•	A requirement that the judge first determine that a crime had been committed.
•	Torture could then be employed.

Evidentiary Problem:
•	Weapons and rewards of witchcraft were usually less obvious than other crimes.
•	How could a judge certify that a death, illness or misfortune was the result of unnatural causes?
•	Maleficent magic supposedly accomplished through supernatural means, and were “deeds whose traces vanished with the act.”
•	Judges’ sole recourse was to obtain a confession, and this required torture.

King James VI:
•	James VI maintained only extreme pain of torture could weaken the devil’s grip on his servants.
•	Ruler of Scotland, applied this maxim in many trials conducted under royal commission in 1590s.
•	Not the first time we’ve heard of him…Became King James I of England March 1603.

Scotland:
•	A Scottish witch always was searched with similar thoroughness to discover “marks…between her thys and her body.”
•	During his years in Scotland, King James VI (later King James I of England) was especially fascinated with the details of the search for the devil’s mark, no great surprise in a man who consistently displayed a prurient interest in the sex lives of his courtiers and relatives.” (K.57)

Legal Changes:
•	Terrible fear of witches and their powers eroded safeguards against wrongful use of torture built into legal codes.
•	After 1560, rulers and judicial officials systematically discarded protections built in by their predecessors.

Next Week :
•	A.D. 1542. 33 Hen. VIII, c.8.
•	A.D. 1563.  5 Eliz., c.16
•	A.D. 1580-1.  23 Eliz., c.2
•	A.D. 1604. 1 Jac. I, c.12

Man of his Times:
•	“King James’ assertions about the necessity of torture constituted the conventional wisdom of the European judicial elite in the decades around 1600.” (K.134)
•	General feeling of near helplessness where witchcraft was concerned.

Case Study:  England
•	Tradition of common law prohibited most types of torture. (see next slide)
•	We can use England to see what witch trials would have looked like without torture commonly used on the continent.
•	Although witchcraft 2^nd most prosecuted crime in kingdom, compared to other countries England had relatively few trials.

Acceptable Torture in Elizabethan England
•	Hung, drawn and quartered
•	Hand cut off, then hung
•	Stocked and Whipped
•	Ducked on cucking-stools
•	Pressing
•	Branding
•	***All employed after conviction

England vs. Scotland
•	England – best guess is under 1000 executions, maybe as low as 500.
–	(Common Law)
•	Scotland – over 1000 executions, on a much smaller population.
–	(Roman Law)

Comments for Next Week:
•	Unlike France, Germany, Scotland and most other countries, England came out of the Middle Ages with a cohesive legal code.
•	Tudor monarchs of 16^th C. and Stuart monarchs who followed only undertook limited innovations.
•	K. 135

END.