Judicial Torture

When we discuss torture we think of words like inhumane, degrading, and painful. But one word that is not quite the first thing that pops into our heads is judicial. Adding this word judicial in front of torture suddenly makes it seem like it's okay, that it's legal and that there are rules. Levack talks about a few rules, which varied from place to place, like the prohibition of torture unless the judge could prove that a crime had actually been committed. This is interesting because witchcraft is not actually a crime that judges could prove had been committed. Being accused of witchcraft almost entirely relies on confessions and stories from others. This being said it is also interesting that the most serious tortures were saved for the accused of witchcraft not because it was a heinous crime, Levack says, but because judges feared they would employ magic to help them withstand pain.
Levack also talks about how the torture greatly increased the chances of witches being convicted. He says that the use of torture resolved the problem of having insufficient proof and made the conviction of anyone who incurred the suspicion of witchcraft possible. Levack says that there is no question about it, without torture the convictions of witches would have been much less common. So is it correct in saying that without torture the witch hunt and conviction of witches would be almost nothing? Can we thank torture for giving us this great topic to study?

Torture and Its Uses

Torture and Its Uses

Torture was used to get confessions out of accused witches. This type of torture was described as judicial torture by Levack. Torture is inflicting pain either physically or psychologically, it is inhuman and degrading punishment.  In class we discussed the Pappenheimer family who were tortured so they would confess to killing a pregnant woman. This family of a mother father and four sons were all tortures and killed due to the amount of torture inflicted on them. They were tortured physically and mentally. The father was the last to be tortured and faced the most punishment, in my opinion, because he watched his family go through all the different torture techniques.

The judicial torture developed into a more reasonable system after the thirteenth century. Before the degrees of torture there was accuses and then immediate torture to get confessions. The degree of torture was a system that judges used to extract confessions. First degree of torture was simply asking if the accused if he or she was a witch. Second degree of torture was to show the accused the torture instruments. The third degree of torture was to prepare for torture. The fourth degree was to do small torture punishments to the accused witch for example, thumbscrews. The fifth degree of torture was to advance in the amount of punishment and use things like the witches chair.

There are multiple different torture techniques and equipment used during the witch trials. Some images I saw put me into uneasy state. The type of torture techniques I saw were hard for me to even think about let alone would I be able to stomach the thought of watching it happen. During this time watching witches being tortured was a public event and the town would come and watch it happen.  How do you feel about the different torture techniques? 

Reckless Abandon: The Transformation of Court Appointed Torture Rules

I was very surprised to learn just how strict torture rules were initially. Throughout our readings, we've heard dozens of accounts of women who were tortured endlessly. Some buckling under pressure while others died at the hand of the executioner. Levack lists a number of rules regarding torture beginning in the 1200s. They include ideas about torture that even to modern standards, are far more reasonable and reliable than the tactics used during the great hunt. Levack says that torture is likely to be most unreliable when these conditions are met, “(a) the person tortured is innocent of alleged crime or ignorant of the desired information; (b) the details of the confession are suggested to him by means of leading questions; and (c) the amount of torture was excessive” (Levack 81-82). For this reason, rules against repetition of torture, severity of torture and the nature of questions asked during torture were all carefully laid out. These provisions also included exclusion of pregnant women and children from torture altogether.

When the witch-hunts were at their height, however, we see a blatant disregard for such regulations. Areas with what seem to be the freest forms of torture had conviction rates as high as 95% compared to regions that used little or no torture at less than 50% (Levack 87). Most striking was the statement from the hangman in Dreissigacker in 1631 to a pregnant woman, “I do not take you for one, two, three, not for eight days, nor for a few weeks, but for half a year or a year or the rest of your life until you confess and if you will not confess, I shall torture you ro swarh, and you shall be burned after all” (Levack 85).

Why do you think judges allowed executioners/hangmen to go so far off-book as far as torture regulations go? Which do you regard as the most effective (to illicit confessions) modification to torture regulation: multiple instances of torture, using leading questions in interrogation or using more severe forms of torture?   

Torture - Justice in the Witch-Hunt

From the reading, I would like to focus on Roper’s take on torture- its application and the relational aspects at play between the accused and the various overseers of justice. Firstly, Roper emphasized how torture was incorporated into the entire legal process of the time period, not singularly in the witch-hunts carried out. As the author states, “the widespread conviction that pain freed the tongue of the criminal was a cornerstone not only of the legitimacy of the witch hunt, but of the entire legal edifice of the time” (Roper 46). In essence, torture was acceptable as a tool in a broader legal context, applied in degrees to ultimately seek truth. Overall, torture was part of an intact system of justice, a procedural way to extract the information believed to be available- especially in regards to the Devil (Roper 51).  In this way, the author suggests that torture was not an extreme reaction utilized only in the case of the witch-hunts. Moreover, the text supplies evidence that women did, at times, endure torture without confession. For example, “Maria Noll of Nordlingen resisted sixty-two applications of torture and her steadfastness eventually undermined the basis of the Nordlingen panic” (Roper 50). Therefore, torture was a crucial element in the confession-driven landscape of the hunts, but it was not necessarily a unique application itself.

However, Roper develops ideas of torture that do situate its uses more specifically to the witch-hunts. The author delves into the interactions amongst those carrying out justice and those accused, identifying a relationship between interrogator and accused as “unequal” yet still somehow collaborative (Roper 58).  This bond becomes reflected by a “particular kind of empathy” by the interrogator, who is also at times a “compassionate philanthropist” (Roper 57).  This does fit into the pattern of Roper always considering the very human and very real aspects of the witch-hunts through the lens of psychology and emotion. Yet, as a reader, the above-noted ideas sit uncomfortably for me. I am not positive I agree with Roper’s terminology, if I understand the attempt to demonstrate that the perspective of the interrogator was not simply cruelty. An interrogator was subject to the new strict moral order, as well as the systematic approach of the legal system with the purity of justice at the heart. In effect, justice required the interrogator to take into account all the factors- to listen to relations of daily life and to seek a wide range of information. I am just not convinced empathy is the right word here.

What did you think of Roper’s approach/ideas in the reading?

 

Defense or Torture: Legality through the Malleus Maleficarum

A few interesting ideas about justice and the legal process emerge from the Malleus Maleficarum. For one, the authors of the Malleus emphasize discretionary privileges, as well as general rules of conduct for the Judge at hand. For example, the text states, “If the accused...is asking to defend herself...let the Judge take note that he is not bound either to publish the names of the deponents or bring them before the accused (Kors 206). As the authors were likely aware, such a concept appears aimed at disarming attempts at defense by the accused. In the Malleus, the secular Judge is an active limb of the law, a powerful, enabled controller of justice. Thus, unsurprisingly, Kramer’s work encourages the use of torture by the empowered Judge; the text describes, “let her [the accused] be often and frequently exposed to torture” (Kors 213). The document asserts torture as a standard, a commonality of trial, a natural tool of the secular court.

Torture is not in question per se, if defense is more subject to consideration. Hence, the idea that there is a “question of allowing the accused to be defended, and whether she should be examined in the place of torture, though not necessarily in order that she should be tortured (Kors 206). Consequently, the overall tone of the text conveys a justifiable application of torture in most cases, as defense becomes questionable. In general, the text incorporates new legal standardization into the objective of the prosecution of witches, namely female. To me, the document places the Judge as a symbol of state power, while the more intensely procedural aspect of the legal world, as the authors employ it, make the arguments seem more rational, if not necessarily so.

How do you perceive “the Judge” in the text?

On Exposure, Humilation, and Helplessness

Heinrich Kramer and Jacob Sprenger, authors of the Malleus Maleficarum, gave very detailed advice as to how a suspected witch should be investigated, questioned, tortured, and tried. She was not to be left alone after torture, lest the Devil coerce her to commit suicide. She was to be led backwards into any chamber the judge was in, lest she bewitch or curse him with her eyes. She was to be questioned in a different location than the torture chamber in the event she confessed under torture.
By far the most interesting bit of advice Kramer and Sprenger gave to judges and inquisitors was to search a suspected witch upon taking her into questioning, and again more invasively before torturing her. They advised removing her clothes (or having a virtuous woman do so in private chambers) to search for any concealed magic implements that might impair the investigation. Before torture, she was to be shaved, removing all the hair from her body in search of hidden devil's marks, magic implements, or other damning evidence hidden in the hair.
In the 15th century, when the Malleus Maleficarum was written, and in the subsequent century or two when the advice within was implemented, adult women would ordinarily be seen naked by only their husbands, and their hair would ordinarily never be removed for any purpose (except perhaps medical reasons). Searches of this nature would be highly unusual and humiliating, only adding to the dehumanization suspected witches faced as their family, friends, and neighbors were turned against them, their reputations were destroyed, and their every word discredited. Though such searches were ostensibly to reveal damning evidence, the humiliation a witch would likely feel surely added to the pressure to confess and make everything stop.

Kors and Peters, p. 204-224

Thou Shalt Not Kill: theological parameter for the church?

Immediately after I began the reading of Kors & Peters tonight in the introduction to Part III in the Malleus Maleficarum something really stuck out. Kramer and Sprenger discuss the transfer of responsibility to try witches to secular courts along with ecclesiastical. However specifically in the case of sole heretics it is the responsibility to try and judge, "but for the secular judge to carry out the sentence and to punish; that is, when a capital punishment is in question." In any other case of sole heretics, the punishment was left to the penitential, but in the case of a possible punishment of death the secular judges were responsible to administer the punishment. I was just curious if this was for the commandment not to kill. Also, for some reason I was under the impression the the church may have been supportive of the burning of witches, if that is true then why could they not administer the punishment? In this section and later on the authors again discuss the responsibility of the secular court to try witches based on the encompassing danger, threat, and offense of witch craft not only to the church but also secular society.

In their section titled "Of the Manner of pronouncing a Sentence which is Final and Definitive," the authors explain this again saying, "It must be remembered, also, that this crime of witches is not purely ecclesiastics; therefore the temporal potentates and the Lords are not debarred from trying and judging it." While reading this I came to the conclusion it wasn't necessarily a call for a more vast court system in order to stop more witches rather, it strikes me as a plead for more support. Whenever one desires more support for his or her position, specifically in politics, the communal threat is invoked (specifically the notion that everyone's children are endangered by this "threat" if people do not join in to fight it is utilized regularly).By framing witchcraft as encompassing into the secular realm and calling for the use of secular courts to also try the witches do you, as the reader, sense the authors' plead for more support outside of the church?

On the Wrong Side of the Law: States, Legal Codes, and the Witch-Hunt

Thus far, we have studied papal documents, church penitentials, and religious views on everything from sex with the devil to the everyday uses of magic in the medieval period. Undoubtedly, as Levack argues, the non-secular development of perspectives on witchcraft contributed fundamentally to the propelling force of demonology and accusations of witchcraft moving into the early modern period (Levack 89). However, the foundational aspect of religion did not impede a secular appropriation of these techniques for use in the other political arena: among kings, emperors, and rulers of states, that were becoming both more nationalistic and bureaucratic. Although earlier rulers utilized inquisitorial techniques in the political sphere, like Philip the Fair of France in the 1300s against the powerful Templars, both state power and the inquisitorial processes were not yet defined, centralized, or coordinated as they would appear in the 1500s to 1600s. Not to mention, church authority became the lesser, as the state became the overseer of both the religious and secular realms in the sixteenth century (Levack 91). Overall, Levack’s ideas demonstrate that the legality or more appropriately, illegality of witchcraft in the sixteenth-century had been absorbed by the growing secular domain in general.

Therefore, for me, one interesting representation of the secular domain mentioned in the reading was the Constitutio Criminalis Carolina or as Levack refers to it, the Carolina code of 1532 (Levack 90). In her article, Joy Wiltenburg suggests that the sixteenth-century code of the Holy Roman Empire reflected societal changes. For one, it was an effort at reform of legal practice, yet still employed Roman inquisitorial procedures. Two, it had an “educative goal,” one that eased and encouraged the employment of standard legal processes at local levels of justice. Lastly, the author stressed the text indicates that courts had become places of “public business,” prone to an intermingling of rationality and emotion (Wiltenburg 713-734). Wiltenburg’s study shows how the Carolina code both connects to secular power and to witch-hunts. In effect, the Carolina is evidence that people were far more steeped in a background of acceptable legal/non-legal actions, while legality became a public concept tied inextricably to standards of state and power. Witches became a link in the ties between people, justice, and state. The secular influence took hold in the witch-hunt at hand. However, secular power was just one consideration in the continued heightening of witch-hunts, as the Carolina is just one example of how witchcraft was translated into standards of state power.  

Levack, Brian P. The Witch-Hunt in Early Modern Europe. London: Rutledge, 2013.

Wiltenburg, Joy. “The Carolina and the Culture of the Common Man: Revisiting the Imperial Penal Code of 1532.” Renaissance Quarterly 53.3 (2000): 713-734.

 

Damned if You Do, Damned if You Don't: Tests for Innocence in Early European Court

It is definitely a relief that some of the early methods of court order in Medieval Europe no longer apply when it comes to law and order. Some of the descriptions Levack presented were somewhat frightening, in that there seemed to be no hope whatsoever for the accused, even if they were to be proven innocent. When I read the examples, the term, "Damned if you do, damned if you don't," comes to mind. You see, in order to prove one's innocence, the accused would have to perform some form of task that was more or less dangerous as a way of testing in God's name whether or not the accused (or victim) was innocent. Levack explained how people would have to do things like, "put his arm into hot water and in similar fashion reveal a healed limb after bandaging; or he would be thrown into a body of cold water and would be considered innocent only if he sank to the bottom..." (Levack 75-76). Tests such as these in order to prove someone's innocence are troubling because they are simply too dangerous and could very much cause the death, or at least severe injury of the accused. And the accused cannot even back out of the test, otherwise he will be proven guilty. So as you can see, this is why I would describe these methods of law and order as a "Damned if you do, damned if you don't," type of scenario. However, in regards to the changing trial laws during the witch-hunts, do you think the change in court law improved, or became worse?

Levack, Brian P. The Witch-Hunt in Early Modern Europe. London: Rutledge, 2013. Page.