The judicial & witchcraft

However, this belief in demonological witchcraft alone does not explain why there was so much variation across Europe. Countries such as Switzerland and France that accepted the belief also saw many endemic cases of witchcraft, and it was only in isolated areas that intensive witch-hunts occurred9. A second explanation for the variation in judicial prosecution of witchcraft is that different judicial systems were used throughout Europe in the Early Modern period. The marked contrast lies between Spain and Italy.

Both were under the control of the Inquisition and the Holy Office, and the Holy Roman Empire – several 'small kingdoms, principalities, duchies and territories'10 under one legal code, the Carolina. Spain and Italy executed only 300 people for witchcraft throughout the period11, in comparison to the Holy Roman Empire, who executed approximately 50,000. In Spain and Italy, judicial procedure was very strict; it followed specific guidelines in publications made by the Holy Office, and was supervised by central authorities, such as the supreme council in Madrid who had to approve any sentencing.

The courts of the inquisition were not interested in 'local neighbour' accusations, believing most to be unfounded, and the elite did not widely accept the demonological view. This ensured that prosecutions for witchcraft would only occur if fraud or heresy was believed to have been committed, and allowed people accused of witchcraft legal council and to be shown a copy of what they had been accused of. The Holy Office also forbade torture and declared that any testimony given by the accused was not used in further accusations; Tedeschi believed that this system was 'a pioneer in judicial reform'12.

In Barcelona in the 1530s, a witch-hunt was prevented as a result of this judicial system, due to the supreme council overturning the sentences13 passed by local courts. This system therefore explains to some extent why Spain and Italy saw a comparatively small amount of witch prosecution in the Early Modern period. Although the Roman Empire had a unifying judicial code and followed the inquisitorial system, it was not often enforced. Individual countries and regions therefore effectively had autonomous judicial systems.

In many cases, this meant that trials for witchcraft were held in secular courts by local people, who could be influenced by their individual beliefs and be very biased in their sentencing and punishments. Furthermore, under the law, a confession or two eye-witness accounts were required to prosecute somebody, and as there was little regulation, torture was often used to gain this confession, or people deemed 'unfit to testify'14 were accepted as witnesses.

Switzerland, who also had an autonomous judicial system, tried 8,800 people and in the Pays de Vaud, the conviction rate was 90%, in comparison to only 21% in Geneva where there was a centralised judicial system15. In France, there was a centralised system, and it was only in geographically isolated areas therefore, such as Lorraine, where extensive witch-hunts were able to take place. Ankarloo believed that 'social and geographical distance made the elite more antagonistic to cultural deviation'16, as they could not be brought under the control of central judiciary.

In England, a third 'accusatorial' judicial system was used. People could accuse others of witchcraft, and they would be tried either within secular courts by Justices of Peace who had little training, or more commonly by the assizes. This was a central form of justice, where the country was divided into six circuits and visited twice a year by allocated judges who were experienced and trained. A jury also had to be present, and a unanimous decision was required to gain a conviction.

Furthermore, torture was forbidden, so false confessions were not gained and as a result England saw relatively few witch-hunts. Therefore it becomes increasingly clear that the judicial system of a country contributed greatly to the variation in witch prosecutions in Early Modern Europe. As already mentioned, torture was utilized by the inquisitorial system in parts of the Holy Roman Empire, and on the whole not by the accusatorial system.

Its use was very important in determining high judicial prosecution, as often when torture was used a confession would be gained. In countries where the demonical view of witchcraft was accepted by the elite, the confession usually consisted of the accused admitting to having a compact with the devil and therefore being a witch, but also to meeting on the sabbat, as this would ensure that the torture would be brought to an end.

By admitting to this, the accused would be asked to list the other people that met on the sabbat and as a result, they would all face trial – effectively creating a witch-hunt. This can be seen in Bamberg in 1623 – 1633, where 600 people were prosecuted for witchcraft as a result of one person being accused and naming accomplices who then did the same thing. Denmark took precautions against witch-hunts created in this way, by making it illegal to try people based on the confession of another.

It can be seen therefore that this kind of 'snow-ball' effect did not happen in countries where torture was not permitted, for example in England and Spain, as multiple accusations were not made. Furthermore, even if torture had been used in these countries to gain a confession, it is unlikely that the confession would have led to witch-hunts, as the judges did not hold beliefs in demonical witchcraft.