A Skeptic Looks at Witch Hunting – Friedrich von Spee (1631) The early modern idea of witchcraft – injury committed through supernatural powers by someone in alliance with the Devil – was never entirely unchallenged. Johan Wier (also: Johann or Johannes Weyer) (1515-88), a physician from Brabant in the Low Countries, was among the first to publish a critique of prosecutions and executions for the crime of witchcraft. He argued that while demons did exist, and while the Devil could indeed create illusions to mislead humans, he could not cause them to do harm to their neighbors. He plead for lenient treatment for persons accused of witchcraft. Nearly seventy years later, in 1631, the German Jesuit Friedrich von Spee (1591-1635) published his Cautio Criminalis on an anonymous basis. His attack on the practice of witch hunting was based not on a view of the Devil's powers (à la Wier), but rather on his judgment that current judicial procedure precluded anyone accused of witchcraft from receiving a fair trial. This was especially true in the German lands, where, he believed, the abuse of judicial torture and perverse procedures practically guaranteed the conviction of those accused of witchcraft. In common practice, either a confession of guilt or a denial of guilt was sufficient for condemnation in witchcraft trials. He also noted that while the prosecution and killing of accused witches went practically without check in the German lands, other countries (he names Spain and Italy) failed to follow suit.
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page 1 of 11 (A) The Credibility of Denunciations in Witch Trials, and whether they warrant the Application of Torture. QUESTION XLIX. What are the arguments of those who consider that denunciations made by witches are trustworthy, and say they suffice for torturing those denounced? THEY provide many arguments, but these easily collapse. We will treat them in order and refute them. ARGUMENT I. The judge is obliged to interrogate the accused sorcerer or witch about accomplices and the suspect is obliged to answer. Therefore the judge must believe the accused sorcerer and his denunciation must stand. It is proven. For if he cannot be trusted, then the judge is obliged to ask in vain and the suspect to respond in vain. So writes Binsfeld on page 248. I ANSWER I. We who hold that witches’ denunciations should not be trusted consequently deny that the judge is obliged to concern himself with such denunciations and to interrogate the accused to obtain them. I ANSWER II. Let us even concede that the judge is obliged to question the accused sorcerer about his accomplices; nevertheless, what some judges claim does not follow, namely that one must immediately believe the sorcerer if he says that he saw an accomplice at the sabbaths, or similar things that cannot be proven otherwise. In this case the judge is obliged to question prisoners about accomplices, because it could happen that some could depose further things, including details and evidence that clearly show whether these and those denouncers are lying right now, for who could doubt that occasionally they do lie? Therefore the judge may inquire about accomplices, I do not forbid it. But unless he finds proof that clearly shows that the denouncer is not duping him, the judge should not believe him. However, concerning the sabbaths, that some women were seen there, etc., the judge should not believe him for the reasons recounted above. Let me mention this here in passing: I taught above from the Caroline Code that confessions made under torture should not be believed unless what was said were things that no innocent person could know or say. Why, I ask, are the transcripts not inspected and examined to see whether everything said there by a majority of the accused could not also have been said by innocent people? For I will manifestly show that innocent people could have said those things. Why do the princes do nothing to severely punish judges who deserve death for trusting denunciations so rashly in a capital crime against the express rule of the Imperial Code? ARGUMENT II. It is the accepted judgment of all theologians, as well as canon and civil lawyers, that we may not interrogate someone who has himself confessed about another’s conscience, and if he is interrogated, then according to the law we may not conduct a trial on this basis or believe him. But this rule does not prevent us from making an exception in those crimes which are called excepted, in which we must interrogate confessed criminals about accomplices and believe them. Therefore their confessions create trust, otherwise there would be no distinction between excepted and non-excepted crimes. So writes Binsfeld on page 252. I ANSWER I. I deny that there would otherwise be no distinction between excepted and non-excepted crimes. For this is the distinction: in excepted crimes there is no need to uphold in every regard the usual method of conducting trials which the law prescribes for other crimes. However, not only does the law forbid us to believe accomplices who are by their nature mendacious, but nature does also, from whose law there is no exception, unless further details and evidence convince us that the suspects are not lying.
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