The burning of witches was not a part of old Church law, so for a long time, punishment for witches consisted merely of excommunication and prison. In 1532 Charles V introduced his new book of laws, the so-called Carolina, or “Procedure for The Judgment of Capital Crimes,” which called for those practicing witchcraft to be burned at the stake. But there was still the stipulation that actual harm must have occurred. Many jurists and princes found this law to be too mild and preferred to follow Saxon law, under which all wizards and witches could be burned, even if they had inflicted no harm. These multiple jurisdictions resulted in such terrible confusion that there was no longer any question of law and order. On top of all this came the notion that witches were possessed, inhabited by the devil; thus, people believed that they were contesting the superiority of the devil and that in this fight everything was allowed. Nothing was too horrible or too nonsensical for the jurists of the day to be at a loss for a Latin word to describe it: witchcraft was deemed a crimen exceptum, an exceptional crime, meaning a crime for which those accused could hardly ever defend themselves. They were treated as guilty from the very start. Even if they had counsel, there was not much the latter could do, because the suspicion was that any advocate who too eagerly defended those accused of witchcraft was probably a wizard himself. Jurists tended to see witchcraft cases purely as matters of professional expertise, which they alone possessed. The most dangerous principle they espoused was the following: in crimes of witchcraft a confession would suffice, even if no proof were found. For those who know that torture was the order of the day in witch trials, it’s plain to see how little such confessions were worth. One of the most astonishing things about this story is that over 200 years went by before it occurred to jurists that confessions given under torture have no value. Perhaps because their books were so jammed full of the most unlikely and dreadful, hairsplitting minutia, they couldn’t entertain the simplest of thoughts. And what’s more, they believed they were staying wise to the devil and his tricks. If, for example, the accused was keeping silent, because she knew that every word she said, however innocent, would get her deeper into trouble, the jurists would claim this was “Devil’s lockjaw,” meaning that the Evil One had hexed her, leaving her unable to speak. So-called witch tests, used when occasionally the proceedings needed to be shortened, were equally effective. For example, the test of tears. If someone did not cry under torture, it was considered proof that she was being aided by the devil; it would again be 200 years before doctors made the observation, or dared to utter the fact, that people suffering extreme pain do not cry.
The fight against the witch trials is one of the greatest liberation struggles in the history of man. It began in the seventeenth century and took 100 years to succeed, in some countries even longer. It began, as such things very often do, not with a realization, but out of necessity. Over the course of a few years individual princes saw their lands grow desolate as their subjects accused one another under torture. One single trial could spawn hundreds more, taking up years. Some princes started to simply forbid these trials. People gradually dared to reflect. Clergymen and philosophers discovered that belief in witches never existed in the early Church, that God would never grant the devil so much power over men. Jurists came to understand that slander and confessions provoked under torture could not be relied upon as evidence. Doctors reported that there were illnesses that made people think they were wizards or witches even when they weren’t. And finally, healthy common sense prevailed as people acknowledged the countless contradictions in the case files of individual witch trials and in the belief in witchcraft itself. Of the many books written at that time against the witch trials, only one became famous. It was written by a Jesuit named Friedrich von Spee. In his younger years he was a confessor at the deaths of condemned witches. When one day a friend asked him why he had gray hair at such a young age, he replied: “Because I’ve had to accompany so many innocent victims being burned at the stake.” His book, Cautio Criminalis, or a Book on Witch Trials, is not particularly subversive.3 Friedrich von Spee actually believed in the existence of witches. But he outright refused to believe in the horrific, erudite, elaborate, fantastical evidence used for centuries to brand just about anyone a witch or a wizard. In this one work he confronted all the ghastly Latin-German gibberish in thousands upon ten thousands of case files, letting his anger and emotion spew forth. His work and its impact proved how necessary it is to place humanity above scholarship and subtlety.
“Hexenprozesse,” GS, 7.1, 145–52. Translated by Jonathan Lutes.
Broadcast on Radio Berlin, July 16, 1930. The Funkstunde announced for July 16, 1930, from 5:30–6:00 pm, “Youth Hour, ‘Witch Trials.’ Speaker: Dr. Walter Benjamin.”
1 The Hexenhammer, or Malleus Maleficarum, by Heinrich Kramer and James Sprenger, first published, as Benjamin mentions below, in 1487.
2 The Witches’ Dance Floor [Hexenplatz], the Walpurgis Hall, and Blocksberg, situated in the Harz mountains, are legendary sites associated with witchcraft.
3 Written in Latin and first published in 1631, Friedrich Spee’s Cautio Criminalis, or a Book on Witch Trials, was a critique of contemporary legal proceedings against witches, including the use of torture.
CHAPTER 14. Robber Bands in Old Germany
If robbers had nothing else over other criminals, they would still be the most distinguished of them all because they alone have a history. The story of the robber bands is an integral part of the cultural history of Germany, and indeed of Europe as a whole. Not only do they have a history, but for a long time at least they also possessed the pride and self-assurance of a profession with ancient traditions. A history of ordinary thieves or crooks or murderers cannot be written; they are just individuals, from families where the art of thievery has been passed down only once, if at all, from father to son. With these robbers it is altogether different. Not only were there great robber families that propagated over several generations and great stretches of land, and, like royal families, forged ties between lineages; not only were there individual bands that remained intact for up to fifty years, oftentimes with more than 100 members, but they also had old customs and traditions, their own language, Rotwelsch, and their own notions of honor and rank, all of which persisted as legacies among their kind.1