On Day 1 of Robert Mueller’s tenure as special counsel investigating Russian interference in U.S. elections, President Donald Trump complained that he was the victim a “witch hunt.” He’s been harping on the phrase ever since—most recently on Sunday morning, when he dropped it four times in a span of seven tweets. Meanwhile, the director of the FBI has testified to Congress that Robert Mueller and the bureau are not, in fact, engaged in any kind of witch hunt, while the White House press secretary just insisted that they are. Mueller and his methods aside, how did the prosecutors assigned to hunting witches in the 1600s carry out their job?
With lots of torture and coercion. Witchcraft trials posed a special challenge to the early-modern European legal system, since the crime was deemed both very grave and hard to prove. Courts required testimony from two eyewitnesses as proof of guilt for capital crimes, or else the suspect’s own confession. Since witchcraft would have been a secret act, mostly carried out in private, eyewitnesses were scarce. That left forced confession as the most effective means of finding guilt.
The procedures for a witch hunt, and its relative brutality, varied quite a bit from place to place. In the 17th-century Lutheran kingdom of Denmark, for example, witches would be tried according to the more old-fashioned “accusatorial” system of justice. That meant an injured party—the alleged victim of some witchcraft—would choose to bring the case to local court. The accuser then would touch the suspect’s head and say, “I hereby accuse you of being a true witch.” Witnesses would testify, and if the suspect were found guilty, the case would be taken up again at the county level. Torture would be carried out only after the defendant had been found guilty, and just before her execution. She’d be tied to a ladder in preparation for burning at the stake. Then she’d be tortured via stretching, as a means of procuring her confession before God—along with the names of any fellow witches she might know.
Witch hunts happened very differently in other parts of Europe. In Catholic Italy (as in many other places), witches were tried in an “inquisitorial” system. A designated official—the inquisitor—would do the investigation for himself and decide which claims of witchcraft might be legitimate and thus deserving of the full legal process. Torture would be applied during the trial, not afterward, as a means of gathering evidence. But inquisitors had to follow rules specifying the sorts of torture they could use and the maximum duration. Suspects were not supposed to suffer any permanent harm from the process. In the end, the most extreme sentences applied to witches would not be execution but rather public flogging and exile from the community. (For more detail, see this paper by historian Louise Nyholm Kallestrup.) By the late 17th century, around the time of the Salem witch trials, European inquisitors and jurists were more vocal in their efforts to enforce due process in these trials, restrain the use of torture against alleged witches and other defendants, and guard against the risk of forced confessions.
Some witch-hunt prosecutions were creative in their use of evidence. In England, courts allowed witch-hunting experiments. For instance, a suspect might be asked to touch her victim, on the theory this would ameliorate his suffering. In some cases, these tests would be carried out in a quasi-scientific mode: The victim might be blindfolded, then touched by several different people in addition to the suspected witch. Such tests would be repeated, too, to make sure the findings held across multiple attempts.
If the Mueller probe has anything at all in common with the early modern witch hunts, it might be that “collusion” doesn’t have a clear legal definition. In a way, the same was true of “witchcraft,” which was understood in different ways by different jurisdictions. Some courts focused on the harm caused by witches’ evil magic; others focused on their heresy. The old view of witchcraft as something both horrific and hard to prove also has some resonance with modern takes on “treason.” In the U.S., no one can be convicted of that crime unless there is testimony from two eyewitnesses, or else the confession of the accused.
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