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Ethical Considerations Related to the Representation of Someone Accused of Witchcraft

If you find yourself representing someone accused of witchcraft, you will want to consult the Malleus Maleficarum. This treatise, housed in the Law Library of Congress Rare Book Vault, contains everything you need to know to identify a witch, or at least what two theologians and inquisitors believed constituted evidence of witchcraft in 1486 (the edition pictured below was published in 1496). This is one-stop shopping for witchfinding, combining legal and theological theories on witchcraft.

Malleaus spine

Malleus Maleficarum spine. Photo by Robert Brammer.

The treatise is divided into three parts. The first part is dedicated to proving that witches exist. The second part discusses cases of witchcraft and how witches are recruited, concluding that existing witches are responsible for recruitment and essentially provide service as the devil’s human resources department. The third part advises the judge on how to conduct the trial with the goal of obtaining a confession from the accused.

The treatise recommends strategies for examining the accused while also protecting oneself against a witch’s powers. The judge was advised to be cautious not to allow the accused to touch him. It was also advised that the accused be led into the courtroom backwards, since the accused may be able to bewitch the judge and alter the outcome of the trial merely by looking at him. The accused was entitled to appointed counsel, but not one of their choosing, since, no doubt, they would choose someone evil. Instead, the judge selected the advocate, who was expected to not be litigious, not easily bribed, not evil-minded, and someone to whom suspicion would not likely attach. The advocate was held to standards of good conduct and was expected to refrain from “pretentious oratory.” Even if the advocate met these criteria, representing someone accused of witchcraft was not without its risks. If an advocate was found to have defended heresy, he could have been excommunicated for his trouble. The advocate was expected to refuse or abandon a case that he considered desperate or unjust, but authorities differed as to whether he would have to return the fee if he had discovered the case was unjust after he had already commenced his work, with one authority concluding that he could retain the fee if “he had worked very hard.”

Malleus

Malleus Maleficarum. Photo by Robert Brammer.

That covers most of the concerns you will encounter as an advocate for someone accused of witchcraft. But maybe you are approaching the subject of witchcraft from a different angle. You have a rival in love or business, and you think to yourself, it’s Halloween and I’m creative, maybe I can just get this person out of the way by accusing them of witchcraft? The document below from the Law Library’s Rare Book Vault may force you to reconsider this strategy. This is a bail document from Massachusetts, dated 1692,  in which a Justice sets bail in the amount of one-hundred pounds for a Mr. John Locker for wrongfully accusing Cornet William Brown of “the horrid crime of witchcraft.”

Setting bail for John Locker for making a false accusation of witchcraft against Cornet William Brown. 1692.

Setting bail for John Locker for wrongfully accusing Cornet William Brown of witchcraft. Dated 1692. Photo by Robert Brammer.

Happy Halloween. If you have any questions about the legal ethics of representing someone accused of witchcraft, please use our Ask a Librarian Service.

Sources consulted: Malleus Maleficarum as translated by Rev. Montague Summers

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