Hellyer FM 4/14/03 12:51 PM Page i

Cautio Criminalis
Hellyer FM 4/14/03 12:51 PM Page ii

The image placed here in the print version has been intentionally omitted

Studies in Early Modern German History

H. C. Erik Midelfort, Editor
Hellyer FM 4/14/03 12:51 PM Page iii

Friedrich Spee von Langenfeld

Cautio Criminalis, or a Book on

Witch Trials

Translated by Marcus Hellyer

University of Virginia Press

Charlottesville and London
Hellyer FM 4/14/03 12:51 PM Page iv

University of Virginia Press

Translation, Translator’s Acknowledgments, Translator’s Introduction,
and Notes on the Translation © 2003 by the Rector and Visitors of
the University of Virginia
All rights reserved
Printed in the United States of America on acid-free paper
First published 2003

9 8 7 6 5 4 3 2 1

frontispiece: Title page of the second edition of Cautio Criminalis, published

1632. (By permission of the Houghton Library, Harvard University)

library of congress cataloging-in-publication data

Spee, Friedrich von, 1591–1635.
[Cautio criminalis. English]
Cautio criminalis, or, A book on witch trials / Friedrich Spee von Langenfeld ;
translated by Marcus Hellyer.
p. cm. — (Studies in early modern German history)
Includes bibliographical references and index.
isbn 0-8139-2181-3 (alk. paper) — isbn 0-8139-2182-1 (pbk. : alk. paper)
1. Witchcraft—Germany. 2. Trials (Witchcraft)—Germany. I. Title: Cautio
criminalis. II. Title: Book on witch trials. III. Hellyer, Marcus. IV. Title. V. Series.
bf1583 .a2 s6813 2003
133.4′ 3′ 0943—dc21
2002155950
Hellyer FM 4/14/03 12:51 PM Page v

contents

Translator’s Acknowledgments vi
Translator’s Introduction vii
Notes on the Translation xxxvii

Cautio Criminalis, or a Book on Witch Trials 1

Index 229
Hellyer FM 4/14/03 12:51 PM Page vi

translator’s acknowledgments
I would like to thank all those who have read and commented on all
or parts of this project: Michael J. Buckley, S.J., Luce Giard, Belinda
Hause, Frances Hellyer, Grahame Hellyer, John Marino, H. C. Erik
Midelfort, John W. O’Malley, S.J., as well as the two anonymous
readers. Thanks are due also to Cheryl Walker for her assistance in
translating several particularly challenging passages of the text.
This project was completed with the generous support of a
Brandeis University Bernstein Junior Faculty fellowship and a Vis-
iting Fellowship from the Jesuit Institute at Boston College.
Hellyer FM 4/14/03 12:51 PM Page vii

translator’s introduction
In the late 1620s a wave of witch-hunts swept across large areas of
Germany. Their ferocity rivaled anything that Germany, which had
already endured the very worst excesses of the European witch-
hunts, had ever seen. Although Protestant areas were also affected,
the regions that suffered the most trials and executions were the
territories along the Main and Rhine rivers governed by Catholic
prince-bishops, such as Bamberg, Würzburg, Mainz, and Cologne.
In each of these small territories hundreds, or even over a thousand,
women, men, and children were brutally tortured and executed, usu-
ally by being burned at the stake. It was not until the early 1630s
that a measure of calm was restored and the trials, for a while at least,
suspended.
In 1631, at the peak of the trials, a remarkable book appeared in
the tiny university town of Rinteln. Its title, Cautio Criminalis, was
generic, simply meaning a warning in a matter of criminal law. But
its subtitle, or a Book on Witch Trials (seu de Processibus contra Sagas
Liber), identified its real content. Unlike many books published in
the late sixteenth and early seventeenth centuries, however, it did not
encourage the princes to hunt, try, and burn witches or instruct judges
and inquisitors on how to identify witches and force them to con-
fess. Rather, it argued that the plague of witches supposedly infesting
Germany was the product of the trials themselves and urged princes
to supervise trials closely, to regulate the use of torture strictly, and
even to end witch trials entirely. Although the book appeared anony-
mously, its author was immediately identified as Friedrich Spee, a
forty-year-old Jesuit priest and professor of moral theology who had
spent his whole life in the regions worst hit by the trials.
Since then the Cautio Criminalis, a cry of conscience from the
very epicenter of the witch-hunts, has become known as one of the
most stirring examples of an individual speaking truth to power. Its
Hellyer FM 4/14/03 12:51 PM Page viii

viii t r a n s l at o r ’ s i n t r o d u c t i o n
author drew on personal experience, telling arguments, unerring
logic, love of complete strangers, and a commitment to defend the
innocent to produce a work that retains its enduring appeal almost
four centuries after it first appeared.
Friedrich Spee, S.J.
Friedrich Spee was born on February 25, 1591, the eldest son of
the nobleman Peter Spee von Langenfeld, in the castle of Kaisers-
werth near Düsseldorf where his father was castellan in the service
of the archbishop-elector of Cologne.1 The family’s ancestral home
of Langenfeld was itself located between Cologne and Düsseldorf.
Around 1602 Spee began his studies at the university in Cologne,
the bustling commercial metropolis on the Rhine. Spee probably
enrolled at the Montanum college rather than the Jesuit Tricorona-
tum college, as is commonly thought. He was a talented student,
winning the first prize for Latin in 1604. Spee was awarded the
bachelor’s degree in 1608 but did not complete the philosophical
curriculum to earn the master’s degree while at Cologne.
Cologne was not a quiet university town. It had also experienced
a long history of social and political tensions in the wake of the
Reformation. Protestantism found fertile ground in Cologne, as it
did in most of Germany’s commercial towns. But by the time Spee
studied in the city, the old faith had prevailed and Cologne had be-
come a bastion of Catholicism in northern Germany. Although this
occurred in part through military action, just as important were the
committed pastoral activities and the revitalized educational system
brought by the Society of Jesus.
In contrast to the older monastic orders, which favored the con-
templative over the active life, the Jesuits actively engaged with this
world whatever its flaws. Founded in 1534 at the University of Paris
by the Basque soldier-turned-student Ignatius of Loyola and ap-
proved by Pope Paul III in 1540, the Society of Jesus sought to serve
God’s glory and save souls wherever it found them, from Europe’s
princely courts to hospitals and prisons to missions scattered across
the colonial empires.
Although it is well known for being extremely active in missions
throughout the world, in Europe itself the Society became increas-
ingly involved in education from its founding. By the beginning of
the seventeenth century, the Society of Jesus dominated higher edu-
cation throughout Germany’s Catholic territories. Their colleges,
Hellyer FM 4/14/03 12:51 PM Page ix

The image placed here in the print version has been intentionally omitted

Friedrich Spee von Langenfeld, 1591–1635. (Artist unknown.

By permission of Kölner Gymnasial- und Stiftungsfonds.)
Hellyer FM 4/14/03 12:51 PM Page x

x t r a n s l at o r ’ s i n t r o d u c t i o n
which taught a three-tiered curriculum of liberal arts, philosophy,
and theology, had been fused onto the moribund Catholic universi-
ties, not merely revitalizing the Catholic educational system but
enabling the Catholic lands to halt the spread of the Reformation
and, in many areas, reverse it.2 The Jesuits had been particularly
active in Cologne since the Society’s earliest days in Germany, and
the fruits of their efforts to revive the Catholic faith would have been
particularly striking to the young Friedrich in that city. Further-
more, Ignatius had impressed upon the Society as a whole his dis-
tinctive combination of a shrewd worldliness and an intense spiritu-
ality. Spee’s life was also marked by this combination, so it is perhaps
not surprising that when he left the Montanum and decided to
become a priest, he chose the Society of Jesus.
On September 22, 1609, Spee became a Jesuit novice, and from
this point on, his career, so closely tied to the Jesuit colleges, was in
many ways typical of a seventeenth-century German Jesuit. To be-
gin the long process of formation as a Jesuit, Spee was first sent to
Trier, where the Lower German province of the Society of Jesus had
its novice house. Forced by the plague to move, Spee completed his
two-year novitiate in Fulda, where he made his first vows as a Jesuit.
From 1612 to 1615 Spee completed the standard three-year philos-
ophy course at the Jesuit college which served as the philosophy
faculty of University of Würzburg, earning the degree of master of
arts. As in all Jesuit colleges, the curriculum consisted of a year each
of logic, natural philosophy, and metaphysics. The Aristotelian syl-
logistic logic that provided the foundation of the curriculum was
deeply engrained in Spee’s thought, and in the Cautio Criminalis he
used it repeatedly to expose and demolish his opponents’ arguments.
Before Jesuits embarked on their theological education, they
customarily taught the “lower” tier of studies, consisting mainly of
Latin and Greek grammar, poetics, and rhetoric. Spee spent four
years, from 1615 to 1619, teaching at the Jesuit colleges in Speyer,
Worms, and Mainz. In 1617, no doubt feeling a call from distant
lands and peoples waiting to hear the Gospels, he wrote to the gen-
eral superior of the Society of Jesus, Muzio Vitelleschi, asking to be
sent to serve in the overseas missions, but his request, like that of
many other young Jesuits, was refused. The general consoled Spee
by saying there was as much good work to be done in Germany as
there was in the Indies. In 1619 Spee began his theological studies
in the Jesuit college at the University of Mainz. He completed them
Hellyer FM 4/14/03 12:51 PM Page xi

t r a n s l at o r ’ s i n t r o d u c t i o n xi

in 1622 and in March of that year was ordained as a priest at the age
of thirty-one.
As was usual for young Jesuit priests with scholarly talents, Spee
was assigned to teach the three-year philosophy curriculum. He was
sent to the Jesuit University of Paderborn and accompanied one
class of students through the triennium. In addition to their aca-
demic duties, all Jesuit priests also engaged in pastoral activity, such
as hearing confessions, visiting prisons and hospitals, teaching cate-
chism to children and adults, and preaching in the city’s churches.
Spee himself taught catechism at the Church of St. Pankraz. This
combination of academic and pastoral missions featured throughout
Spee’s life.
Around this time Spee also began his literary activity in earnest.
He wrote many devotional songs, of which around a hundred ap-
peared anonymously in collections of hymns between 1621 and 1637.
He still has more hymns in the modern Catholic hymnal in Ger-
many than any other author. His authorship of many others is
still debated. Spee also wrote a collection of devotional poems, the
Trutz-Nachtigall (roughly, Despite the nightingale), a work of con-
siderable importance in the history of early modern German litera-
ture in which he consciously sought to show that poetry could be
written in the German vernacular, so that “God would have his
singers and poets in the German language.” In it Spee created a
Christianized “parody” of the pagan genre of pastoral poetry or
eclogue in which Christ often appeared as a shepherd suffering
for his flock, or as bridegroom whose bride, the Christian’s soul, he
had transfixed by the arrow of love.3 Spee’s Güldenes Tugend-Buch
(Golden book of virtues) was a catechetical work for women written
in the form of a dialogue between a confessor and a penitent struc-
tured around the cardinal virtues of faith, hope, and love or charity.
He continued to work on both books throughout his life. Both were
published posthumously in 1649 and continue to be published to-
day. Although his works are notable in many ways, the theme that
permeates them more than any other is love: the infinite love of the
Creator for his children, their love for him, and the love his children
should have for each other, that is, the virtue of charity. Spee’s faith
in God’s boundless love and his own love of his neighbor were to
permeate the Cautio Criminalis also.4
In 1626–27 Spee completed his training as a Jesuit with the ter-
tiate, the third year of his novitiate, in Speyer. At the end of 1627 he
Hellyer FM 4/14/03 12:51 PM Page xii

xii t r a n s l at o r ’ s i n t r o d u c t i o n
returned to the Tricoronatum in Cologne to stand in temporarily as
professor of philosophy. Although the local Jesuit provincial wanted
Spee to stay and teach philosophy in Cologne when the year was
over, the university rejected him because he had not graduated in
philosophy there. Instead he was sent in October 1628 as a mission-
ary to the town of Peine near Hildesheim to convert the region’s
Protestant inhabitants back to Catholicism. His aristocratic lineage
granted him access to the local nobility, and he seems to have had
considerable success in leading them back to the Catholic Church.
He also traveled constantly, visiting villages to say mass, hear con-
fessions, and teach catechism. On one of these trips, in April 1629,
he was ambushed by an unknown man and brutally attacked. Al-
though the assailant’s initial shot missed, he pursued Spee, severely
wounding him with numerous sword blows to the head. Staying on
his horse, Spee somehow managed to escape and reach the church
where he had been heading, but then he collapsed.
After spending several months recovering, Spee was sent back to
Paderborn to teach moral theology and conduct the moral theolog-
ical seminar at the Jesuit college. At the time, instruction in moral
theology focused on casuistry. Despite the negative connotations at-
tached to the term nowadays, casuistry is simply the application of
general moral rules such as the ten commandments to particular
cases (hence the term casuistry, from the Latin casus for case). Hear-
ing confessions from people at all levels of society, priests would reg-
ularly have to advise and judge people who were confronted by
moral dilemmas. But it was impossible to say whether a particular
act was sinful without situating it in context. Stealing was forbidden,
for example, but in particular circumstances it could be permitted.
Even killing was acceptable in particular cases. Training in casuistry
enabled priests to develop the moral virtue of prudence, with which
they could determine whether an act was a sin. Prudence features
throughout the Cautio Criminalis, for this, Spee argued, was the
virtue that allowed wise men to see the true sinfulness of witch trials.
Spee was a particularly skilled teacher of moral theology. Her-
mann Busenbaum, whose Medulla Theologiae Moralis became one of
the most frequently reprinted manuals of moral theology ever writ-
ten, acknowledged Spee as an influential teacher.5 Again, Spee’s
identity as a moral theologian permeates the Cautio Criminalis. In
many ways, the book can be seen as a skilled practitioner’s applica-
Hellyer FM 4/14/03 12:51 PM Page xiii

t r a n s l at o r ’ s i n t r o d u c t i o n xiii

tion of moral theology to the dilemma of witch trials, answering the

fundamental question, is it a sin to conduct witch trials?
In November 1630, during the academic year, the rector of
the Paderborn college, Hermann Baving, dismissed Spee from his
teaching position. He seems to have disagreed with the ascetic Spee’s
interpretation of the vow of poverty taken by all Jesuits and felt that
Spee could not be trusted to teach it correctly. Spee remained at the
college in the capacity of confessor. Although the circumstances sur-
rounding the writing of the Cautio Criminalis are still unclear, it is
probably around this time that Spee wrote the book. Certainly it
could not have been written before 1627, since Spee relied on vol-
ume 3 of Adam Tanner’s Universa Theologia Scholastica, published in
that year. Having been removed from his teaching duties, Spee
would now have had the opportunity to minister to accused and con-
demned witches in the prisons as well as to devote time to writing
the book.
In April 1631 the Cautio Criminalis was published anonymously
in Rinteln. It is not clear whether Spee was directly involved in the
publication of the book. In the conclusion to this first edition, the
publisher wrote that he was forced to commit a pious theft or fraud
(pium furtum) and publish the book without the author’s permission,
since he could not persuade the author to publish. This agrees with
the text of the book, in which Spee states several times that he was
reluctant to publish because of the difficulties encountered by others
who had criticized trials.
Spee himself did not escape this fate. Although the title page
refers to the author simply as “an unknown orthodox theologian,”
he was immediately identified as the author. On May 4, 1631, Suf-
fragen Bishop Johannes Pelcking of Paderborn wrote to the bishop
of Osnabrück that Spee had written “a most pestilent book” called
the Cautio Criminalis which slandered princes and judges and com-
pared witches to the first Christian martyrs. The book also risked
alienating the Society’s most powerful and generous benefactors
with its stinging criticism of the Catholic princes for their respon-
sibility for the excesses of the trials. But the Society’s hierarchy
seemed less concerned with the book’s content than with the man-
ner in which it appeared. All books published by Jesuits first had to
be read by the Society’s own censors and receive their imprimatur,
the official permission to publish. Circumventing this process was a
Hellyer FM 4/14/03 12:51 PM Page xiv

xiv t r a n s l at o r ’ s i n t r o d u c t i o n
flagrant violation of a Jesuit’s vow of obedience. However, General
Vitelleschi accepted Spee’s protests that the book had been printed
without his knowledge, and in October 1631 the local provincial
Goswin Nickel appointed him professor of moral theology at the
Jesuit college in Cologne.
However, just when the controversy was dying down and Vitel-
leschi was writing to Nickel to say that he was completely convinced
that the book had appeared without Spee’s knowledge and he could
make his fourth and final vow as a Jesuit, a second edition of the
Cautio Criminalis appeared, in the middle of 1632. According to the
title page it was published in Frankfurt, but recent scholarship sug-
gests that it was more probably published in Cologne itself. Al-
though the edition contains a foreword from Johannes Gronaeus of
Austria saying that he was financing the reprinting of the work at his
own cost, there is no record of such a person either in Frankfurt or
anywhere else; and the watermarks are those of Cologne printers.
Furthermore, in addition to the correction of the numerous typo-
graphical errors that plagued the first edition, there were several
minor textual additions.6 In any case, several of Spee’s Jesuit broth-
ers were appalled. Peter Roestius, professor of theology in Cologne,
wanted the book put on the papal Index of Forbidden Books.
Vitelleschi was now convinced that Spee was responsible for the
publication of the book. He thrice suggested to Nickel that he expel
Spee from the Society, but the provincial once again showed his sup-
port for Spee. He gave Spee the option to leave the Society and when
he declined, Nickel moved him away from the furor in Cologne and
appointed him once again professor of moral theology, this time in
Trier. One should note that Jesuits were not bound to obey an in-
struction if in conscience they felt that following it would mean com-
mitting a sin. As an experienced professor of moral theology, Spee
may well have thought that trying to save the hundreds and thou-
sands of innocent people executed in the witch trials justified this
particular act of disobedience. Nickel himself seems to have under-
stood this and may well have even approved of the content of the
Cautio Criminalis. Later, when Nickel was general superior of the
Society, he prohibited a Jesuit father in Paderborn from engaging in
exorcisms of witches and transferred him out of the city when he
refused to obey.7
Spee’s life was much less turbulent in Trier. He continued to
work on his Güldenes Tugend-Buch and Trutz-Nachtigall. In 1634 he
Hellyer FM 4/14/03 12:51 PM Page xv

t r a n s l at o r ’ s i n t r o d u c t i o n xv

was appointed professor of Sacred Scripture, in effect a promotion

and a sign that his reputation within the Society was restored, al-
though he was still not permitted to make his fourth vow. Unfortu-
nately, in 1635 Trier was caught up in the events of the Thirty Years’
War, enduring a siege and an outbreak of the plague. While attend-
ing to wounded soldiers, Spee himself caught the disease and died
on August 7, 1635. It is in keeping with his life that the last mention
of Spee in Jesuit records refers to him as a pastor to hospitals
and prisons (Visitator hospitalium et carcerum). He was buried in the
church of the Jesuit college in Trier, where his grave was recently
rediscovered. Spee had spent his entire adult life in the Society of
Jesus, and despite the difficulties he encountered with his fellows
and superiors, he never sought to leave it.
Spee’s Experience of Witch Trials
One of the most striking aspects of the Cautio Criminalis is its
author’s frequent appeal to his own experience in witch trials. Gott-
fried Wilhelm Leibniz recounted in his Theodicy a conversation he
had with Johann Philipp von Schönborn, the archbishop of Mainz
and bishop of Würzburg. Schönborn told Leibniz that when he was
a young canon in Würzburg he met Spee and asked why his hair had
already turned gray when he was still young. Spee responded that it
was because of the large number of condemned women he had ac-
companied to the bonfire. Although they had died horrible deaths,
he was sure that none of them were actually guilty. This is a point to
which he returns numerous times in the Cautio Criminalis.
Yet because of his efforts to preserve the anonymity of people
and places, it is not entirely clear what exactly his experiences con-
sisted of. Spee was active as a confessor in several German towns
that endured terrible witch-hunts, but a correlation of his career
with the chronology of the persecutions reveals that the worst ex-
cesses generally did not occur while he was present. Bishop Peter
Binsfeld had executed hundreds of people for witchcraft in Trier
around 1590, and no doubt Spee would have heard of these events
during his novitiate in that city, particularly since the Jesuits had
themselves been accused of witchcraft. Fulda also had endured
rounds of persecutions which took hundreds of lives some years
before Spee’s novitiate there. Similarly, the worst trials in Cologne
broke out after Spee had completed his theological studies there.
Because of Leibniz’s anecdote it has been claimed that Spee was
Hellyer FM 4/14/03 12:51 PM Page xvi

xvi t r a n s l at o r ’ s i n t r o d u c t i o n
present in Würzburg and perhaps the nearby city of Bamberg dur-
ing the persecutions of 1628–30, which must rank among the most
outrageous of the witch-hunts, claiming hundreds of victims, in-
cluding priests, young children, and even members of the bishop of
Würzburg’s family. However, the chronology of his career makes
this impossible. Also Spee had completed his philosophical educa-
tion and departed from Würzburg before the round of witch trials
that began there in 1616.
However, as was the case in much of Germany, the trials in the
Bishopric of Paderborn were reaching a peak between 1629 and
1631. This coincides exactly with Spee’s stay there. The surviving
archives are sketchy, but there are records of several trials in local
courts in the bishopric in 1629 and 1630. In the town of Büren, a
classic panic of the kind Spee described so accurately occurred dur-
ing which fifty people were executed in the space of one month from
mid-March to mid-April 1631.8 But as the Cautio itself appeared
around April 1631, it was probably completed by the time of this
particular persecution.
Furthermore, the Duchy of Westphalia, the unhappy site of some
of the most unscrupulous witch-hunting commissioners in Germany,
bordered directly on the Bishopric of Paderborn. Both territories
were ruled by the archbishop-elector of Cologne, Ferdinand von
Wittelsbach, a fanatical witch hater and supporter of trials. Many
small towns in the duchy which were only ten to twenty miles from
Paderborn suffered tremendously from the ravages of the commis-
sioners: Rüthen had 6 executions in 1629 and a further 5 in 1630;
Alme endured 12. Balve, admittedly further away from the border,
endured a horrifying 243 executions in 1628–30.9 After being re-
lieved of his teaching duties and having only the task of confessor,
Spee may well have been able to minister to the victims in these
neighboring towns. Thus there is no reason to doubt the authentic-
ity of his direct testimony, particularly since his account of the ori-
gin and conduct of trials agrees so closely with modern historical
scholarship.
Witch Trials in Germany
Although modern scholarship has sharply revised earlier esti-
mates of the total number of executions for witchcraft in Europe
downward to a hundred thousand or even fifty thousand for the core
period of trials from the late fifteenth century to the late seventeenth
Hellyer FM 4/14/03 12:51 PM Page xvii

t r a n s l at o r ’ s i n t r o d u c t i o n xvii

century, these persecutions were not spread evenly across time and
space. Germany was undoubtedly the center of the witch-hunts, with
perhaps half of all deaths occurring in the mosaic of territories mak-
ing up the Holy Roman Empire.10 Furthermore, even in Germany
periods of extended calm marked by small-scale or no trials were
punctuated by waves of large hunts taking place simultaneously in
numerous territories and claiming hundreds of victims. Spee was
himself acutely aware that the trials were a particularly German
problem, to its misfortune and shame: “Behold Germany, mother of
so many witches!” (Question 21; see also Question 2).
Spee was reporting from the center of one such massive per-
secution. To understand how the persecutions could occur and to
grasp Spee’s strategy, we need to be familiar with how witchcraft was
conceived of in early modern Germany. Spee was an accurate ob-
server, and his analysis of how witch-hunts exploded out of control
largely agrees with recent research. He was familiar with the wide-
spread superstition of the people, who saw witches behind every
unusual natural event (Question 2). Their fear, envy, gossip, and
malice were crucial in setting investigations in motion.11 But these
accusations would not have resulted in trials and burnings unless the
educated judges and lawyers who conducted them were not only
convinced of the existence of witches but also possessed of a partic-
ular conception of their crime. However irrational they may seem to
us today, learned conceptions of witchcraft were a completely coher-
ent and meaningful part of early modern constructions of reality.12
It was this coherence that prevented opponents of witch trials from
making much headway for so long.
Several elements were absolutely crucial to what has been termed
the cumulative conception of witchcraft.13 The first was the convic-
tion that the devil had the power to act physically in this world and
God actually allowed him to exercise this power. The devil was God’s
instrument in testing or punishing his flock. The sixteenth and early
seventeenth centuries were a period in which people were increas-
ingly obsessed with the devil’s power and presence on earth.
The next element was the witches’ pact with the devil. This was
their real crime. Women may have been denounced to the authori-
ties by their neighbors for spoiling milk or cursing children, but once
they were brought before learned judges, the nature of their crime
shifted. For judges and lawyers, witchcraft was primarily a spiritual
crime. By making a pact with the devil, witches had renounced God.
Hellyer FM 4/14/03 12:51 PM Page xviii

xviii t r a n s l at o r ’ s i n t r o d u c t i o n
Furthermore, since the social and political order was divinely sanc-
tioned, treason against God was also treason against his secular rep-
resentative on earth, the prince. Therefore, even witches who had
not actually harmed anyone could still be executed for the much
more severe crime of betraying God and allying with the enemy of
humankind. Contrary to modern misconceptions that the trials were
conducted by “the Church” or the Inquisition, throughout Germany
the trials were conducted by secular judges and commissioners, even
in territories ruled by Catholic prince-bishops.14 But even secular
legal officials shared the view of witchcraft as primarily a spiritual
crime. And while witchcraft theory stated that the witches were
usually seduced by the devil in disguise and lured into the pact—a
sequence of events often confirmed in the witches’ own testimony—
the witches were still held responsible for their crimes, since the devil
sought out disciples whose malice toward God and ill will toward
their fellows predisposed them toward him.
A further essential element of the cumulative conception in Ger-
many was the reality of the witches’ sabbath. This was where witches
sealed their pact with the devil, often by a kiss on his ass or sexual
intercourse. At these wild dances they celebrated with their master,
often performing inversions of Christian rituals such as desecrating
the host or murdering children for their blood. But it was the sab-
bath that permitted judges to identify witches. Since all the witches
saw each other there, if one witch could be made to name her accom-
plices, then all the witches could be detected. So the investigators’
main goal was to get the suspected witch to denounce her accom-
plices. The inquisitors often kept meticulous records of the number
of times a person was denounced. It was this element, absent from
learned conceptions of witchcraft in many other countries such as
England, that endowed trials in Germany with the potential to ex-
plode into mass hunts as ever widening circles of denunciations im-
plicated more and more suspects who had supposedly been seen at
the sabbath.
Aside from the occasional disturbed person who confessed vol-
untarily, nobody would willingly admit to being a witch. Since
witchcraft was a spiritual crime that left little or no physical evi-
dence, inquisitors had little to prove that someone was a witch. Thus
suspects had to be persuaded to confess through torture. Again, in
contrast to modern conceptions of the unrestrained brutality of
medieval and early modern criminal procedure, legal codes such as
Hellyer FM 4/14/03 12:51 PM Page xix

t r a n s l at o r ’ s i n t r o d u c t i o n xix

the Caroline Criminal Code, published under Emperor Charles V

in 1532 and in widespread use throughout various territories of the
Holy Roman Empire, as well as the rulings of most authoritative
legal scholars and commentators strictly regulated the evidence re-
quired for torture and its intensity and duration. For example, it
could only be used when there was already significant evidence indi-
cating the suspect’s guilt. Furthermore, because torture was not in
itself a punishment but a method of revealing the truth, it was not
meant to be unbearable. Ideally, it was a test by which an innocent
person could demonstrate her innocence or a guilty one confirm her
guilt. If the suspect withstood the torture, she had been vindicated.
Torture could not be repeated unless new, more incriminating evi-
dence arose. This was a good reason for judges to use torture reluc-
tantly, for by torturing a suspect they were also giving her the op-
portunity to vindicate herself.
Judges anxious to secure a confession, however, could circum-
vent these limitations by classifying witchcraft as an exceptional or,
literally, excepted crime (crimen exceptum), that is, one not subject
to the usual judicial procedures. They thereby simply ignored the
restrictions on torture or creatively circumvented them, for exam-
ple, by claiming they were not repeating torture but merely contin-
uing an earlier session. When no limitations were placed on the use
of torture, few people could resist it. To end their suffering they
would confess to anything and name anyone as their accomplice.
Since judges were not impartial arbitrators between prosecution
and defense but played an inquisitorial role in the proceedings, they
might put leading questions to the prisoner, asking her if she had
seen certain people at the sabbath, even though this too was prohib-
ited by proper legal practice. Once they had accumulated the num-
ber of denunciations of a particular person that met their arbitrary
standard, they brought the suspect in for interrogation and torture.
In those rare cases when a particularly hardy prisoner held out and
refused to confess, she could be tortured to death or executed as
obstinate for refusing to acknowledge her obvious guilt.
This combination of the learned conception of witchcraft with
the unregulated use of torture allowed investigations of individual
suspects to explode into mass panics resulting in the execution of
dozens or even hundreds of people. If the trials initially targeted
those who conformed to the traditional stereotype of the witch—
namely an older, impoverished, and often widowed woman—as more
Hellyer FM 4/14/03 12:51 PM Page xx

xx t r a n s l at o r ’ s i n t r o d u c t i o n
and more people were implicated by confessions as the trials spread,
the stereotype broke down. Suspects denounced members of the
elites, in particular the families of town councillors, often as con-
scious form of resistance. Although Spee lamented that the bonfires
would eventually consume everyone (e.g., in Question 8), at this
point the authorities suffered a “crisis of confidence” in the enter-
prise and its methods, to use Midelfort’s term; the use of torture was
restricted, allowing increasing numbers of suspects to maintain their
innocence, thereby further undermining faith in the trials, which for
a time were suspended.
There was no shortage of legal and clerical authors who sup-
ported witch trials and the use of torture. Perhaps the best known
today is the infamous Malleus Maleficarum (The hammer of witches)
of 1486, written by the German Dominican inquisitor Heinrich
Kramer. Although Spee referred to the Malleus Maleficarum, he de-
voted more attention to refuting two more-recent texts. Among the
many Jesuits who supported trials, the most prominent was the Bel-
gian Martin Delrio. His widely read Disquisitionum Magicarum Libri
Sex (Six books of magical investigations), which first appeared in
1589, was one of Spee’s chief targets. But the author who more than
any other was the subject of his withering critique was the suffragan
bishop of Trier Peter Binsfeld, who wrote the Tractatus de Confes-
sionibus Maleficorum et Sagarum . . . An, et Quanta Fides Iis Adhibenda
Sit (Treatise on sorcerers’ and witches’ confessions . . . whether and
how much they are to be trusted), which first appeared in 1591. Not
only had Binsfeld been one of the key figures behind a particularly
vicious round of witch-hunts in the Bishopric of Trier in the late
1580s and early 1590s, but he actively suppressed opposition to trials
by imprisoning Cornelius Loos for writing a critique of the trials
and forcing him to recant.
Opposition to Hunts
Loos was not the only skeptic in Germany. In fact, one of the
most valuable aspects of the Cautio Criminalis is that it functions as
a compendium of the most telling arguments against witchcraft cir-
culating in Germany in the early seventeenth century. Spee relied
heavily on a small number of sources. One should not overstate his
legal qualifications; most of the vast number of legal authorities he
cites are in fact taken from only two authors, the Italian jurists Pros-
per Farinacci and, much less frequently, Julio Claro. Furthermore,
Hellyer FM 4/14/03 12:51 PM Page xxi

t r a n s l at o r ’ s i n t r o d u c t i o n xxi

most of his citations from the Corpus Juris Civilis, the legal code
derived from Roman law widely used throughout Germany, are also
taken from a small number of authors. For example, the block of
seven citations from the CJC for excepted crimes that he gives in
Question 4 is taken almost verbatim from Binsfeld.15 He often im-
ports errors into his citations from his sources. The only section of
the CJC from which Spee cites directly is title 18 of book 48 of the
Digests, “De Quaestionibus” (On interrogations), which deals with
the use of torture.
Many of Spee’s arguments were in wide circulation. For exam-
ple, the parable of the tares (or weeds) from the Gospel of Matthew
is the traditional proof text for toleration of heretics. However, by
the seventeenth century it was being applied to witch trials.16 But
one specific source that Spee used was very important, for it gave
him access to the debates over witch trials which had had great suc-
cess in limiting witchcraft persecutions in Bavaria. In the wake of a
brutal round of trials in the 1590s, an influential group of Bavarian
jurists, noblemen, and government officials argued that the use of
torture in witch trials should be closely regulated in order to prevent
the false confessions which allowed the circle of suspects to widen.
Despite the strenuous efforts of a party committed to carrying out
trials, the skeptics were able to prevent individual trials from becom-
ing large-scale persecutions. As a result, Bavaria was spared the bru-
tal persecutions of the late 1620s which wracked many neighboring
territories.17
Although the members of the Society of Jesus in Germany had
on the whole been in favor of trials, one Jesuit theologian, Adam
Tanner, had had the opportunity to witness this debate while he was
a professor at the Jesuit college in Munich and at the Bavarian Uni-
versity of Ingolstadt. Tanner incorporated many of the arguments
against trials, and torture in particular, into the third volume of his
theology textbook, Universa Theologia Scholastica, which appeared in
1627.18 Spee drew heavily on Tanner’s work, and many of his most
important arguments can be found in the Theologia Scholastica: that
the use of torture makes the death of innocent people inevitable,
that several denunciations are not sufficient to warrant torture, that
torture may not be repeated, just to mention a few.19 Spee also cited
the Theologia Moralis of another southern German Jesuit, Paul Lay-
mann, who was himself influenced by Tanner.
The opposition to hunts in the northern German territories
Hellyer FM 4/14/03 12:51 PM Page xxii

xxii t r a n s l at o r ’ s i n t r o d u c t i o n
seems to have been much less vocal and effective. Early in the sev-
enteenth century, some universities had issued rulings recommend-
ing that torture be used only with great caution, but this was not
sufficient to prevent an outbreak of major persecutions in the later
1620s. In the Electorate of Cologne, for example, special witch-
hunting commissioners armed with virtually unlimited power and
the enthusiastic support of the archbishop-elector, the fanatical Fer-
dinand von Wittelsbach, had thrown all caution and restraint to the
wind. Spee was no doubt writing about the elector of Cologne’s com-
missioners when he wrote about inquisitors who said they would tor-
ture Adam Tanner if they caught him. Such threats were actually
made; the superior of the Jesuit house in Lippstadt, Johannes
Quinken, reported to the provincial that the elector’s commission-
ers had decided not to allow any more Jesuits to tend to accused
witches because they suspected these confessors of witchcraft, and
one commissioner had even said that he would prosecute Tanner if
he could get his hands on him.20
But even at this time doubts were still being voiced, and there
was a thriving market for books on the question of witchcraft and
witch trials. For example, in 1629 a Cologne printer published a vol-
ume containing excerpts from various authors on the question of
witch trials, including substantial passages from Tanner and Lay-
mann.21 As Spee himself indicated, there was a heated debate at the
time over the reliability of the so-called witch’s mark or stigmata as
a method for detecting witches (Question 43). So Spee was by no
means alone in his criticism of trials, but his work remains the most
compelling. Let us turn to an examination of the content of the
Cautio Criminalis to see why this is so.
The Argument of the Cautio Criminalis
To follow the argument of the Cautio Criminalis, it may help to
regard it as the work of a moral theologian who must advise princes
confronted by a particularly knotty moral dilemma. The structure of
the quaestio, which had been used in university disputations since the
Middle Ages, was particularly well suited to treat such issues. In each
chapter a question is put, generally in a yes-or-no form, which Spee
answers with a range of evidence. Often an imaginary interlocutor
raises objections that Spee must overcome. Sometimes the inter-
locutor is not satisfied, resulting in a brisk cut-and-thrust of oppos-
Hellyer FM 4/14/03 12:51 PM Page xxiii

t r a n s l at o r ’ s i n t r o d u c t i o n xxiii

ing arguments. Usually each question follows from the preceding

one, resulting in a logical, coherent progression.22
Spee acknowledges that Germany’s princes have a divinely man-
dated duty to wield the sword of justice and protect their people
against Satan and his servants. But how best to do that—by recklessly
persecuting and burning witches or by strictly supervising trials and
eliminating every chance that innocent people could be harmed?
Spee was already convinced of the latter path, but the overwhelming
task confronting him was to persuade the princes of that. One ap-
proach that may strike the modern reader as the obvious one was
ruled out: Spee does not attempt to disprove the existence of witches.
Whatever his own convictions regarding the actual existence of
witches, Spee was aware that any attempt to save the victims of the
trials by denying the reality of witchcraft was doomed to failure.
Although Johann Weyer had dismissed witchcraft primarily as a de-
lusion among old women some years earlier, virtually no Catholic
authors openly agreed with him in the early seventeenth century.
Several hints suggest that Spee may have doubted the existence
of witches; for example, he wrote that he was completely convinced
“beyond any doubt that among fifty women condemned to the
bonfire there are scarcely five or even two who are guilty” (Question
29). But such hints are few, and it is quite possible that Spee did
genuinely believe in the reality of demonic pacts and witchcraft. He
begins the Cautio by explicitly acknowledging (Question 1) that
witches do exist, even though he had at times doubted it; (Question
2) that there are witches in Germany; and (Question 3) that their
crime is the worst possible and is in fact one of a small group of
heinous crimes referred to as excepted crimes (Question 4). In gen-
eral Spee accepts rather than questions the fundamental elements of
the learned conception of witchcraft, such as the devil’s ability to act
in this world and the reality of the witches’ sabbath.
The approach that had worked so successfully in Bavaria offered
Spee a good model. The key to saving innocent victims lay in re-
forming and regulating judicial procedure. Spee was convinced that
if trials were conducted carefully then innocent people would be
spared. So he introduced the fundamental question: granted that this
evil exists, are harsh inquisitions the best way for the princes to elim-
inate it (Questions 6–9)? The answer was no if the princes allowed
trials to be conducted so recklessly that they endangered innocent
Hellyer FM 4/14/03 12:51 PM Page xxiv

xxiv t r a n s l at o r ’ s i n t r o d u c t i o n
people. Such was the confidence of the times in the validity of trials
that Spee had to demonstrate that not only was it possible for inno-
cent people to be convicted but that this had in fact occurred (Ques-
tions 10 and 11). The appendix to the work is a historical illustration
demonstrating that for whatever reasons God did allow innocent
people to be unjustly killed, as had happened during the Roman per-
secutions of the early Christians. Spee nowhere stated that trials must
be ended outright; rather he simply insisted that trials must be halted
if there were insufficient safeguards in place to prevent innocent peo-
ple being harmed (Question 12). Thus much of the first half of the
Cautio outlines general procedural protections that all prisoners are
entitled to, even those accused of excepted crimes. This section con-
cludes with Question 17, which provides twenty corollaries listing
the prisoner’s rights: the presumption of innocence, the right to a
lawyer and the opportunity to mount an effective defense, the oppor-
tunity to appeal the decision to use torture, and so on.
However, Spee was well aware that the fundamental conditions
that allowed trials to spread without limit were the unregulated use
of torture, the use of denunciations made by confessed witches for
arresting and torturing further suspects, and the use of rumors and
reputation to justify arrest and torture. Not surprisingly, these three
issues occupy the bulk of his attention: Questions 20–31 address tor-
ture itself; Questions 32–50 discuss the evidence used to justify tor-
ture, in particular rumors and denunciations. Spee argues that once
all limitations on the use of torture have been eliminated, then no-
body can uphold their innocence. We cannot be sure whether some-
one who confessed under torture truly is guilty or whether she did
so only to avoid further suffering. In the end, it all boils down to this
question: how can a truly innocent person exonerate herself once
she has been brought in to be tortured? As Spee remarks, the judges
themselves could not answer this question (Question 20, Reason
16). Thus the princes were bound by the Christian virtue of charity
to suspend trials until they instituted procedures that guaranteed
innocent people the ability to defend themselves successfully.
Spee knew that most trials were initially based on rumors, and
the circle of suspects was then widened ever further by denuncia-
tions. But he insisted such evidence was legally insufficient for tor-
turing someone. If a rumor was unproven, then it had absolutely no
value as evidence. Consequently, several or even many rumors com-
bined still had no value. Far from conducting trials on the basis of
Hellyer FM 4/14/03 12:51 PM Page xxv

t r a n s l at o r ’ s i n t r o d u c t i o n xxv

rumor, the prince has a duty to prevent slander. One suspects that
Spee is making a black joke when he writes that the prince “should
investigate those poisonous tongues and cut them out of the slan-
derers and liars and nail them to the pillory” (Question 34).
Spee also questions the validity of denunciations made by con-
fessed witches. First of all, judges often asked prisoners leading ques-
tions, mentioning suspects by name, thereby violating all norms of
judicial procedure; an innocent person who confessed under torture
would implicate the suspects named just to escape further pain. On
the other hand, what value was a witch’s testimony? Since a witch
was the servant of Satan and the sworn enemy of humankind, if she
knew that she was herself doomed, then she was much more likely
to take some innocent people with her to the bonfire rather than her
fellow witches. And who could say whether a confessed witch was
telling the truth, even if she wanted to? Perhaps what she claimed to
have seen at the sabbath was merely an illusion created by the devil
(Questions 47–48). Thus rather than openly rejecting contemporary
demonology, Spee used it to undermine the key evidence in trials. In
short, it seemed contrary to justice to torture people on the basis of
denunciations, no matter how many times they had been denounced.
In his efforts to undermine the reliability of denunciations ex-
tracted from accused witches, Spee questions the witches’ credibil-
ity. Since in Spee’s experience most of those tortured were female,
he denigrates women’s credibility in a way we today find quite cal-
lous. In Question 8 he asks what kinds of women are tortured: “Often
delirious, insane, fickle, babbling, changeable, cunning, lying, per-
jurous ones.” Elsewhere he questions the ability of women to with-
stand torture: “Who does not know how feeble an animal woman is,
how intolerant of suffering, how prompt her tongue? Indeed, if men,
even pious ones, as we have said above, are so weak in spirit that
they would prefer death to torture, what are we to presume of that
fragile sex?” (Question 20).23
It is difficult to know whether this represented his own views on
women, in which case he simply shared the prejudices of his time, or
whether he was consciously drawing on those prejudices in order to
save innocent women, much as he pragmatically accepted demono-
logical doctrine in order to undermine the validity of denunciations.
In other places Spee could emphasize women’s strength. He noted
that some women manage to hold out against three or even more
sessions of torture—a striking contrast to his assessment of own
Hellyer FM 4/14/03 12:51 PM Page xxvi

xxvi t r a n s l at o r ’ s i n t r o d u c t i o n
capacities: “if I were brought in to be interrogated I would not hes-
itate right at the beginning to declare myself guilty of any witchcraft
whatsoever and embrace death rather than such torments” (Ques-
tion 20).
A crucial aspect of the Cautio is that Spee refuses to relax judicial
procedures in cases of excepted crimes (Questions 36–38). He grants
that the punishment meted out in excepted crimes may be more
severe than in others, but judges are still bound to follow normal pro-
cedures in trying them. They may not use a lower standard of evi-
dence to employ torture, they may not use longer or more severe
tortures, they may not convict on a lower standard of proof. In fact,
the more severe the accusations made against someone, the stronger
her claims to basic rights; not only is a person accused of witchcraft
permitted a lawyer, but she must have one imposed on her whether
she wants one or not.
Such then is an outline of the content of the Cautio Criminalis,
but we should also note how Spee makes his case. First, he appeals
to personal experience and thus endows his work with an immediacy
and power that can still move readers today, almost four centuries
later. Repeatedly he refers to what he himself has encountered (a
woman rushing to him for advice after she was denounced) or to what
he has learned in direct conversation with those who have had first-
hand experience (the judge who could no longer serve on the bench
because he realized that none of those he had condemned were
guilty). Spee, the former student and professor of rhetoric, makes
good use of the dichotomy between those who have witnessed trials
themselves, and consequently have recognized their futility, and
those scholars who, even if perhaps well intentioned, blithely rec-
ommend the harshest methods of proceeding against witches from
the heated comfort of their studies, blissfully unaware of the filth of
the prisons and the brutality of torture (Questions 16 and 48, for
example). If one compares Spee’s text with the vast erudition of works
such as Martin Delrio’s Disquisitionum Magicarum, with its endless
tales of witches, werewolves, and other magical and demonic crea-
tures, Spee’s learning seems paltry. But his use of textual authorities
is deliberately limited; to add source after source would be to wage
the battle on his opponents’ turf. He is not trying to wear his oppo-
nents and the reader down by the weight of his erudition, but to win
another way. When he does appeal to authorities, it is not to let them
Hellyer FM 4/14/03 12:51 PM Page xxvii

t r a n s l at o r ’ s i n t r o d u c t i o n xxvii

make his argument for him, but to show that his view is not novel or
unique.
Spee was aware that his appeal to his own direct experience of
trials, however moving to us who instinctively agree with him, was
not sufficient to convince his contemporaries. After all, some inquisi-
tors, including the highly respected judge and author Nicolas Rémy,
had sent hundreds of women and men to the bonfires and were not
troubled by the slightest doubts. There were numerous local exam-
ples in the Electorate of Cologne of judges with similar records.
Their experience dwarfed Spee’s. Thus he had to do more than just
recount his experiences; he had to directly refute his opponents’
arguments. To do this, he differentiated between the intrinsic and
extrinsic weight of arguments. The former refers to the strength of
the argument itself, the latter to the authority of those supporting
the argument. Spee conceded that his opponents might have been
able to deploy arguments with greater extrinsic authority, but for him
that counted for little. The extrinsic authority of an argument was
worthless if its intrinsic authority had not been examined and shown
to hold up: “Authority alone does not render an opinion very prob-
able or safe unless its authors have embraced it only after consider-
ing the evident weight of the arguments that can be deployed against
it” (Question 8). Thus Spee repeatedly addresses and demolishes the
intrinsic weight of his opponents’ arguments.
Whatever his talent for writing mystic poetry and devotional
songs, Spee was no fuzzy thinker. Repeatedly he appeals to reason
and natural law, as opposed to the authorities his opponents rely on.
I argue with reason rather than endless examples, I argue with rea-
son rather than jeers, he states, once again rhetorically distinguish-
ing his approach from his opponents’. In his withering use of formal
logic, we again see Spee the professor at work. After all, he had stud-
ied and taught logic at Jesuit colleges, and moral theology was based
just as much upon natural law, the order of the world which God
created and which the sound mind could detect and follow, as it was
upon Scripture. So Spee frequently sets out his own or his oppo-
nents’ arguments in the form of a syllogism, that is, a conclusion that
follows inevitably from two correct premises. He is thereby able to
reject his opponents’ arguments either because their major or minor
premises are not valid or because the conclusion does not necessar-
ily follow from the premises.
Hellyer FM 4/14/03 12:51 PM Page xxviii

xxviii t r a n s l at o r ’ s i n t r o d u c t i o n
In other places Spee notes that his opponents’ reasoning is cir-
cular, that is, it assumes as true the very thing it is attempting to
prove. In Question 48 Spee exposes his opponents’ claim that God
would not permit the devil to create images of innocent people at
the sabbath who are actually not present: “Why are those seen at a
sabbath validly considered guilty? Because God does not permit
innocent people to be represented there. Why, however, does God
not permit it? Because misfortune follows, since those seen there are
regarded as guilty. See how little attention my adversaries pay to
dialectics today! A because B, and B because A. Has no one recog-
nized this circle until now?”
Spee was also a skilled rhetorician. We have seen this in the way
he constructs binary positions: direct experience versus empty eru-
dition, reason versus authority. His skill can be illustrated with a fur-
ther example, his use of a standard rhetorical tool, the concessio: I
grant what you claim but nevertheless your argument does not hold,
in fact it even supports my conclusion. Take for example his grant-
ing for rhetorical purposes of his opponents’ claim that those who
confess under torture to being witches are actually witches. Who
then are they more likely to denounce as their accomplices and
thereby send to the bonfire? Fellow witches and servants of Satan,
or the truly innocent? The combination of all three—experience,
logic, and rhetoric—makes the Cautio Criminalis a remarkably clear-
sighted attempt to cut through the intellectual quagmire surround-
ing witch trials.
While many of Spee’s arguments may strike us as being blind-
ingly obvious, they certainly could not be taken for granted at the
time. For most of his contemporaries, what was blindingly obvious
was that witches could be detected through the use of torture and be
compelled to denounce their accomplices. Real witches would not
denounce innocent people because torture compelled them to tell
the truth, the supporters of torture and trials argued. So Spee probes
further, methodically pulling their arguments apart, subjecting them
to the test of the syllogism. By what power does torture make some-
one tell the truth? How does someone whose testimony is inher-
ently unreliable, such as a witch, suddenly become reliable once they
have been tortured? He has seen the power of torture and knows
that it can force anyone, himself included, to say whatever the tor-
turer wants.
Hellyer FM 4/14/03 12:51 PM Page xxix

t r a n s l at o r ’ s i n t r o d u c t i o n xxix

Yet Spee had to steer clear of one last trap. As a Jesuit moral the-
ologian, he adhered to the doctrine of probabilism, that is, when con-
fronted by a choice of actions one need not choose the one that is
more morally safe or probable, but one can choose the lesser, pro-
vided that it has some probability, which means that it is supported
by reputable authorities. This is one reason Spee did not need to
show that more authorities supported his view, but only that some
did. Probabilism, however, was a double-edged sword. His opponents
could also argue that their view did not lack its own probability, so
the princes could continue to torture and burn witches in good con-
science. Here Spee played a trump card: “In doubtful cases the safer
path must be chosen. Even if this rule has only the weight of advice
in other cases, it nevertheless acquires the force of a maxim when
there is any danger that some harm will otherwise come to our neigh-
bor, as the casuists teach” (Question 50). Thus in the end it is the
Christian virtue of charity, the duty to keep our neighbor out of
harm, that rules out trials. The Cautio is an examination of the moral
dilemma of whether the princes should try witches or not. The
answer Spee reached was that if they could not ensure that trials will
not harm the innocent, then they must halt them. In the end, their
own salvation was at stake.
The Enduring Appeal of the Cautio Criminalis
If Spee relied so heavily on other authors such as Tanner, what
then is the significance of the Cautio Criminalis? Identifying sources
does not in any way diminish the work’s importance—novelty is not
the only measure of work’s value. The continuing appeal that makes
this book stand out among the shelves of works written on the sub-
ject of witchcraft stems from a combination of many factors. We
have noted its moving use of personal experience, its relentless logic,
its skilled if understated rhetoric. In addition, Spee deploys irony to
good use: the witch-hunters say that witchcraft is the most secret
and occult of crimes, but “I ask you, how hidden is it if we can so eas-
ily perceive it that there is no other crime in the world for which so
many criminals have been brought to light and continue to be daily,
as my adversaries themselves think?” (Question 50). There is also
the lively disputation format, which holds the reader’s attention.
Disputations in which students argued opposing sides of a particu-
lar thesis were a fundamental part of Jesuit pedagogy, and Spee
Hellyer FM 4/14/03 12:51 PM Page xxx

xxx t r a n s l at o r ’ s i n t r o d u c t i o n
shows himself here to be a master of the art. The cut and thrust of
argument and counterargument elevates the work above a dry, text-
book discussion.
But more than anything, we are moved by Spee’s willingness to
stand up and criticize those in power. Spee is not the ivory tower
professor he so despises. He takes upon himself the duty of moral
theologian and confessor. He concludes the work with a reference to
the Prophet Isaiah: “They [the princes] should not be astonished if
I harshly and boldly admonish them from time to time, for it is not
fitting for me to be among those whom the Prophet calls mute dogs
who are not strong enough to bark” (Question 51). Throughout
the Cautio Criminalis we see Spee the moral theologian barking in
various ways. No one involved escapes his reprimand—bishops, the
superiors of religious orders, confessors, highly respected scholars,
his fellow Jesuits, virtually the entire legal profession with its judges,
inquisitors and lawyers, the mass of the people for their gossiping,
slander, envy, and superstition. Even the emperor himself is not
spared.
But Spee lays the prime responsibility for the unjust executions
of innocent people on the princes. In early modern demonology the
reign of the devil and his minions the witches was a reflection of this
world turned upside down.24 Yet Spee argues that, through their
negligence, the princes themselves were creating the witches and
inaugurating the inverted kingdom of the devil in this world. Be-
cause of the witch-hunts, Spee lamented, true Christians were being
forced to hide their piety and ignore their obligations of Christian
charity; others were forced to flee Christendom and live among the
Moslems rather than stay and be tortured. Spee himself had to ad-
vise upstanding women to admit that they were guilty of making a
pact with the devil. Was this not what the devil himself would have
wanted? In short, while the princes justified the trials by saying they
were trying to save their states, they were actually destroying them.
It is to the princes and their advisers that the book is directed,
for they are the ones with the power to stop the trials, although Spee
laments in the preface, in some of his most powerful ironical writ-
ing, that those who really need to read the book will not, while those
are willing to read it already possess what they will get out of it. The
princes will be called to account for their willful, culpable ignorance
of how trials are actually conducted, if not in this world, then the
next: “At the final judgment of the living and the dead I will reveal
Hellyer FM 4/14/03 12:51 PM Page xxxi

t r a n s l at o r ’ s i n t r o d u c t i o n xxxi

how I know it to those rulers who should also know these things and
whom so many innocents will justly summon before the tribunal that
day—and I will summon them too” (Question 49, Argument 10).
His love of his neighbor, so prominent both in his other writings
and in a career spent ministering to high and low, stands out again
here. Spee was seeking to save the innocent who were being perse-
cuted without reason. He warns us that it is better that ten guilty
people go free than that one innocent person be punished.25 The
trials did not just put people in physical danger, but in moral danger
as well. That is, fearing for themselves they could be driven to sin by
denouncing others. Trials also endangered innocent people’s salva-
tion because they could lead them into despair.
The instructor of future priests, Spee devotes a substantial chap-
ter to teaching witches’ confessors what they must know to fulfil their
ministry properly (Question 30). Perhaps no one earned Spee’s scorn
more than the priests who broke the seal of the confessional to pass
information on to the prosecutors. Confessors had to do whatever
they could to ensure that the prisoners, whether guilty or not, made
a sincere sacramental confession, and if the prisoners could not trust
the priest then they would not confess and would die in sin. If the
priest could not save their lives, then he could still save their souls.
But Spee was also seeking to save the princes and judges who were
endangering their own salvation by conducting trials recklessly. It
was this love or charity—the most important of the three theologi-
cal virtues of faith, hope, and love—that drove him not only to write
the Cautio Criminalis but to skirt the Society of Jesus’s censorship,
which might have prevented it from ever appearing.
In his admonitions to the princes and the judges, Spee’s work
still has relevance for our times. Some of his recommendations may
sound obvious to us: that the accused must be granted a lawyer and
the opportunity to prepare a defense, to know the charges and evi-
dence against her. But even in modern democracies, when dealing
with the most heinous crimes —the excepted crimes, to use Spee’s
term—we are often tempted to sacrifice such procedural guarantees
in the hope of protecting society. Terrorism and the sexual abuse of
children, for example, are such horrible crimes that surely we may
relax the standards of proof required for a conviction if it means pre-
venting such crimes from occurring again. Spee was familiar with
this seductive argument but cautions us against it in Questions 36–
38. If you accuse me of a minor crime which smears my reputation
Hellyer FM 4/14/03 12:51 PM Page xxxii

xxxii t r a n s l at o r ’ s i n t r o d u c t i o n
mildly, you grant me a lawyer, yet when you accuse me of the most
horrific crime possible and threaten me with death and dishonor you
deny me the right to defend myself. Natural law and right reason
reveal the inconsistencies in this reasoning. Does the fact that Spee
was sure there were no witches, or virtually none, whereas we are
equally sure that terrorists and sexual predators are actually working
their evil, undermine his contention that even when trying the most
atrocious crimes we must adhere to the norms of judicial procedure?
The Effect of the Cautio Criminalis
Even though Spee never published a German translation of the
Cautio Criminalis, the vernacular translations he hoped for soon ap-
peared in several European languages: German in 1647 and 1649,
Dutch in 1657, and French in 1660.26 Nevertheless, we should be
cautious about overestimating the influence of the Cautio Criminalis.
Despite the foreword to the second edition, claiming that the first
edition had been enthusiastically received and was already prompt-
ing people to reconsider trials —which is probably more a brilliant
piece of self-advertising than truthful reporting—the Cautio cer-
tainly did not end trials throughout Germany, although particular
princes, such as the archbishop of Mainz Johann Philipp von Schön-
born, may well have been prompted to exercise more caution, if
Leibniz’s account is to be believed.27
There was no one book or event that ended witch trials in Ger-
many. Midelfort has argued that, in their orgies of destruction, the
German witch trials burned themselves out. The trials that spread
until no one was safe created a crisis of confidence in the reliability
of trials resting on torture and denunciations.28 The skeptics gradu-
ally won the upper hand. The Imperial Chamber Court in Speyer,
which had always been moderate in its attitude to trials, granted the
appeals made by those threatened with torture, and even the em-
peror intervened against particularly brutal princes such as the bishop
of Bamberg. Across Germany, increasingly strict restrictions were
placed on the use of torture, as had been the case in Bavaria around
1600. Certainly trials continued past the middle of the century—a
persecution of some magnitude broke out in some German territo-
ries in the 1660s, and there were isolated trials and executions well
into the eighteenth century—but excesses on the scale of the late
1620s did not return.
It is more accurate to regard the Cautio Criminalis as expressing
Hellyer FM 4/14/03 12:51 PM Page xxxiii

t r a n s l at o r ’ s i n t r o d u c t i o n xxxiii

increasingly widespread skepticism about the efficacy of witch trials,

rather then being the cause of such skepticism. Nevertheless, as the
most articulate mouthpiece of this movement, Spee’s work became
a valuable resource in the campaign against trials. For example, the
French translation of 1660 was published as part of an effort to halt
a wave of persecutions in Franche-Comté in the late 1650s.29
Ironically, despite the controversy that marked the Cautio’s ini-
tial publication, Spee’s authorship of the book was soon forgotten.
Like the original Latin editions, the vernacular translations did not
name Spee as the author. The work itself was largely ignored, and
few Germans writing on witch trials in the second half of the seven-
teenth century mentioned the book. At the beginning of the eigh-
teenth century the jurist Christian Thomasius was converted by the
Cautio from supporting witch trials and was prompted to write his
own famous work against trials. But he was completely ignorant of
the author’s identity. In fact he found the work so rational that he
thought that it must have been written by a Protestant who was
deliberately hiding his identity by attributing the work to a Catholic
theologian!30 Thomasius did not correct his mistake until 1712.31
The first edition that identified Spee as its author was a Latin edi-
tion published in Augsburg in 1731.
With the Enlightenment Spee came to be seen as a torchbearer
of rationality struggling against medieval superstition and irration-
ality.32 In the years after the Second World War, he was held up as
an example of “the good German,” so lacking in Germany’s recent
history, who spoke up in defense of the oppressed.33 Unfortunately
such interpretations often overstated Spee’s originality by neglect-
ing to situate him in the context of the witchcraft debates.
The fact that many of Spee’s arguments were not original does
not devalue his work. Its rhetorical skill and the authority of direct
experience make the Cautio Criminalis stand out among the endless
volumes devoted to witchcraft and witch trials. Beyond its literary
merits and intellectual rigor, it stands as an example of an individ-
ual’s willingness to speak out, to disobey and antagonize the power-
ful in order to save those who are in danger. In a work that de-
nounces false confessions, Spee provides an example of true and
sincere confession.
Hellyer FM 4/14/03 12:51 PM Page xxxiv

xxxiv t r a n s l at o r ’ s i n t r o d u c t i o n

Notes
1. There is very little on Spee’s life in English. The most accurate biograph-
ical data is provided by Theo G. M. van Oorschot, S.J., “Die Lebensdaten,” in
Friedrich Spee im Licht der Wissenschaften: Beiträge und Untersuchungen, ed. Anton
Arens (Mainz: Selbstverlag der Gesellschaft für Mittelrheinische Kirchenge-
schichte, 1984). Emmy Rosenthal’s full-length biography, Friedrich Spee von Lang-
enfeld: Eine Stimme in der Wüste (Berlin: W. DeGruyter, 1958), is now rather
dated, and no biographical treatment taking into account modern scholarship on
witch trials has yet been written.
2. On the founding and early mission of the Society of Jesus, see John W.
O’Malley, The First Jesuits (Cambridge, Mass.: Harvard University Press, 1993).
James Brodrick’s Saint Peter Canisius (Chicago: Loyola University Press, 1962)
covers the activities of the most important of the first Jesuits in Germany.
3. In some manuscripts of the Trutz-Nachtigall there are fifty-one poems, as
opposed to the fifty-two in the printed editions. One wonders if it is mere coinci-
dence that there are fifty-one questions in the Cautio Criminalis, but if there is a
link it has remained obscure.
4. For a brief treatment of the Trutz-Nachtigall, see Robert M. Browning,
German Baroque Poetry, 1618–1723 (University Park: The Pennsylvania State
University Press, 1971), 46–55. Theo G. M. van Oorschot has also produced crit-
ical editions of the Güldenes Tugend-Buch (Munich: Kösel, 1968) and the Trutz-
Nachtigall (Bern: Francke, 1985).
5. Recently a student’s manuscript of a two-year lecture course in moral the-
ology given in 1633–35 was found and published by Helmut Weber as Theologia
Moralis Explicata: Ein Friedrich Spee zugeschriebenes Werk aus der Zeit des Dreißig-
jährigen Krieges (Trier: Spee Buchverlag, 1996). Despite initial hopes that the
course was given by Spee, it has been firmly established that the lectures were not
his (whatever the subtitle of this edition may suggest) but were delivered by a
Jesuit who had studied under Spee. It does, however, permit considerable insight
into the way moral theology was taught in Spee’s day.
6. Gunther Franz persuasively argues that the second edition was published
in Cologne with Spee’s complicity in “Friedrich Spee und die Bücherzensur,” in
Friedrich Spee zum 400. Geburtstag, ed. Gunther Franz (Paderborn: Bonifatius,
1995).
7. Bernhard Duhr, S.J., Die Stellung der Jesuiten in den deutschen Hexen-
prozessen (Cologne, 1900), 78–84.
8. Rainer Decker, “Die Hexenverfolgungen im Hochstift Paderborn: For-
schungsstand, Quellenlage und Zielsetzung,” Westfälische Zeitschrift 128 (1978):
315–56.
9. Gerhard Schormann, Hexenprozesse in Nordwestdeutschland (Hildesheim:
Lax, 1977), 92–107; Schormann, Der Krieg gegen die Hexen: Das Ausrottungspro-
gramm des Kurfürsten von Köln (Göttingen: Vandenhoeck & Ruprecht, 1991);
Rainer Decker, “Die Hexenverfolgungen im Herzogtum Westfalen,” Westfälische
Zeitschrift 131/32 (1981–82): 339–86.
10. Brian P. Levack, The Witch-Hunt in Early Modern Europe (London: Long-
man, 1987), 22, estimates around 100,000 executions. Wolfgang Behringer, Hexen:
Hellyer FM 4/14/03 12:51 PM Page xxxv

t r a n s l at o r ’ s i n t r o d u c t i o n xxxv
Glaube, Verfolgung, Vermarktung (Munich: C. H. Beck, 2000), 66 and 75, estimates
little more than 50,000 executions, of which 25,000 were in Germany.
11. On village life and accusations of witchcraft, see Robin Briggs, Witches
and Neighbours: The Social and Cultural Context of European Witchcraft (New York:
Viking, 1996).
12. Stuart Clark, Thinking with Demons: The Idea of Witchcraft in Early Mod-
ern Europe (Oxford: Clarendon Press, 1997).
13. H. C. Erik Midelfort, Witch Hunting in Southwestern Germany, 1562–
1684: The Social and Intellectual Foundations (Stanford: Stanford University Press,
1972), chap. 2; and Levack, Witch-Hunt, chap 2.
14. Even when Spee uses the term “an inquisition,” he is referring to a secu-
lar court, not an ecclesiastical one.
15. I have tried to keep footnotes to a minimum in this translation. For more
complete notes on Spee’s sources, see Theo G. M. van Oorschot’s critical edition
of the Cautio Criminalis (Tübingen: Francke, 1992).
16. Roland H. Bainton, “Religious Liberty and the Parable of the Tares,” in
Early and Medieval Christianity, Collected Papers in Church History, Series 1
(Boston: Beacon Press, 1962).
17. Wolfgang Behringer, Witchcraft Persecutions in Bavaria: Popular Magic,
Religious Zealotry and Reason of State in Early Modern Europe (Cambridge: Cam-
bridge University Press, 1997).
18. On the Society of Jesus and witch trials, see Duhr, Die Stellung der
Jesuiten, esp. 45–53, on Tanner. Also see Behringer, Witchcraft Persecutions, 245ff.,
on Tanner.
19. See Johannes Dillinger, “Adam Tanner und Friedrich Spee: Zwei Gegner
der Hexenverfolgung aus dem Jesuitenorden,” Spee Jahrbuch 6 (2000): 31–58.
20. Schormann, Der Krieg gegen die Hexen, 132.
21. The volume, published by Constantus Munich, was titled Diversi Tracta-
tus de Potestate Ecclesiastica: Coercendi Daemones circa Energumenos & Maleficatos, de
Potentia ac Viribus Daemonum. De Modo Procedendi adversus Crimina Excepta; Prae-
cipue contra Sagas & Maleficos . . .
22. An exception would be Question 30, which offers practical advice to con-
fessors and does not directly contribute to the development of the argument.
23. Although the ratio of male to female victims varied from region to region,
modern scholarship suggests that in Germany around 75 percent of victims on
average were female. Spee usually uses feminine pronouns or generic names (e.g.,
Gaia, Titia, or Sempronia) to refer to the victims, but not exclusively (e.g., some-
times Titus, Sempronius). Also, in many cases Latin pronouns do not distinguish
between genders.
24. Clark, Thinking with Demons, chap. 5.
25. Again, this was a common trope. Even Martin Delrio, who was in favor
of trials, warned that it was better for ten guilty people to avoid punishment than
for one innocent to be condemned.
26. For a complete list of all editions and translations, see van Oorschot’s edi-
tion, 497–548.
27. On the reception of the Cautio Criminalis, see Hugo Zwetsloot, S.J.,
Friedrich Spee und die Hexenprozesse: Die Stellung and Bedeutung der Cautio Crimi-
Hellyer FM 4/14/03 12:51 PM Page xxxvi

xxxvi t r a n s l at o r ’ s i n t r o d u c t i o n
nalis in der Geschichte der Hexenverfolgungen (Trier: Paulinus Verlag, 1954), in par-
ticular chap. 9.
28. Midelfort, Witch Hunting, chap. 6. On the general decline of trials, see
also Behringer, Witchcraft Persecutions, chap. 5.
29. E. William Monter, Witchcraft in France and Switzerland: The Borderlands
during the Reformation (Ithaca: Cornell University Press, 1976), 84–85.
30. Christian Thomasius, De Crimine Magiae (1701) (Munich: Deutscher
Tachenbuch Verlag, 1986), 40–43.
31. Christian Thomasius, Processus Inquisitorii contra Sagas (1712) (Munich:
Deutscher Tachenbuch Verlag, 1986), 214.
32. A view that is still widespread. See, for example, the introduction to the
German edition currently published by the Deutscher Taschenbuch Verlag trans-
lated by Joachim-Friedrich Ritter.
33. Most prominently in Rosenthal’s 1958 biography, Friedrich Spee.
Hellyer FM 4/14/03 12:51 PM Page xxxvii

notes on the translation

This translation is based on the second edition of the Cautio Crimi-
nalis, which corrected many of the errors of the first. I have tried to
keep notes to the minimum necessary for the general reader’s com-
prehension. For full notes identifying all of Spee’s sources, the reader
should consult Theo G. M. van Oorschot’s excellent 1992 critical
edition of the Cautio Criminalis, a veritable monument of erudition.
Spee frequently made mistakes in citing sources he took from other
sources. The errors are corrected here on the basis of van Oorschot’s
notes. My additions (primarily references to the Corpus Juris Civilis)
are in square brackets.
All translation projects present problems. While the translator
tries to be consistent, always using the same English word for a par-
ticular Latin word when possible, certain words are difficult. One of
the most intractable is reus, which refers to the suspect at every stage
of the judicial process, from when the victim is first denounced or
otherwise suspected to execution. In the interests of readability I
have not translated reus consistently throughout, but have used the
English that seemed best to suit the particular stage of proceedings.
On the other hand, I have consistently translated, for example, pru-
dens and its variations as “prudent” because of the rhetorical use
Spee makes of the term and its crucial function in moral theology.
Hellyer FM 4/14/03 12:51 PM Page xxxviii
Hellyer text 4/14/03 12:52 PM Page 1

Cautio Criminalis, or A Book on Witch Trials.

Currently Necessary for THE RULERS of Germany,

but also very useful for the Princes’

COUNSELORS AND CONFESSORS,

Inquisitors, Judges, Lawyers, Prisoners’ Confessors,

Preachers, and Others

to read.

BY AN UNKNOWN ROMAN THEOLOGIAN

second edition.

frankfurt,

Published by Johannes Gronaeus of Austria.

1632.
Hellyer text 4/14/03 12:52 PM Page 2
Hellyer text 4/14/03 12:52 PM Page 3

Greeting to the Reader

Regarding the second edition of this book.

When the first edition of this book, furnished with the permission
of the Faculty of Law at Rinteln,* was published some time ago by
Peter Lucius, the university printer in that town, it prompted the
minds not only of many extremely pious men but also of extremely
learned men to think that the question of the multitude of witches
in Germany should be examined carefully and without prejudice,
and, following the example of Daniel,† that the highest authorities
should now seriously investigate the trials conducted so far. Since
the book pricked the consciences of several states and princes, they
immediately suspended the trials after they had seen and carefully
read it, especially once it was revealed to them how little their com-
missioners and judges upheld the Criminal Code of Charles V,‡ even
in certain matters of great importance, which virtually no one had
noticed until now. So it appeared expedient to many people, even
several at the Imperial Chamber Court in Speyer§ and at the Impe-
rial court, that it be printed again at once to pave the way for further
examining and eliciting the truth, especially since this is a question
of human blood and of the reputation not only of Germany but also
of the Catholic faith. As all the copies of the first edition were quickly

* The obscure University of Rinteln was founded in 1621 as a Protestant univer-

sity, but at this stage of the Thirty Years’ War it was occupied and administered by
English Benedictine monks. The reference to a permission granted by the law
faculty may well be a fabrication.
† Daniel 13, the story of Susanna—an appendix to the book of Daniel included in
the Vulgate but not the modern Revised Standard Version.
‡ The Constitutio Criminalis Carolina (Caroline Criminal Code) was published in
1532 at the command of Emperor Charles V. It functioned very loosely as the
criminal code across the Holy Roman Empire.
§ The Imperial Chamber Court in Speyer functioned as a court of appeal in the
Holy Roman Empire. Although in general skeptical of witch trials, it had little
authority to enforce its decisions.
Hellyer text 4/14/03 12:52 PM Page 4

4 cautio criminalis
sold out within a couple of months, none could be had at any price.
Therefore, in order to meet the great demand, I had it reprinted at
my own expense, using a copy of the manuscript that a close friend
sent to me from Marburg. Enjoy it and farewell.
Johannes Gronaeus of Austria.
I.C.*

* I.e., Jurisconsultus, a legal scholar. According to Gunther Franz, there is no

record of Gronaeus either as a printer or publisher in Cologne or Frankfurt or as
a lawyer or courtier in Vienna. It appears then that he is a fiction. The “not only
. . . but also” construction, used twice in this passage, is one Spee himself employs
repeatedly throughout the Cautio Criminalis.
Hellyer text 4/14/03 12:52 PM Page 5

EPITOME or SUMMARY OF THE BOOK.

I saw under the sun in the place of righteousness, wicked-

ness, and in the place of justice, injustice. The words are
from Ecclesiastes 3:16.

Now then, O kings, know and be warned, you who are rulers of the earth.
The words are David’s, Psalms 2:10.
Hellyer text 4/14/03 12:52 PM Page 6
Hellyer text 4/14/03 12:52 PM Page 7

Author’s Preface.

I wrote this book for the rulers of Germany, at least for those who
will not read it, not those who actually will read it. The reason is that
those rulers who are concerned enough to think that they should
read what I have written here about witch trials already have what
they are supposed to get out of the book, namely care and conscien-
tiousness in examining these cases. Therefore there is no need for
them to read this book and learn from it. Those rulers, however,
who are so negligent that they will not read and take notice of such
things are the ones who really should read this book and learn how
to be careful and conscientious from it. Thus those who will not
read it, should read it; those who will, should not.
Nevertheless, whether someone reads this book or not, I hope
that there is no one who does not at least read its last Question and
weigh it carefully in his mind. In fact, it would be neither pointless
nor in the wrong order to read this last Question before the others.
Hellyer text 4/14/03 12:52 PM Page 8
Hellyer text 4/14/03 12:52 PM Page 9

Index
to the Doubts or Questions of this Book.*

1. Whether witches, hags, or sorcerers really exist. 15

2. Are there many witches or sorcerers in Germany and
elsewhere. 16
3. Of what sort is the witches’ or sorcerers’ crime. 18
4. Whether this crime is of the excepted kind. 18
5. Whether one may conduct trials arbitrarily in excepted
crimes. 19
6. Whether the princes of Germany act well when they
proceed harshly against witchcraft. 20
7. Whether this evil can be adequately extirpated by this
harsh method? and whether it can be by any other way? 21
8. How cautiously princes should conduct trials in this
crime. 23
9. Whether princes relieve their consciences sufficiently if
they show too little concern and assign all responsibility
to their officials. 28
10. Whether it is credible that God would ever permit
innocent people also to become entangled in these trials. 36
11. Whether it is credible that he has actually permitted
innocent people to become entangled as well. 38
12. Whether inquisitions against witches should cease if it is
established that many innocent people have actually been
entangled in them. 42

* In the original text, the titles of the Questions provided in the index are not
always identical to those at the start of the Questions themselves.
Hellyer text 4/14/03 12:52 PM Page 10

10 cautio criminalis
13. What if danger threatens innocent people through no
fault of my own, whether we should also cease persecuting
the guilty. 44
14. Whether it is beneficial to incite princes and rulers
into an inquisition against witches. 47
15. Who in particular are the people who continually incite
the rulers against witches. 49
16. How can care be taken in witch trials so that innocent
people are not put in danger. 52
17. Whether prisoners in cases of magic should be permitted
a defense and granted a lawyer. 58
18. What corollaries should one gather from the preceding
discussion? 63
19. Whether prisoners accused of witchcraft should
immediately be presumed to be completely guilty. 68
20. What should be thought of tortures, whether they put
innocent people in moral and frequent danger. 72
21. Whether someone accused of witchcraft may be tortured
often. 86
22. Why many judges hardly acquit any suspects these days,
even if they clear themselves through torture. 90
23. Under what pretext does it appear that one may repeat
torture without any new evidence. 91
24. How a scrupulous judge, who does not dare to torture
without any new evidence, can easily find some. 95
25. Whether the sorcery of silence is new evidence. 98
26. What is usually alleged by the malicious and ignorant to
be signs of the sorcery of silence. 101
27. Whether torture is a suitable method for revealing
the truth. 104
28. What are the arguments of those people who immediately
think that the things which the accused confess under
torture are true. 106
Hellyer text 4/14/03 12:52 PM Page 11

cautio criminalis 11

29. Whether torture should be dropped from use, since it is

clearly dangerous. 112
30. Which lessons above all do we think should be taught to
witches’ confessors. 113
31. Whether it is proper for the torturer to shave women
before torture. 127
32. For what reasons may one proceed to torture. 128
33. Who is to judge whether evidence is of the kind that can
be considered an almost-full proof. 130
34. Whether rumor alone, unsupported by clear and firm
proof, provides sufficient evidence for torture. 132
35. Whether rulers are obliged at the present time to
seriously investigate and punish slanderers and libelers. 138
36. Whether rumor alone is sufficient for torture, at least
when the crimes are difficult to prove. 141
37. Whether in general proofs that are not sufficient in
common crimes suffice in excepted and occult crimes
which are difficult to prove. 144
38. Whether the axiom used everywhere that in occult
crimes difficult to prove one may move to torture more
easily than in other crimes is in no sense true. 149
39. Whether someone who has confessed nothing under
torture may be condemned. 150
40. Whether a retraction made at the place of execution
of a crime previously confessed should be granted any
weight. 155
41. What is to be presumed about women who are found
dead in prisons. 162
42. When it may be judged in good conscience that a corpse
has been strangled by itself or by the devil. 166
43. What should be thought about stigmata; whether they
are a valid sign for recognizing witches. 167
Hellyer text 4/14/03 12:52 PM Page 12

12 cautio criminalis
44. Whether much should be made of denunciations of
accomplices in the crime of magic. 170
45. Whether denunciations should at least be believed
because of the denouncers’ repentance. 180
46. Whether denouncers should at least be believed if it is
infallibly certain that they have truly repented and want
to say the truth. 184
47. Whether the devil can represent innocent people at
witches sabbaths. 187
48. What are the arguments of those who say that the devil
cannot represent innocent people at dances. 189
49. What are the arguments of those who consider
denunciations by witches to be completely trustworthy,
and say they suffice for torturing those denounced. 198
50. Whether a judge can safely embrace either opinion:
those people’s who reject denunciations or those who
think much of them. 212
51. What is a brief summary of the method used by many
judges in witch trials today, fitting for the noble emperor
to comprehend and Germany to study. 214
52. Appendix: What can tortures and denunciations achieve. 223
Hellyer text 4/14/03 12:52 PM Page 13

SENECA, De beneficiis, book 6, chapter 30.

I will show you

what great men are in need of, what
those who possess everything lack, namely
one who speaks
the truth.
Hellyer text 4/14/03 12:52 PM Page 14
Hellyer text 4/14/03 12:52 PM Page 15

Cautio Criminalis, or A Book On Witch Trials

Question I. Whether witches, hags, and sorcerers really exist?

i answer, they do. Even if I know that many doubt it, even
Catholics and scholars, whose names are not relevant here; even if
some men seem to suspect, not without reason, that there were
times in the Church when people did not believe that there were
physical witches’ sabbaths;* even if, when I myself frequently and
attentively, not to mention curiously, ministered to various women
accused of this crime in prison, my own mind was often so over-
whelmed that I hardly knew what to believe in this matter. Never-
theless, when I finally gathered together the essence of my per-
plexed thoughts, I concluded that one must believe completely that
there really are some sorcerers in the world. This cannot be denied
without rashness and all the marks of a preposterous opinion. You
may read the authors who argue that they do exist: Rémy, Delrio,
Bodin, and others.† It is not our intention to dally here. However,
neither I nor many pious men along with me believe that there are
so many witches, nor that all those who have flown away in ashes
until now were witches. Indeed, anyone who wishes to examine the

* This is a reference to the Canon Episcopi (ca. 906), which stated that the noc-
turnal flights of women on beasts with the goddess Diana were nothing more than
superstition.
† Nicholas Rémy (ca. 1525–1612), also known as Remigius, was a witch-hunting
judge in the Duchy of Lorraine. His work on witches and their demonic crimes,
Demonolatry, first appeared in 1595 and was soon translated into German. He
boasted on the work’s title page of having executed 900 witches. The persistent
rumor that he eventually went insane and was executed after accusing himself of
witchcraft is false, despite its appealing message of just desserts. Martin Delrio
(1551–1608) was a Jesuit and author of a widely read encyclopedic work on magic
in all its forms, Disquisitionum Magicarum Libri Sex (Six books of magical investi-
gations) (1599). Jean Bodin (1530–96), the influential French political philoso-
pher, was also a bitter enemy of witches and wrote De la démonomanie des sorciers
(The demonomania of the sorcerers) (1580), a work widely read by witch-hunters.
Hellyer text 4/14/03 12:52 PM Page 16

16 cautio criminalis
matter with judgment and reason, and not pressure me with his pas-
sion and shouting or with his authority, will not easily convince me
to believe it either. This, I greatly pray, is what my reader will want,
through the love which Christ our Lawgiver ardently wished to kin-
dle among his followers. If anyone zealously gnashes his teeth at the
crime of witchcraft, let him restrain himself for a moment and add
to his zeal the knowledge and contemplation which he perhaps does
not yet have. Not every passion comes from virtue, for certain ones
come from nature alone. Virtue is moderate and modest and loves
to be instructed, and therefore does not fear becoming less when she
is more learned. For if we are overcome by passion and imagine that
we know everything, we refuse to learn. How then is it remarkable
if the truth escapes us in many matters? So with your prejudices
modestly put aside, Reader, follow me where I will lead you step-by-
step with your hand in mine. You will not regret considering many
matters deliberately and thoroughly.
Question II. Are there many witches or sorcerers in Germany and
elsewhere?
i answer, this question deals with a matter of which I am igno-
rant. However, I will state briefly, in order to avoid idle words, how
it appears to me. There do at least appear to be, and there are
thought to be, more witches in Germany than elsewhere.
this is the reason. First of all, it is well known that across
Germany bonfires are burning everywhere which should consume
this plague—this is a clear proof anyhow of how thoroughly conta-
minated everything is acknowledged to be. Indeed Germany’s name
has been considerably disparaged among our enemies, and, as Scrip-
ture says, Exodus 5:21, you have made our odor stink before Phar-
aoh and his servants.
Next, we foster this opinion about witches among our common
folk through two sources, which are worth noting.
the first is the ignorance or superstition of the common folk, which
I will reveal this way. All natural philosophers teach that even those
things which from time to time depart from the regular order of
nature and which are usually called extraordinary, such as a very
heavy downpour, particularly harsh hail and frost, imposing thun-
der, and the like, have completely natural causes.
Doctors also teach that animals, no less than humans, suffer from
Hellyer text 4/14/03 12:52 PM Page 17

question ii 17

their own diseases, and often many new dispositions exist in humans
and animals which the doctors themselves have not explored suffi-
ciently; that there are many marvels hidden in nature which from
time to time burgeon forth into the light to the wonder of those
who are ignorant of the richness of nature; that the greatest sage of
any past century has not been able to grasp all of nature’s powers in
his investigations. Doctors teach this, but should anything of the
sort appear in Germany—particularly among the peasants —should
some plague infect cattle, should the sky storm and rage more vio-
lently than usual, should a doctor not know the cause of some new
disease, or a very old disease not obey his art, in short, should any-
thing inauspicious happen which is thought to be out of the ordi-
nary, then some sort of shallowness, superstition, or ignorance im-
mediately leads us to turn our thoughts to sorcery and conclude that
witches are the cause. Then we exclaim that we hold the source of
the evil in our hands. In a sinister interpretation, we lay the blame
on anyone we perhaps saw walking by, standing around, or coming
while it was happening, or by chance doing or saying this or that (for
something will always have happened just before, during, or after),
and—this is our spiteful nature—we stir up suspicion throughout
the whole district. So it is not surprising if within a few years such
growing rumors make us rich in witches, especially since preachers
and clergymen do not rouse themselves against such tales, but rather
are themselves equally at fault. Furthermore, no ruler has yet been
found in Germany, as far as I know, who has devoted his energies to
those pestilent mutterings, which I will speak about below, in Ques-
tion 35. Other nations are more cautious, and it is to our shame that
we have been surpassed by them, for among them if a boy or a cow
sickens, or a tree is struck by lightning, or a crop suffers disaster, or
a storm causes poverty, or locusts or mice consume a field, they
attribute the origin of the evil entirely to God or nature, and only
ascribe to witches those things which they manifestly perceive, and
scholars judge, to surpass the laws of nature.
the second source is the jealousy and malevolence of the common
folk, which I will show this way. Every other nation admits that there
are always some people upon whom God bestows some greater
blessing in worldly goods, so that they can sell all their things faster
than anyone else, buy with more good fortune than anyone else,
and, in a word, grow wealthier than anyone else. But should this
Hellyer text 4/14/03 12:52 PM Page 18

18 cautio criminalis
happen among the common folk in Germany, then immediately a
couple of people in the neighborhood from whom luck has shied
away put their heads together and stir up the suspicion of magic with
their fictitious mutterings. Then, if they should see one of the peo-
ple of whom they are jealous being more devout in church, saying
his rosary anywhere other than in church, or kneeling in prayer in a
field or prostrate in his room, they grow bolder. There is no short-
age of examples that make me ashamed of the Germans’ reputation.
It is an unworthy matter, and one clearly unheard of among other
nations, who have blocked up both of these springs, so that there are
fewer witches among them than among us. However, I will not say
that there are no witches at all. I concede that there are, but I will
add, as the prudent reader will easily understand from the things I
will say below, that if people act in the way that I say they now do
everywhere, then it is absolutely inevitable that among the huge
number of people incinerated there will be many innocent ones, and
truly nothing will be more uncertain in Germany than the number
of guilty ones.
Question III. Of what sort is the witches’ or sorcerers’ crime?
i answer, it is the most enormous, the most serious, the most
atrocious.
the reason is that the most enormous crimes come together
in it: apostasy, heresy, sacrilege, blasphemy, homicide, even parri-
cide, often unnatural sexual intercourse with a spiritual creature, and
hatred of God—nothing can be worse than this. These are Delrio’s
words, book 5, section 1, whose arguments I will examine in detail
in another book. The matter needs to be examined afresh and care-
fully, and one can say what Daniel did, 13:49: Return to the court.*
Question IV. Whether this crime is of the excepted kind?

* Daniel 13 is the story of Susanna. During the Babylonian captivity two Hebrew
magistrates tried to blackmail Susanna, threatening to have her executed for adul-
tery if she did not have sex with them. When she refused to submit, they accused
and condemned her in public. As she was being led to her execution, Daniel called
out, “Return to the court, because they have spoken false testimony against her.”
He then examined the magistrates separately; because there were discrepancies in
their accounts, it was clear that they had fabricated the charges against an inno-
cent woman, and they were in turn executed. The story is included at the end of
the Book of Daniel in the Vulgate, but is counted among the Apocrypha in Protes-
tant Bibles.
Hellyer text 4/14/03 12:52 PM Page 19

question v 19

i answer, it is. Note that lawyers generally state that there are
two kinds of crime. The first is the common or general sort, such as
theft, murder, and the like. The second is more atrocious and seri-
ous; it leads more directly toward harming the community and strikes
at the state in a remarkable way. Such crimes include the crime of high
treason, l. fin. C. de accusationibus [C. 9, 2, 17], l. quoniam liberi, C.
de testibus [C. 4, 20, 11] &c.; the crime of heresy, cap. in fidei favorem,
l. 6 de haereticis [C. 1, 5, 6]; the crime of witchcraft, l. fin. C. de mal-
eficis & mathematicis [C. 9, 18, 9]; the crime of treason, l. penul. & fin
C. ad legem Iuliam Maiestatis [C. 9, 8, 5 & 6]; the crime of conspiracy,
c. fin. de testibus cog. [C. 4, 20]; the crime of counterfeiting, l. fin. C.
de fals. monet. [C. 9, 24, 3]; the crime of banditry, l. Divus Adrianus,
ff. de custodia & exhibit reor [D. 48, 3, 6ff.], & l. penult. C. de feriis
[C. 3, 12, 8], which are generally called excepted crimes.* They have
this name because they are excepted from the common or ordinary
administration of the law, so that there is no need to restrict oneself
to the method of conducting trials which the law prescribes in other
cases.
This is because they are so dangerous to the state and can wound
it so extraordinarily that it seems just to suppress them by extraordi-
nary means also.
Question V. Whether one may therefore conduct trials arbitrarily
in excepted crimes?
i answer, it is not permitted.
the reason is that even if they are excepted from what human
positive laws prescribe,† as I have already said, nevertheless they are
not excepted from what human reason or natural law prescribes. So
in the end, whatever kind of trial is conducted against them, either
inside or outside standard legal procedure, it is nonetheless neces-
sary that nothing in the way it is conducted be contrary to sound rea-
son. This is inherently obvious and does not need proof, for no one
says that something contrary to reason is permitted. I am reminding
you of this because I have noticed that there are some judges who

* Spee took this list of crimes along with the legal citations from Peter Binsfeld,
Tractatus de Confessionibus Maleficorum et Sagarum . . . An, et Quanta Fides Iis Ad-
hibenda Sit (Treatise on sorcerers’ and witches’ confessions. Whether and how
much they are to be trusted) (1589).
† I.e., laws made by human authorities.
Hellyer text 4/14/03 12:52 PM Page 20

20 cautio criminalis
are more arbitrary than is proper when they investigate witches, jus-
tifying everything they do by saying it is an excepted crime. So if
they had untrustworthy evidence, if they used torture excessively, if
they were too credulous, if they denied someone a defense, and sim-
ilar things that depart from reason, they use the following defense as
a shield: it is an excepted crime and in excepted crimes there is very
broad scope for proceeding arbitrarily, as I will be repeating often.
But unless we wish to be manifestly unfair, all judges should have
fixed before them this general principle and unshakable axiom: in
any crime, whether excepted or not, one may not conduct a trial in any way
other than sound reason permits. Furthermore, it is completely false
to say that one is permitted simply to depart from everything that is
prescribed by positive laws. To depart from particular laws may be
permitted, but not from all laws, and no law allows us to conclude
otherwise. Thereby the ignorance of many judges is sufficiently re-
vealed. Farinacci,* question 37, number 90, rightly teaches that this
doctrine—namely that it is permitted in excepted crimes to neglect
the letter of the law—either is strictly speaking false or should be
understood to refer only to punishment; once the investigation is over
and guilt has been established, then the punishment may be more
severe than the laws otherwise prescribe. This is the opinion of
very many scholars whom he cited but we omit here for the sake of
brevity. On this issue read also Mascardi,† volume 3, conclusion 1311.
Be this as it may, we shall not linger here, for it is beyond dispute
that whatever is contrary to sound reason is not permitted in trials
of excepted crimes.
Question VI. Whether the princes of Germany act well when they
proceed harshly against witchcraft?
i answer, far be it from me to find fault with our rulers when
they eagerly rouse themselves against this crime. God wishes that

* Spee’s main legal source was the Praxis et Theorica Criminalis (Criminal practice
and theory), first published in 1605 by the extremely influential Italian jurist Pros-
pero Farinacci (1554–1618). It devoted considerable attention to the use of tor-
ture in criminal trials and in general placed severe restrictions on its use. Usually
Spee does not cite legal authorities directly but rather from Farinacci.
† Giuseppe Mascardi (d. 1588), De Probationibus (On proofs), which appeared in
numerous editions including several published at Frankfurt from 1585. Since the
citation of 1311 is not accurate, it is probable that Spee in his usual fashion was
not citing directly.
Hellyer text 4/14/03 12:52 PM Page 21

question vii 21

they command us and that we obey them. They have their reasons,
which their counselors tell them, and they are the following:
reason i. They are purging (so they say) the state of a singular
plague which spreads like a cancer and harms through contagion.
reason ii. They are preventing the harm and ruin which the
slaves of Satan never cease to scheme for us.
reason iii. They are fulfilling their duty and calling. For as the
Apostle* said in the Letter to the Romans 13 concerning the ruler,
He does not bear a sword in vain; for he is the instrument of God to deliver
his wrath upon the evildoer. If, contrary to the common good, they
neglect to punish the guilty without legitimate cause, then they sin
most gravely and become accomplices in the crime ex. c.1 de offic. &
potest. Iudicis de leg. and according to Innocentius, Baldus, Decius,
Barbatius, Panormitano, and other scholars. Then they are held to
restitution of all damages consequently suffered either by the state
or by private individuals, as defined in the said c. de Offic. de leg. and
is also the common opinion of the theologians St. Thomas Aquinas
[Summa Theologiae], 2.2, q. 62; Sylvester, Cajetan in summa V. restitu-
tio; Dominico de Soto, De Iustitia & Iure, book 4, q. 7, art. 3; Med-
ina, in Cod. de rebus restituendis, and others whom it is too long to
enumerate.†
reason iv. They display their zeal to protect God’s honor when
they move against his chief enemies with the noose and flames.
Therefore they act well and cannot be reproached—moreover Scrip-
ture admonishes us: You shall not permit sorcerers to live (Exodus
22:18).‡
Question VII. Whether this evil can be adequately extirpated by
this harsh method? and whether it can be by any other way?
i answer, however many witches the princes burn, they will
never burn out the evil unless they burn everything. They are rav-
aging their lands worse than any war could, and yet they achieve
nothing. This matter should be lamented with tears of blood. There
are some, therefore, who suggest more mild means, among whom

* I.e., St. Paul.

† This paragraph with all its citations is taken virtually verbatim from Binsfeld’s
Tractatus de Confessionibus.
‡ This is the standard proof text from Scripture used to justify the execution of
witches.
Hellyer text 4/14/03 12:52 PM Page 22

22 cautio criminalis
the eminent theologian Tanner of the Society of Jesus excels, it seems
to me, through his discretion and prudence in book 3 of his Theolo-
gia, disputation 4: “On Justice,” question 5, doubt 4, numbers 123ff.*
The means he suggests would undoubtedly benefit the state, if our
princes wished to listen. As for myself, if I may speak candidly, I have
frequently turned my mind to this matter and tried to work it out,
and I know that many other people have poured out many sighs and
prayers to God to send down some ray of his light which might teach
us how to dispel such a fog. But I see that it is the condition of the
times that even if something could be found to achieve such a result,
it would not carry any weight with Germany’s rulers. For this reason
I have not yet been able to convince myself that I should reveal any-
thing to the public, when I do not know how their favor and dispo-
sition will treat me. But if any one of our highest rulers has the will
and curiosity to dare and desire to understand and to begin the first
experiment in a new undertaking, within a single year he will redeem
his entire province from this universal plague so completely that
there will be nothing in it more rare than [NB in margin] the crime
of witchcraft. If there is such a ruler, I say, who seriously wants to
know it and thinks that it would benefit his conscience and his state
to try it, then I have a friend, a cleric, who would like to teach him
the singular undertaking he has discovered. He is willing to wager
his life that it will not fail. I have seen it and examined it and, how-
ever much I devote my mind to it, I cannot find a mistake in it. Rather
it will most surely accomplish its aims. In fact I am quite amazed that
many others have not already thought of it. But enough has been said
already, and what the inventor wants to offer to the ears of the will-
ing alone should be wrapped in silence and hidden. Our Lawgiver
taught that there are twelve hours in the day and some land is good

* Adam Tanner’s Universa Theologia Scholastica, 4 vols. (Ingolstadt, 1626–27), was

Spee’s most influential source. Tanner (1572–1632) was a Jesuit who taught the-
ology for many years at the Jesuit college in Munich and at the Bavarian Univer-
sity of Ingolstadt, where he was exposed to the ongoing debates among Bavarian
government officials, judges, and professors over the effectiveness of witch trials.
From the early seventeenth century, the party that opposed witch trials gained
the upper hand, and after this very few witches were executed in Bavaria compared
to many other German states. Tanner presents this cautious and skeptical position
in his Universa Theologia Scholastica. On Tanner, see Wolfgang Behringer, Witch-
craft Persecutions in Bavaria: Popular Magic, Religious Zealotry and Reason of State in
Early Modern Europe (Cambridge: Cambridge University Press, 1997), 245–53,
268.
Hellyer text 4/14/03 12:52 PM Page 23

question viii 23

and other land useless, and if you sow in the latter then it is just as if
you had thrown the seed into the waves of the ocean.* Therefore,
where there is time and the right soil, do not spare your seed [mar-
ginal note: “Damascene in the life of Barlaam”].† Perhaps I shall say
something which prudent men will understand. The matter is easy
and ready at hand, insignificant yet significant, known to all yet un-
known to all.
Question VIII. How cautiously should princes and their officials
conduct trials in this crime?
i answer, just as princes do not act badly when they proceed
sharply against this crime, so they act badly, and indeed in the worst
way possible, when they proceed without caution, prudence, and
circumspection. Not only is the prince not permitted to act against
this crime more arbitrarily and negligently than usual because it is
an excepted crime, but he must watch with greater attention and
care than in any other capital crime, lest in some way an illegal and
confused trial be conducted.
We must grant that in some ways it is permitted to conduct trials
differently in the excepted crime of witchcraft than is usual in regu-
lar crimes. However, I deny that it is permitted to act with less cau-
tion and circumspection than is usual in regular crimes, for trying
excepted ones requires exceptional diligence, attention, care, and
circumspection, beyond those needed with other crimes. Here are
the reasons why:
reason i. This crime is completely secret, as everyone admits.
It is usually committed at night amid shadows and in disguise.
Therefore you need great prudence and reflection to bring it prop-
erly to light.
reason ii. We see that once a witch trial has begun, then it is
prolonged for some time and the number of people punished grows

* John 11:9–10: “Jesus answered, ‘Are there not twelve hours in the day? If anyone
walks in the day, he does not stumble, because he sees the light of this world. But
if any one walks in the night, he stumbles, because the light is not in him.’” The
parable of the sower who throws some of his seed on rocky ground and some on
fertile soil is Matthew 13:3–9 and 18–23, which immediately precede the parable
of the weeds, to which Spee frequently refers.
† The story of Barlaam and Joseph is traditionally ascribed to St. John Damascene
(c. 675–749), although it is probably based on the life of the Buddha. It is not clear
what episode Spee is referring to here.
Hellyer text 4/14/03 12:52 PM Page 24

24 cautio criminalis
until entire villages are consumed. Nothing is achieved other than
that the transcripts are just as full of the names of still more suspects.
Indeed if the crime were stubbornly pursued further, there would be
no end to the flames until the whole region had been wasted. Never
has a prince been found who was not forced to break off the trials.
To this very day, a prince has always had to put an end to the trials;
they have never reached one themselves. Since the matter is so seri-
ous and so enormous, can there be any diligence great enough to
prevent an error occurring which also entangles innocent people in
these trials? Especially since once a single woman is implicated, in-
numerable others will inevitably continue to be implicated, as I will
show below.
reason iii. If it should happen that innocent people are also
slaughtered by this hurricane because of an imprudent trial, then
great evils will redound against the state. Undoubtedly there will be
many unjust executions, but in addition if those people who seem
more pious than others are also swept away as if by a universal tor-
rent, then it will bring disgrace and shame not only upon the most
noble families but also upon the Catholic religion itself, as, Tanner
rightly notes, our enemies loudly proclaim. Recently I heard from
prominent men that in some places such malevolence has descended
that if anyone there dares in the manner of very pious Catholics to
say his rosary more diligently or carry it with him, to sprinkle holy
water more frequently, to pray in church more diligently, and to dis-
play just a little more genuine devotion, he immediately comes under
the suspicion of witchcraft. It is as if those people who wish to be
more pious then others have succumbed to the crime, or, as others
say, as if the devil does not let them rest otherwise. So it has hap-
pened that in a region near us ruled by an excellent and praiseworthy
prince, everyone protects himself as diligently as possible against dis-
playing any sign of piety. Even priests who used to celebrate mass
daily have now either ceased completely or say it only in private with
the church locked up, lest people begin to spread rumors of magic.
So when we proceed recklessly under the appearance of justice, we
prepare the way for impiety and atheism. With good reason we rec-
ommend singular vigilance to our rulers in order to check their spread.
reason iv. Usually trials are conducted against women, but what
kind of women? Often delirious, insane, fickle, babbling, changeable,
cunning, lying, perjurous ones, and indeed if they really are guilty,
ones trained by their master to commit any crime. Unless you wish
Hellyer text 4/14/03 12:52 PM Page 25

question viii 25

to create thousands of disorders and errors, particular attention is

necessary when examining, hearing, and judging them. A very fa-
mous lawyer recently told me that every day he is presented with so
many difficulties from this one source alone that if he could ever
extract his foot from this nonsense he would never put it back in there
again. Furthermore, he would never advise any prince to embark
lightly upon such a completely entangled business.
reason v. I hear that in some places the salary of the lawyers or
inquisitors whom the princes usually put in charge of the business of
witches is set according to the number of convictions they secure;
for example, four or five thalers per head. Who cannot see for this
reason alone how great a need there is for vigilance lest the desire
for profit corrupt the process? For someone can more easily be
regarded as guilty when a larger number of convictions benefits the
purse more than a smaller number. Clearly the matter is difficult—
and dangerous! For we are not all saints, nor of such unshakable in-
tentions that some desire for gain cannot weaken us, and if not drag
us in the wrong direction, then at least prod us that way.*
reason vi. Nothing ought to incite the prince’s diligence in
properly supervising these trials more than the fact that once they
begin to go wrong, then it is very difficult to correct them. Some
means is almost always available to correct any other mistake in the
world, but not this one. I will prove it this way: in other cases, peo-
ple are almost always found who, without staining their own repu-
tations, can and will admonish circumspectly and usefully those who
have erred. But in this particular case, as I see it, this way to admon-
ish will always be completely precluded. For no matter who he may
be who warns of a mistake, however cautiously and discretely he
does it, either verbally or in writing, he knows that some stain will
stick to him. People will think that he had already begun to fear
either for himself or for his wife, children, or other relatives, or that
he wanted to avenge the ashes of one of his family. He will hear these
spiteful words: this grants liberty to the most atrocious crimes; this accuses
many great princes; this condemns and defames the public courts as unjust.

* In the territories of the archbishop-elector of Cologne, for example, witch-

hunting commissioners were paid one thaler for each arrest, one for each decree
of torture, another two on the day of torture, and two for each death sentence.
They also had their food, drink, and horse feed paid for. Rainer Decker, “Die
Hexenverfolgungen im Herzogtum Westfalen,” Westfälische Zeitschrift 131/32
(1981–82): 349–50.
Hellyer text 4/14/03 12:52 PM Page 26

26 cautio criminalis
He will also incur the indignation of great magnates, whose cronies
will tell them everything in twisted form. Who is so virtuous or so
unconcerned for his own reputation and honor and that of his fam-
ily that he would bring this stain and risk of causing offense upon
himself by standing up for the truth? Thus, once a trial begins to be
conducted unjustly, any chance for admonition and correction will
vanish. Therefore all the greater care must be taken so that it is not
conducted unfairly.
reason vii. Every day new difficulties appear in this matter, and
opinions about it are divided not only among learned men but
also among pious and conscientious men. It was once thought that
Delrio and Binsfeld* had said enough, but now there are men who
are examining certain details more thoroughly. They think that too
much trust is placed in stories and false confessions extracted by tor-
ture. They seek less severe outcomes. They deny judges such great
freedom in their rulings. They are skeptical about witches’ dances or
sabbaths, or at least, along with Tanner, they consider them to be
very rare, since it is more credible that most witches have been
deceived by phantasms. They reduce the credibility of denuncia-
tions and similar evidence, on which Delrio and Binsfeld placed too
much weight without solid reasons. Finally, every day new books are
published which render the matter more ambiguous.† Who can
deny therefore that there is greater need for circumspection and
solicitude here than in other, more transparent cases?
you will say, whoever decides to follow an approved author
really has no need to be so anxious and concerned. For theologians
teach that when two opinions are both probable, either can be held
in good conscience, even if one abandons the safer one.‡ However,

* Peter Binsfeld (1545/46–1598), suffragan bishop of Trier, was a fanatical witch-

hunter and the main force behind major hunts in that bishopric in the 1580s and
1590s. Spee devotes much of his attention in the Cautio Criminalis to refuting
Binsfeld’s Tractatus de Confessionibus.
† There was a healthy market in Germany for books on various issues relating to
witches and witch trials. For example, in 1629 Constantus Munich, a printer in
Cologne, published a collection of excerpts from several works discussing witches
called Diverse Treatises on the Power of the Church to Restrain Demons in Regards to the
Possessed and Bewitched . . . The Means of Trying Excepted Crimes, especially Witches
and Sorcerers . . .
‡ This is a succinct statement of the principle of probabilism, one of the keystones
and distinguishing characteristics of Jesuit moral theology.
Hellyer text 4/14/03 12:52 PM Page 27

question viii 27

they call that opinion probable and safe which is supported either
by weighty authority or by considerable weight of reason. Weighty
authority must be considered here to be one that is supported by at
least one learned and virtuous man, as the casuists teach. See Lay-
mann, book 1, treatise 1, chapter 5, § 2, number 6, etc.*
i answer i. Authority alone does not render an opinion very
probable or safe, unless its authors have embraced it only after con-
sidering the evident weight of the arguments that can be deployed
against it. But even if it can be generally assumed, as the less edu-
cated in particular do, that its authors have done this, as Laymann
said in the passage cited above, nevertheless if later authors oppose
that opinion and pledge to deliver new arguments that the original
authors have not yet refuted, I say that the learned are at least
obliged to examine them and diligently weigh them to see whether
they perhaps possess some certainty, or whether, on the other hand,
they at least weaken the probability of the opposing opinion. So
judges cannot blithely proceed without also listening to those people who
have written more recently, and moreover, without paying attention when
examining these cases. Note this.
i answer ii. Even if it is commonly true, when either of two
opinions is probable, that it is permitted to follow either one of
them, even the less certain one, nevertheless the theologians ex-
pressly make an exception (and I am amazed that they who claim to
know something about this pay no notice to them) and say that one
must always follow the more certain opinion, and consequently it
must be diligently established, when there is any danger of harm or
injustice happening to one’s neighbor. Consequently in our matter,
when this danger arises, the judges must follow the more certain
opinion and apply sensible care and effort so that they do not rashly
arrest someone but rather weigh these cases most cautiously. Finally,
from all these points what I intended to prove remains, namely that
we should bring singular and extraordinary care to these dangerous
witch trials so that our rashness does not lead us into traps. I assert

* The Jesuit Paul Laymann (1574–1635) taught canon law and moral theology at
the Jesuit college in Munich and at the universities of Ingolstadt and Dillingen.
His textbook of moral theology, Theologia Moralis (Munich, 1625), was widely
read. Influenced by Adam Tanner, Laymann added a section to the third edition
of Theologia Moralis, published in 1630, which urged greater caution in witch
trials, although it is doubtful that Spee had seen the third edition when he wrote
the Cautio Criminalis.
Hellyer text 4/14/03 12:52 PM Page 28

28 cautio criminalis
this so strongly because some inquisitors are convinced that they can
hardly err, since they think that their prisoners can easily trick all the
priests and deceive them with their satanic hypocrisy but not them-
selves and other lay judges. What precautions could be great enough
to overcome such a dangerous lack of concern? For someone who
takes no care at all is never careful enough.
Question IX. Whether princes relieve their consciences suffi-
ciently if they show too little concern and assign all responsibility to
their officials?
i ask this question because I recently heard that a prince who
vigorously urged on witch trials, having been warned how great a
need there is for care in the matter, lightly responded that he him-
self was not worried, since the officials whom he had appointed
watched over it.
i reply that a prince who allows his officials to act arbitrarily by
refusing to concern himself with this matter is not excused. He is
himself obliged to apply his diligence and supervision to it and to
pray often to God that he may be strengthened with his supreme
spirit. These are the reasons:
reason i. The prince cannot always be sure of his men’s expe-
rience and honesty. Many are often inexperienced, impetuous, and
malicious. When they perceive that their prince zealously opposes
this crime, there is nothing of less importance in their desire to
please him than humane and Christian behavior toward the accused.
Therefore it is the duty of the prince to take some part of the admin-
istration upon himself, lest he support himself entirely on the shoul-
ders of others.
reason ii. In matters of their household, falconry, hunting, etc.,
princes do not completely cast aside the task of supervision but want
to participate with great attention. Nor do they think that it is at all
detrimental to their majesty if they lower their thoughts from other,
more weighty matters of state to these more humble ones. It follows
from this that princes who are energetic and careful in minor mat-
ters, but negligent and careless in greater matters concerning human
blood, will not sufficiently justify themselves before God’s judgment.
reason iii. God, from whom all legitimate power comes, gen-
erally endows princes with singular prudence and mercy beyond
other men’s, so somehow when they devote their personal attention
to any business whatsoever everything turns out happily and cor-
Hellyer text 4/14/03 12:52 PM Page 29

question ix 29

rectly. Therefore if they remove their singular prudence from such

difficult matters without good reason, they should take care lest they
establish that they are unworthy of God’s further gifts and do little
to fulfill the duty they bear of administering justice.
reason iv. But princes are usually of a very benign nature, fully
inclined toward every mercy and Christian humanity. Therefore, if
they themselves occasionally learned more about the suffering of the
prisoners, if they heard their groans and sighs, they would want to
be informed with their very own eyes and ears about the trials their
officials conduct, rather than through others’. There is no doubt that
trials would then be conducted in another way, and so many capital
sentences would not come so easily and cheaply. Any of their offi-
cials can be savage and cruel, but princes cannot be. Their office is
always to abound in kindness and clemency and never to be cruel.
Therefore if they should ever observe with their own eyes the sav-
agery of the tortures that now flourish everywhere, or learn of it
through a truthful account, Germany would doubtless count fewer
witches [NB in margin], to whom the harshness of current torture
will never put an end. Even if we owe this misfortune chiefly to our
own sins, nevertheless the princes also sin, since they completely
deprive us of the singular compassion with which nature endows
them for encouraging us and appreciating our miseries a little more
personally and truly. I am accustomed to say that among all the pris-
oners’ pains and miseries, the greatest is that they are denied the
countenance of their princes forever, since they have been thrown
into a corner where no ray from their prince will ever shine upon
them, except through the eyes of another, as if through imperfect
glass which yields light and objects of its own color. There has only
been one prince of the world, the king of kings, who did not despise
those bound in beggary and chains but illuminated us who were sit-
ting in darkness and the shadow of death. With his heart opened in
mercy, he took pity on our infirmities, so that we might have an advo-
cate before Our Father, who has himself been tested in all ways.*
reason v. When officials perceive that their prince has averted
his eyes from them and does not care what happens, they inevitably
become bolder and less attentive. It is human nature that whatever

* 1 John 2:1: “My little children, I am writing this to you so that you many not sin;
but if any one does sin, we have an advocate with the Father, Jesus Christ the
righteous . . .”
Hellyer text 4/14/03 12:52 PM Page 30

30 cautio criminalis
is remote from the superior’s gaze is done negligently. The prince
cannot ignore this. Therefore he sins if he distances himself from
any concern and supervision, if he does not himself periodically
examine his officials’ deeds and trials in this great matter, if he does
not admonish them, if he does not press them, and if he does not
specifically instruct them to ensure that no harm occurs to anyone
in any way. He is completely obligated to sharpen his servants’ dili-
gence and remove any chance that some calamity befall innocent
people. Therefore let him investigate in detail:
1. Whether and how often the prisons are visited?
2. If they are more squalid than is necessary for the sake of security?
3. Whether some prisoners lie for years in heat and cold without being
examined in order to obtain an end either to their chains or to their life?
4. What is the method and means of torture?
5. What is the method of interrogation?
6. Whether the priests employed have self-control and experience?
7. Whether every prisoner has an unprejudiced defense?
8. Whether the populace has complaints about the commissioners or
inquisitors?
9. Whether these men are greedy or brutal?
10. Whether among all of these men there is a single one who spoke for
the accused before he was convicted rather than against him?
11. Whether there is anyone who has ever given any sign that he
prefers that the accused be found innocent rather than guilty?
12. Similarly, anyone who is not angry but rejoices when the accused
has been found to be innocent?
13. He should also investigate whether any of the accused have died in
prison and what happened to them.
14. And if he was buried under the gallows, which arguments showed
that he departed life through an evil death? and so on.
15. He should also seek the opinions of various people, namely what
they think about both sides of the various questions that are usually posed
in the matter of witch trials.
16. He should not be so firmly attached to one side that he cannot also
weigh the reasons for the other.
17. Every person should have the opportunity to speak freely what he
thinks.
18. He should inspect the so-called transcripts from time to time, or
have them read to him.
19. He should raise doubts, or ensure that they are raised.
Hellyer text 4/14/03 12:53 PM Page 31

question ix 31

20. He should not immediately believe everything he is told.

21. He should ensure that matters are examined by those who are of
the contrary opinion, rather than by those who are of the same, so that the
truth might reveal itself more clearly.
22. Nothing should seem at first sight so absurd that he should not sub-
ject it to examination.
What is more paradoxical today than to think that the number
of witches is tiny? Nevertheless if a prince had the patience to listen
and the desire to learn [NB in margin], it could perhaps be demon-
strated before his very eyes. Not everything is gold which is thought
to be, nor everything false which is contrary to general belief. Many
arcane things lurk out of sight which should only be whispered by
the highest authorities out of hearing of the common people. Noth-
ing is more harmful to the truth than a preconceived belief. Let us
grant this: one should not display out in the open things which the
common people cannot comprehend.
reason vi.Those who are regarded as extremely zealous in witch
trials, and because of this reputation are held by the ignorant to be
oracles, themselves seem to hold as certain that good princes fre-
quently concern themselves with these trials. Thus recently one man
somewhat cleverer—God save us!—than the rest thought that he
would thoroughly refute Tanner or some other regular clergyman*
when he said: “So many virtuous and excellent German princes vig-
orously raise arms and fire against witches. Who then could think,
along with Tanner or any similar theologian in opposition to the
princes, that God would ever allow punishment to be inflicted upon
innocent people?” This argument fails to be convincing when one
raises the objection that the princes themselves do not really apply
their minds to these cases, nor take upon themselves the task of learn-
ing about their officials’ excesses firsthand. For I should say that Tan-
ner and those men of good and Christian conscience who follow him
have learned much in the prisons, courts, and transcripts and have
written with careful consideration many things that have not passed
either the eyes or the ears of the princes mentioned, except at some
distance. Moreover these things have been altered in as many dif-
ferent ways as there are people who display them to the princes in
whichever way they want, as if in a fog. Therefore, so that the zeal-

* By regular clergy Spee means members of religious orders such as Jesuits, Do-
minicans, and Franciscans.
Hellyer text 4/14/03 12:53 PM Page 32

32 cautio criminalis
ous officials’ argument may hold, they of course suppose that the
princes’ experience in witch trials is no less than their priests’, who
at least do not learn everything through the senses of others. How
often in other matters does God permit princes who are themselves
good to order many things be done which are nevertheless badly
administered because they are conducted entirely by others? There-
fore, why would he not allow it to happen in these trials also? This
argument is therefore frivolous, or it presupposes the point I wanted
to show.
reason vii. The officials themselves presuppose that their
princes take these trials upon themselves and their consciences as
much as possible. Because of this it is well known that when clergy-
men occasionally urge the officials to act cautiously, they throw
everything back upon the princes themselves because they had been
encouraged by the princes in the first place. Thus one recently told
me, “I know that innocent people die in our trials, but I do not have
any scruples myself. We have a very conscientious prince who is
constantly encouraging us. He certainly must know and weigh up in
his conscience what he is commanding. Let him look to that; my
task is simply to obey.” Another flung similar excuses back at me
some time earlier when I warned him. Both were commissioned by
that same prince whom I mentioned at the beginning of this Ques-
tion, one who has abandoned all responsibility himself and entrusted
it to his men.
What a pleasant matter! The prince frees himself of any concern
and attention and tosses it all on the consciences of his officials; the
officials also free themselves of any concern and toss it all on the
conscience of the prince. A on B and B on A. The prince says his
officials will look after it; the officials say the prince will look after it.
Isn’t this a circle? But which of them will answer for it before God?
For when both look after it, no one does. I can hardly say how it
pains my heart that I am not permitted to say this and advise this best
and most pious prince, for whom I would not hesitate to give my
own life.
reason viii. The state of affairs at this time is such that the
princes cannot learn the truth about their officials’ trials or their lack
of care, either from the officials themselves and those they employ,
whether laymen or priests, or from other people, except through
their own efforts or through secret officials whom they themselves
directly commission.
Hellyer text 4/14/03 12:53 PM Page 33

question ix 33

The princes cannot learn anything from the officials themselves

and their assistants, for they act in their own interests to ensure that
they do not betray themselves. They will simply resist anything that
limits their profit, however politely it is done, particularly since in
many places not only officials but also confessors receive a per capita
commission for every conviction. In a tempting invitation to collu-
sion, these priests feast and drink together with the inquisitors on
the blood of paupers, which they suck out to the very last drop.
Nor will the princes learn anything from other people, because
they do not want to get mixed up in this business. Even if they are
moved by charity and want to speak up, they cannot be heard any-
way, or if even a single word can be heard, they thereby render them-
selves suspect of wanting to block the path of justice or of wanting
to patronize crime. According to this feeble argument, they them-
selves become guilty of the same crime, as I suggested above. Lest
the reader think that I am exaggerating and am spitefully repeating
myself, he may listen to the inquisitor appointed by a great prince,
or rather two inquisitors, who recently, when they had read the eru-
dite and prudent commentary of the most praiseworthy theologian
Tanner of the Society of Jesus, dared to say that they would not hes-
itate to throw him on the rack if they got their hands on him.* Evi-
dently because he warned as prudently and soundly as possible that
the business of witch trials should be conducted with caution and that
the judges would easily make mistakes if they were granted too free
a hand, and other similar things, those fools believed they had suffi-
cient evidence to torture a great theologian. I think that the most
serene blood of the German princes would boil if they listened to the
words of this kind of official with even half an ear. Let the prince, if
one is reading this, or the princes’ counselors, now consider the kind
of moderation and experience with which those men, who dare to
attack such a great man, not to mention his order, arm their justice
for common souls, paupers, and women. Yet Germany endures sec-
ular inquisitors, commissioners, and laymen of this sort, while the

* The superior of Jesuit house in Lippstadt, Johannes Quinken, reported to the

Jesuit provincial that the elector of Cologne’s witch commissioners had decided
not to allow any more Jesuits to minister to accused witches because they sus-
pected the Jesuits themselves of witchcraft. One commissioner even said he would
prosecute Tanner. See Gerhard Schormann, Der Krieg gegen die Hexen: Das Aus-
rottungsprogramm des Kurfürsten von Köln (Göttingen: Vandenhoeck & Ruprecht,
1991), 132.
Hellyer text 4/14/03 12:53 PM Page 34

34 cautio criminalis
princes entrust the entire matter to the consciences of such men.
These men are very learned jurists who ostentatiously relate to their
princes with lots of hot air how many great deeds they are waging in
their expeditions, how far the pestilence of witchcraft has spread,
how innumerable—God save us!—the witches are. Not only do we
know that such men speak badly of Tanner, but I also know other
pious and religious men who, when they moderately and soundly
warned similar inquisitors that they were falling down in their duty
through their negligence and inexperience and revealed many of
their consequent mistakes, accomplished nothing else than to suffer
the same calumny of witchcraft from their malevolent tongues. So
whoever would address even a word by pen or tongue to this matter
has considered things very badly. I grieve in turn for those princes
who possess a peaceful conscience when it is in fact completely jeop-
ardized by removing from their own confessors the freedom and duty
to warn them. Three times recently I grasped my pen to instruct one
of them in a letter, three times I put it back down, for what does it
concern me? But alas! so many others are silent whom it does con-
cern, and who could be profitably heard if only they could speak. In
this warning text I do nothing else, to summarize it, than urge cau-
tion, than rebuke the errors of some men, than show that the evi-
dence and proofs used everywhere have little weight. It is my goal to
help many innocent people; my method is to be no harsher than the
matter requires and is befitting a pious man. I censure only evil men
and then only in general; I do not touch upon good men, nor do I
speak about them. Therefore there is nothing bad here that could
displease good men and lovers of justice. But those who love justice
and turn toward reason and prudence will instead rejoice that the
path by which one can reach the summit of the truth opens farther
every day. Nevertheless I do not doubt that if this book fell into the
hands of the common people, there would be many superintendents
of capital crimes who would be offended and disapprove of it. Nev-
ertheless by this very response they would indicate quite clearly who
they really are and how much they love justice. But however this
may be, in the end this point remains: no one will dare to admonish
princes unless they themselves take this matter to heart, and there-
fore it is important for their conscience that they do take it to heart.
reason ix. The princes will sin gravely if they dare to decide
what should be done when their officials turn to them in difficult
cases unless they themselves regularly direct their attention toward
Hellyer text 4/14/03 12:53 PM Page 35

question ix 35

these trials and gain some experience in them. I will prove that they
will sin because they will necessarily make bad decisions; I will prove
it because they do not understand the propositions and statements
used in the trials; and I will prove it because new ways of speaking
have been invented by the judges which are not in the dictionaries
or Calepino* which we have used up until now but can only be
learned through experience, as I said. So they do not think that I am
inventing this, the princes should test whether today after so many
bonfires they know what even one of these inquisitors’ phrases means
when they say, for example:
1. Gaia’s defense has been heard; it is not adequate.
2. We have serious evidence against her.
3. We proceed according to what is alleged and proven.
4. Titia confessed without torture that she is guilty.
5. She freely ratified before the judge’s bench the confession she made
under torture.
6. Many repentant people have died steadfast in their accusation
against Gaia.
7. Titia has confessed to all the points and the details that her accom-
plices who denounced her deposed.
8. Sempronia used the sorcery of silence against torture.
9. She felt nothing under torture but laughed and slept.
10. The suspect was convicted to her face; nevertheless she remained
unrepentant.
11. She was found dead in her cell with her neck broken. The devil
strangled her.
And so on.
For I will boldly say that these phrases no more signify what
they sound like than that “horse” signifies “cow,” “camel” signifies
“donkey,” or “water” means “fire,” as the reader will learn from what
I will say below, when I explain those figures of speech in their
proper place.
Thus if the inquisitor asks the prince what he orders be done
with the priest Titius, for example, whether he who was not only
overwhelmed by strong evidence but also convicted to his face, yet
did not want to convert or repent, should be burned alive, how, I say,
can the prince reply without erring if he does not know what “strong

* A reference to a standard Latin dictionary written by Ambrogio Calepino in the

fifteenth century.
Hellyer text 4/14/03 12:53 PM Page 36

36 cautio criminalis
evidence” signifies, or “convicted to his face,” or “did not want to
repent,” or “wants to die impenitent”? But even if the prince con-
sults the doctors of theology and relies not on his own opinion but
on theirs, what then? He will err equally, and even more perni-
ciously. For where or in what books will they find those phrases
explained? Could they really imagine without convening a learned
council that the meaning of those words has changed? Therefore
it is necessary for the prince to learn these and similar figures of
speech. However, he will not learn them unless he instructs himself
through experience, and he will not learn them if he abandons all
responsibility to his officials.
Question X. Whether it is credible that God would ever permit
innocent people also to become entangled in these trials?
several people are of the opinion that, in a crime so atrocious,
God would never permit innocent people to be dragged into the
same heap with the guilty. Binsfeld says on page 354 that this is the
privilege of the friends and sons of God, which he argues this way:
I. Because the promises of divine law affirm it, as in the Psalms:
Since he has hoped in me, I will free him and protect him, since he recog-
nized my name [Ps. 90:14]. And again, They hope in you who know your
name, since you do not forsake those who seek you, Lord [Ps. 9:11]. And
again, The just shouted and the Lord heard them [Ps. 33:18]. Likewise,
Whoever hopes in the Lord will not be perplexed [Ps. 70:1]. And the sec-
ond letter of Peter, chapter 2, The Lord knows how to save the pious
from temptation [2 Pet. 2:9]. And Paul, God is faithful, and he will not
allow you to be tempted beyond what you can endure, but will give you suc-
cess along with temptation [1 Cor. 10:13].
II. Because there is no lack of examples of this. Binsfeld men-
tions to this end three cases: Susanna,* St. Athanasius,† and Bishop
Sylvanus.‡

* See Question 3.
† Athanasius (c. 297–373), bishop of Alexandria, was one of the most important
Church fathers. He spent much of his life fighting the Arian heresy. His involve-
ment in these often political struggles led to false charges, show trials, and physi-
cal violence being used against him. After many years in exile in the desert, how-
ever, he was able to return to his see and lead the Church’s eventual triumph over
Arianism.
‡ There were several bishops in the early Church named Sylvanus who, unfortu-
nately for Binsfeld’s case, were martyred.
Hellyer text 4/14/03 12:53 PM Page 37

question x 37

III. Because he adds the very strong testimony of St. Cyprian,*

which our sorcerers and witches confirm in their confessions. For
this saint, he says, when he was still a magician in Antioch, was in-
flamed with love for the Christian maiden Justina and tried to win
her acquiescence to his lust through incantations and spells. He con-
sulted the devil on how he could pursue the matter, but the devil said
that none of his arts could succeed against those who truly cherished
Christ. So writes Binsfeld, whom Delrio follows for the reasons cited,
as do many other zealous men at this time.
i answer, this notwithstanding, the opinion that God would
not allow innocent people to die along with the guilty cannot be
granted at all, especially since it gives judges a window for laziness,
since they would therefore not need to be very careful and diligent.
Further, it loosens the conscience of the princes so that they do not
really care about the kind of judges they appoint to conduct such
matters, or how good and experienced they are. And finally, it aban-
dons the truth. These are the reasons.
reason i. Why, I implore you, would God not permit in our
times what he has in the past? Why have not just many but virtually
innumerable Christian martyrs been subjected to unspeakable tor-
tures, and for that very crime of magic that we are dealing with here
[NB in margin], particularly since they floated, as in the life of SS.
Cosmas and Damian and others.† Where was this axiom hiding
then, that God would not allow such a terrible storm to rage against
innocent people? Where were Binsfeld’s promises of divine law
which I just cited? Where were the examples that he offered, in par-
ticular the very strong testimony of Cyprian, as he called it? Were
they all not innocent? Did they not truly cherish God? Did they not
invoke his name? Had they not placed all their hope and trust in
him?
reason ii. God allows much worse things to happen, for exam-

* Born a pagan in Carthage in the early third century, Cyprian lived a dissolute life
until converting to Christianity, eventually becoming bishop of Carthage in 249.
He was martyred in 258.
† Cosmas and Damian, doctors born in Arabia in the late third century, were early
Christian martyrs who according to legend withstood hideous tortures before
being beheaded. At one point they were bound in chains and thrown into the sea,
but the angel of the Lord broke their chains and returned them to shore safe and
sound. Les petits bollandistes vies des saints (Paris, 1888), vol. 11, 27 September. They
are the patron saints of doctors.
Hellyer text 4/14/03 12:53 PM Page 38

38 cautio criminalis
ple that sacred hosts be trampled on and treated in other filthy ways,
that his only son be crucified with thieves, and other similar things.
Why then would he not allow much more trivial things to happen?
I will conclude with Tanner’s words concerning this argument: Evi-
dently God permits these and many other enormous crimes for the most
worthy reasons, but only in witch trials does he promise as if with a sealed
testament not to allow any harm to befall innocent people.
Therefore it is ridiculous and amazing that wise men could even
have said it.
Binsfeld’s arguments given above have now been answered. For
I. They prove too much and therefore nothing at all. It is clear
that they prove too much because they conclude that God would not
allow so many martyrs to die. Why do we need these arguments
when we know that the complete opposite is the case?
II. If one may argue this way: God did not allow those three in-
nocents, Susanna, Athanasius, and Sylvanus, to die, therefore God
will not allow any innocents to die in the future, then I may also
argue this way: God also allowed three, and certainly many more,
innocent martyrs accused of magic to die, therefore God will allow
innocents to die in the future.
III. As for the testimony of St. Cyprian, if the devil said that his
arts, that is, incantations and poisons, could not succeed against those
who truly loved Christ, why do Binsfeld and others shout so loudly
that witches are severely infecting the state with their poisons? Let
us all truly love Christ and their arts will have no success against us.
Then, however, the arguments Binsfeld offers speak above all about
the permission by which God allows innocents to die because the
devil creates an image of them at witches’ sabbaths. Even if we should
grant (about which I will speak more fully in Question 47) that God
would not allow innocents to die through this kind of satanic art,
nevertheless it does not follow that he would not allow them to die
through human arts, that is, through judges’ careless handling of
trials. That is enough here.
Question XI. Whether it is credible that he has actually permitted
innocent people to become entangled as well?
binsfeld and Delrio seem to think it is not credible. But
i answer, we have no doubt that many innocent women have in
fact been entangled in the same punishment as others. These are the
reasons:
Hellyer text 4/14/03 12:53 PM Page 39

question xi 39

reason i. Tanner testifies that many learned and prudent men,

even professors of theology, several of whom have dealt with these
witch trials in the court of conscience for some time,* have professed
their fear that many innocent people may also be harmed by this
confused way of conducting trials. That is certainly a great prec-
edent for our argument.
reason ii. Likewise, I know learned and pious men who, hav-
ing dealt with these cases for some time, state that they not only fear
that it has happened but hardly doubt that it has. I knew a prince
who, after he had prosecuted witches for some time, for some rea-
son asked the priest who ministered to their consciences and led
them out to be burned whether he seriously thought that some truly
innocent ones had been executed along with the others. The priest
shrugged his shoulders and answered sincerely that he did not doubt
it at all, and indeed, by the salvation of his soul, he could not state
otherwise. The prince took this statement to heart and immediately
stopped the trials and forbade his officials to continue this business.
reason iii. If the reader allows me to say something here, I con-
fess that I myself have accompanied several women to their deaths
in various places over the preceding years whose innocence even
now I am so sure of that there could never be any effort and dili-
gence too great that I would not undertake it in order to reveal this
truth.
Curiosity stimulated me (for why should I deny it?) and almost
carried me beyond my goal of learning something certain in such
an uncertain matter. Nevertheless, I did not ever perceive anything
other than innocence everywhere, which I had to accept as proven
by arguments that were neither few nor feeble. Since (for manifest
reasons) I was not permitted to intercede before the court, one can
easily guess what feelings were in my soul when I was present at such
miserable deaths. I am human and I can err; I will never deny it.
However, after I had dealt for so long and so often with prisoners,
both inside and outside the sacrament of confession, considered
their souls from all angles with all my ability, examined virtually all
points, used human and divine help and advice, looked through the

* I.e., administering the sacrament of confession to accused and condemned

witches, as Spee himself had done. Throughout the Cautio Criminalis Spee makes
a distinction between the court of conscience, namely the sacrament of confes-
sion, and the external court, the judicial court in which the judge presided.
Hellyer text 4/14/03 12:53 PM Page 40

40 cautio criminalis
evidence and the records, discussed with the judges themselves, in-
sofar as the confidentiality of the confessional could be maintained,
carefully weighed everything, and disputed particular arguments in
my mind, I could not conclude anything other than that those who
were thought to be guilty were in fact free from any guilt. I do not
think that I speak lightly when I say that it is only with great diffi-
culty that I can believe I am wrong about this.
reason iv. The men put in charge of witch trials are often im-
prudent and malignant, the torture frequently excessive and cruel,
much evidence worthless and dangerous, and their method of con-
ducting trials often contrary to both law and reason, which I will
warn of below in the proper place. Naturally then it would be aston-
ishing if justice nevertheless always held to the right course and did
not sometimes dash itself against cliffs.
reason v. Tanner recounts that in previous years two justices
who conducted witch trials in Germany were condemned to death
by the law faculty at the University of Ingolstadt and were executed
for using illegal procedures that endangered innocent people. I
myself know a prince who had some of his men beheaded for the
same reason. Who can doubt that under these judges many innocent
people blew away in ashes?*
reason vi. Indeed, how many innocent people do we think
have died so far under other judges who at first employed the harsh-
est measures against this crime but then confessed that they were
themselves sorcerers and were burned? Recently two or three were
condemned whose names I shall omit lest I disturb their souls. Ger-
many sees these examples, and what can be said against them? Who
can free us of the valid fear that tomorrow or at some later time
there will be more of them? Clearly there can be no doubt that the
devil eagerly wishes for and strives toward that, since when he finds
even one such inquisitor he has an open door for greatly enlarging
his kingdom, while obtaining safety for real witches and destruction

* One was Balthasar Ross, who was executed in Fulda in 1618 after being held in
prison for over a decade for his excesses as an inquisitor. Spee was completing his
novitiate in Fulda while Ross was imprisoned there and may have heard of this
case directly. The other was Gottfried Sattler of Wemding in Bavaria, who was
executed in 1613 for the use of arbitrary arrest and torture in order to enrich him-
self. Behringer, Witchcraft Persecutions in Bavaria, 293–95, argues that this was a
critical victory for the opponents of trials, for it showed that innocent people had
in fact been executed.
Hellyer text 4/14/03 12:53 PM Page 41

question xi 41

for innocent people. But if the number of witches is so infinite, as

Binsfeld and Delrio claim, then it would be quite astonishing if all
their own efforts along with the devil’s could not manage to sneak
more of them into the ranks of judges and inquisitors. Why should
God not allow what has already happened at other times, as I have
said, to occur more often?
Princes should pay attention and examine the lives of their offi-
cials. Although I do not want any good person to be defamed, I
worry when some of them are not reproached for their morals. For
if what I am told is true, some of them are hardly ever seen in
church, or rarely, and then they are always joking around, laughing,
or gossiping, and if they see any of the female sex intently praying,
they immediately ask whether anything suspicious has been heard
about them. They are bold, arrogant, greedy, ignorant, and cruel
men. Recently when I heard such epithets about one of them, I re-
mained silent, shaking my head, for I did not want to agree, lest I
should seem to approve of or delight in the charges. I have since
learned that they were true, and many more things could even be
added to them.
reason vii. A trustworthy man recently told me about an exe-
cutioner who was himself executed. Among his serious crimes was
this one: since he was skilled in magic, through his art he forced
whomever he got in his hands to confess to whatever he asked. So he
compelled many innocent people to proclaim things that perhaps
they themselves would never have thought of.
Could I offer anything clearer about this question? What some
people hold along with Delrio is of course an oracle, namely if God
disapproves when any innocent people are accused and arrested,
then their innocence will immediately become apparent. That is to
say, “immediately” after they have long since been turned into ashes.
reason viii. From the things that I have so far been able to
learn through my experience combined with my constant curiosity,
it is so clear to me that very many innocent people have inevitably
been entangled that if any German prince does not want to believe
it unless he can grasp it with his own hands [NB in margin], then, if
he dares to promise me safety from malevolent tongues, I will de-
liver the entire matter into his hands with a wonderful new discov-
ery until now hidden. For from the time that I first began to taste
learning, I have been just as eager to teach as learn. Once he has held
it, he will be struck mute and will feel a great pain in his conscience,
Hellyer text 4/14/03 12:53 PM Page 42

42 cautio criminalis
however quiet and tranquil it has been until now. I cannot make
everything public yet.
reason ix. Indeed Binsfeld and Delrio themselves convince us
that God has in fact allowed many innocents to die for this crime. I
will show it in this way. They rightly teach that the trial of witches
by water is completely illegal,* and if any judge proceeds in this way
he proceeds illegally and consequently the trial is void. Therefore it
clearly follows that if some women have been tried this way, then
they have died innocent, for a person must be considered innocent
as long as she is not legally proven to be guilty. These two authors
concede that many judges used this test in the past and still use it
now. Therefore they must also concede that in the past many inno-
cents have died and still die now. Therefore God has allowed and
does actually allow them to die.
reason x. Moreover, these same authors think that proof by
stigmata should likewise be rejected,† and moreover one should not
proceed to a condemnation on the basis of one or two denuncia-
tions, even if one may proceed to torture. The reason they give for
both statements is to prevent innocent people dying. I ask, however,
whether many judges have not actually issued condemnations on
such evidence? Do they not therefore think that God has actually
allowed many innocents to die? In this way, those good men refute
themselves.
Question XII. Whether inquisitions against witches should there-
fore cease if it is established that many innocent people have actu-
ally been entangled in them?
the example of the prince who thought so has already been
provided above and indeed he acted quite rightly. Nevertheless, in
order for the zealous reader to accept this more willingly, we shall
for his sake make use of a certain distinction: a twofold method of
conducting trials or two kinds of trials can be instituted.

* This refers to the classic test of popular stereotype: the suspected witch’s hands
and feet are bound and she is tossed into the water. If she floats, she is “vehemently
suspected of witchcraft.” If she sinks, she is innocent. Binsfeld wrote that at the
time it was still in common usage even though anyone who employs the water test
sins mortally.
† Witch-hunters claimed that witches could be identified by certain marks or stig-
mata that the devil placed on his servants. Spee refutes such claims in detail in
Question 43.
Hellyer text 4/14/03 12:53 PM Page 43

question xii 43

I. Cautiously and circumspectly according to the prescriptions

of the law and prudent reason, so that if they are upheld, there will
be no danger that innocent people will be affected.
II. Thoughtlessly and lazily, or maliciously, so that if such trials
are carried out the innocent will also be put in moral danger.* I will
discuss both kinds of trial with a twofold answer.
i answer i. There is no need to end trials if the first kind is con-
ducted with a minimum of danger and no danger from elsewhere
can be foreseen.
the reason is, because nothing stands in the way of freeing the
state from this terrible plague with this method, if it has been estab-
lished that it is infected.
i answer ii. Trials of the second kind must be stopped and com-
pletely abandoned, not only in the crime of witchcraft but also in all
other crimes, whether excepted or not. Here are the reasons.
reason i. Such a trial is always unjust and illegitimate. It is
proven this way: to lead someone into the danger of suffering grave
harm which he hardly deserves is contrary to justice.
reason ii. Whoever employs such a trial sins mortally. It is
proven this way: whoever knowingly exposes himself to the danger
of sinning mortally thereby sins mortally; but conducting such a trial
exposes one to the danger of sinning mortally, namely that of killing
an innocent person without just cause. Therefore, etc.
From this our response necessarily follows: one must abstain
from such unjust and illegitimate trials in all crimes, however horri-
ble or excepted.
you will say i. It is such a desirable good that the state be
freed from this horrible crime of witchcraft that it seems to be suf-
ficient and just cause for why we should not care if a few innocents
perish.
i answer: If they perish indirectly and through no fault of yours,
you incur no guilt—perhaps one should not worry about this or that
particular woman. But you do evil if you directly create danger for
them. For one must not do evil in order that good might result. Once
a few innocent women have been entangled, innumerable others will
soon follow, as I said above, and so the state will not cleanse itself of
evil people, as it intended, but rather of good ones. All the great dis-
asters that I touched upon above in Question 8, Reason 3, should be

* I.e., the danger of committing a sin.

Hellyer text 4/14/03 12:53 PM Page 44

44 cautio criminalis
carefully noted. Therefore, these great evils are not just cause for
endangering innocent people.
you will say ii. Therefore we ought to abstain from wars in
which a few innocent people often incur the same ruin as guilty ones.
i answer: It is not a valid comparison. For one happens in-
directly and without dishonor, because it occurs in war; the other
directly and with great dishonor, which is more painful than the
death criminals suffer, as you can read frequently among the theolo-
gians when they discuss homicide. This must be avoided in war too
as much as possible. The dishonor I mentioned clearly causes the
state more harm than any good that can be hoped for. In war only
life is lost, not honor; in this case, however, both are lost, and in a
singular manner, for the whole family is disgraced in perpetuity, even
the most noble, and the Catholic faith itself is disgraced, as I said
above. And where one or the other family is disgraced, it is inevitable
that an infinity of others will follow, as I have hinted at and will show
below, in Question 20, Reason 14. But even if this were not the case
and it were just the same as in war, nevertheless we have the explicit
resolution of Christ on this question in the parable of the weeds
(more on this below). This authority must suffice against any argu-
ment whatsoever. Therefore I pose this dilemma: either the argu-
ments that can be leveled against us have some force, or they do not.
If they do not, they are leveled in vain. If they do, why did Christ
ignore them and, in the parable I shall soon recount, decide in favor
of our opinion?
Question XIII. What if such danger threatens innocent people
through no fault of my own, whether we should also cease persecut-
ing the guilty?
in our crime there is hardly any opportunity for this to happen.
For if we conduct a trial so cautiously and carefully that there is
no danger, it does not seem that any danger from any other source
should be feared. Nevertheless, as this question is frequently asked,
I say that I think the trials should be stopped in this case also.
i answer: If any prince or ruler wants to cleanse the state and
investigate the evildoers in order to separate them from the living,
he should also take heed of the danger that innocent people may also
be killed. I say that even if the ruler is not the cause of such danger,
it seems that he should abstain from inquisitions and killing crimi-
nals anyway. These are the reasons that Tanner provides.
Hellyer text 4/14/03 12:53 PM Page 45

question xiii 45

reason i. This was the opinion of the great authority Abraham

long ago in the Old Testament, who, when he saw that God was
preparing a just death for the Sodomites, dared to ask for a pardon
for all so that he might avert ruin from the necks of the innocent:
Far be it from you to do this, he said, to kill the righteous man along with
the wicked and let the just man fare as the wicked. For this is not for you,
who judges the whole world. Do not carry out this judgment [Gen. 18:25].
So Abraham spoke.
reason ii. God himself followed this counsel and sealed it by
example when, having heard Abraham’s words, he immediately
granted a pardon to this populous and wretched city, should there be
a mere ten just men among such a huge number.
reason iii. In the New Testament, Christ our Lawgiver mani-
festly prescribes it in the parable of the weeds, Matthew 13. The ser-
vants said to the head of the household, Do you want us to go and gather
the weeds? He answered, NO, lest in gathering weeds by chance you should
pull out the wheat.* Note that he did not just say, Lest you should pull
out, but he also added the particle, Lest by chance you should pull out,
so that he might show that he is teaching two things. Of course you
should abstain from extirpating weeds if at the same time you are
tearing out wheat, which those words lest you should pull out indicate.
But then you should also abstain if there is any danger at all of pulling
wheat out as well, which the added particle lest by chance [ forte] indi-
cates. Here he makes no distinction between whether this danger of
pulling out wheat occurs through any fault of the servants or not; but
rather he simply and absolutely says that one must abstain from pull-
ing them out because of this danger. This is what I intended to show.
you will say: All heretics can use this argument of the weeds
on their own behalf when the Inquisition is directed against them,
yet the Church proceeds against them nonetheless.
i answer: They use the argument invalidly. For this parable
does not teach that weeds are simply to be spared, but that they are
to be spared when there is any danger that wheat could be pulled out
at the same time. However, when the Inquisition extirpates heretics,
this danger is totally absent. For they are sufficiently well known and
distinguished from Catholics by the Church councils. Therefore

* Matthew 13:24–30. Since the days of the early Church the parable of the weeds
or tares had been the proof text permitting toleration of heretics. Tanner used the
parable of the weeds in his criticism of witch trials.
Hellyer text 4/14/03 12:53 PM Page 46

46 cautio criminalis
this parable is of no help to them. But if the Church should proceed
against them and they cannot be sufficiently distinguished, or ripped
out without endangering the wheat, then they must be spared ac-
cording to the prescriptions of the Gospel. This is how the doctors
of the Church explicate this parable: St. Augustine, Contra Epistolam
Parmeniani, book 3, chapter 2, and Contra Cresconium, book 2, chap-
ters 34 & 37, and Contra Literas Petiliani, book 3, chapters 2 & 3.
Likewise St. Thomas [Summa Theologiae] 2.2, q. 10, a. 8, ad 1, whom
all commentators follow without exception, so that among such a
great number of writers not a single one dissents. Not every offense
in the world can be done away with. Many things that cannot be
conveniently changed must be allowed. It is better to let thirty or
more guilty men go than to punish one innocent. Augustine says in
Contra Literas Petiliani, book 3, chapter 3, As long as one threshes the
wheat with the chaff, it is better to tolerate the mixture of good people with
evil until the time the wind separates them than to harm one’s love for good
people because of the evil ones. Thus one should rage against evildoers
and swing the sword so that it does not also fall upon the necks of
the innocent.
reason iv. It seems to be misdirected zeal when everywhere
completely illiterate people and laymen clamor that the crime of
magic is very secret and that the devil wickedly and cunningly de-
ceives even the most prudent men who have spent their whole lives
in spiritual warfare, yet they themselves impetuously rush to track
down these hidden things and wrestle with the most cunning enemy
of all. The Holy Scriptures offer nothing in the way of an example
or teaching that could endorse this. God commands that crimes be
punished if they are not completely secret; if the innocent can be adequately
distinguished from the guilty. Otherwise, as we have already said con-
cerning the weeds sprouting up amid the wheat, allow both to grow up
together until harvest time, then the angels will separate them and
throw them into the fiery furnace. We should allow them to distin-
guish the most secret crimes. But if we, or even unlearned laymen
ignorant in matters of spiritual wickedness, know how to distinguish
and remove such an innumerable multitude of criminals from the
harmless, why do we call this crime very secret? Many other crimes
are manifest—if the magistrates’ zeal comes from God, why do they
not prosecute those crimes first, and only then turn to the most
secret ones?
Thus even if there is no danger here, nevertheless the order is
Hellyer text 4/14/03 12:53 PM Page 47

question xiv 47

inverted, so that the things before everyone’s eyes are skipped over
in silence while completely obscure matters are investigated first.
It seems to me that those states act best which immediately
destroy the crime of magic when it by chance reveals itself [NB in
margin], but otherwise consider it to be far from the general welfare
to pry into these hidden matters in very dangerous ways. However,
lest those people who really want to prosecute witches immediately
throw this commentary away, I will teach them the best way to do it.
They should not be afraid to continue reading, for they will find
something that will not displease them.
Question XIV. Whether it is beneficial to incite princes and rulers
into an inquisition against witches?
i answer, I do not think it is useful unless they are also warned
about the difficulty of the matter, as I have been emphasizing so far,
just as it is not useful to lead someone to a slippery place without also
properly warning them to proceed cautiously.
I have heard several preachers marvelously recite this argument
with their exceptional eloquence and persuade the rulers that they
should devote all their severity to banishing this plague of witches
from the state. I have also heard others excite the princes’ rage in
private addresses; they do not cease to paint the hideousness of
this crime in their own colors, while, full of great zeal, they seem to
summon fire down from the heavens.
Now I do not completely condemn this, nor do I deny that the
witches’ great crime is to be detested or that the princes should take
arms against this great plague, and I pray for nothing more than that
the field of the Catholic Church be completely cleansed of all false
sprouts. But what I desire of these good and prudent men is that at
some time they try to observe dispassionately the method of inves-
tigating and trying this crime which imprudent judges often use. Let
them also consider how full this work is of perilous risks and how it
is not only a struggle against flesh and blood but also against the
prince of darkness himself. In short, when preachers speak heatedly
and zealously before the rulers about extirpating weeds, let them
always remember to add one thing and advise, or rather insist, that
the princes must use the greatest caution possible by which they
might accurately distinguish weeds from wheat and remove all dan-
ger from the necks of the innocent. They should recount and explain
the parable which we have told, for they should by no means ignore
Hellyer text 4/14/03 12:53 PM Page 48

48 cautio criminalis
it, lest Christ Our Lord have left it for us in vain. It will cause no evil,
nor will it repress justice more than it promotes it.
Let princes take note of this or, because they themselves will not
read this, then those who can advise them. But
you will say: It appears that I am striving to have the most
serious crimes in the state tolerated and justice impeded, so such a
great patron of criminals should not be listened to. I understand that
one of the people whom I am trying to warn recently spoke this way.
i answer: I do not know how to reveal what I may appear to be
striving for, nevertheless I will reveal that so far I have been striving
for what Christ’s parable of the weeds teaches, not according to my
own interpretation, but according to the common interpretation of the
theologians.
I am not obstructing justice, I am not hindering it, I do not want
crimes to go unpunished. I only want what Christ our Lawgiver sanc-
tified with his own mouth, namely that we not pull out weeds if there is any
danger thereby that wheat is perhaps ripped out too. I want this to be-
come known to those men who are girding themselves to cleanse the
field of the state. Can anyone take offense if I want them to be edu-
cated about the will of the highest Lawgiver? Or did our Savior say
something that must be repressed in silence, lest we appear to pro-
tect criminals and witches and impede the course of justice? On the
contrary, from this objection I can actually offer a stronger argu-
ment to prove what I was just saying, namely that the princes must
also be admonished with every means to be circumspect when they
are urged to investigate witches. For when they have such zealous
instigators around them who do not want to listen to me at all and
call me a patron of crime, which is a great calumny, when I do not
say anything other than what I found in the Gospel of Christ, one
can prudently fear that with their shrill fervor advisers of this kinds
will sometimes lead princes somewhat further than is right in such
an arduous business. Therefore it follows from this point that the
princes must be admonished to apply all the more diligence and
attention.
So the princes should consider who the men are who vehemently
urge them to raise arms against the crime of witchcraft. I said that
one must fear that their excessive zeal could drag the prince beyond
proper limits, but in addition to this they often mix other things in
with their zeal, such as greed or ignorance, etc. From such things the
prince must conclude that he should stand firm and wait rather than
Hellyer text 4/14/03 12:53 PM Page 49

question xv 49

follow those men who say he should hurry. I will repeat what I said,
if the princes are surrounded by men of vehement zeal and disor-
derly passions, it can prudently be feared, as usually happens, that
once they are ensnared by their passions, they do not watch out for
and avoid many things that will be perilous for innocent people once
the trials have begun, so that at the same time wheat will also be put
in jeopardy. So that this does not happen, princes should not be
warned to conduct trials as carefully as possible but rather not to con-
duct them at all, for all caution will be futile as long as the princes
have impetuous and ignorant advisers of this sort. For if they dare to
be unjust to me and slander me for adhering to the teaching of our Leg-
islator, how fair and moderate will they be with poor prisoners, whom
they can attack not only with impunity but under the beautiful pre-
text of justice. If they have so little foresight that they hurl against
me the very things that become my weapons against them, how can
they deliberate prudently and skillfully or make correct decisions in
these difficult witch trials, when even particularly intelligent men do
not consider themselves up to the task?
Question XV. Who in particular are the people who continually
incite the rulers against witches?
i answer, there are four types, whom I will arrange in order.
the first type are those theologians and prelates who, happy in
their own speculations and little museums, enjoy complete peace.
Experience has taught them nothing of events outside, of the squalor
of the dungeons, of the weight of the chains, of the instruments of
torture, of the lamentation of the poor. To visit the prisons, to speak
with beggars, to turn an ear to the complaints of the poor is beneath
their dignity and duty to study. What then can they understand about
such matters? And consequently, what can princes learn from them?
To them I add some saintly and religious men who are com-
pletely inexperienced in the affairs and wickedness of men. As they
are themselves simple and holy, they think all judges and inquisitors
in these matters are like them and consider it to be the greatest
crime if we do not revere all public courts as sacrosanct and inca-
pable of error.
So if they hear or read some old wives’ tales about witches, or
confessions extracted by torture, they immediately embrace them as
Gospel and swell up with more zeal than knowledge. They shout
that this evil cannot be tolerated, that everything is full of witches,
Hellyer text 4/14/03 12:53 PM Page 50

50 cautio criminalis
that this plague must be crushed with all means available, and many
similar things. Since their judgment is so innocent, they do not per-
ceive any danger. Oh holy and good men! What are we to do with
them, since they only want the best for the state? If they knew what
malevolence and imprudence constantly flourishes in these trials,
they would no doubt shout what Christ their teacher said: Allow both
to grow until the time of the harvest. Yet these virtuous and simple men
are not capable of learning this.
the second type consists of lawyers who campaign for witch
trials because they have gradually noticed that conducting trials is a
very lucrative office. Having suddenly become themselves the most
pious of men, they raise great doubts in the rulers’ mind if they do
not burn white hot against this crime. Nobody of course sees what
they are really aiming at.
the third group is the ignorant and usually jealous and mali-
cious common folk, who everywhere avenge their feuds through
defamation and can only exhaust their talkativeness through slander.
Who can we prudently and in good conscience believe unless pub-
lic opinion is first protected from the freedom to slander with the
most severe punishments? But I will talk about this below, in Ques-
tion 34. I will just briefly warn that today the character of the peo-
ple is such that if at their worthless shouting the authorities do not
immediately seize, torture, and burn, then the people freely clamor
so that the authorities fear for themselves, their wives, and their
friends: they have been corrupted by wealth, every respectable fam-
ily in the city obeys witchcraft, the witches can virtually be pointed
out with a finger, that is why they do not dare to conduct trials, and
many similar things that clearly show how great the people’s malice
is. So can one prudently listen to these people charging each other
with the crime of magic when they even defame the authorities
themselves without reason? If only I could not also name ecclesias-
tical and pious men, already discussed in the first group, who them-
selves encourage the people’s shouting against the authorities when
they should be restraining it.
the fourth group is commonly said to be those people who,
in order to remove any suspicion of the crime further from them-
selves, since they are themselves sorcerers, rage more than anyone
else against the rulers with a special and overly exuberant eagerness,
shouting that they are moving too slowly against the witches. For it
has already happened in many places that these exceptional instiga-
Hellyer text 4/14/03 12:53 PM Page 51

question xv 51

tors have themselves been denounced, arrested, tortured, have con-

fessed and been burned along with the other witches, emphatically
stating that with their insistent pressure they sought only to hide
their own crimes. Indeed, as a particular inquisitor was recently heard
to say, since he had seen so many cases of this kind, it was only pru-
dent to consider people suspect if he heard they were carried away
by an extraordinary zeal against this crime. Many others also say this
just like him. I do not dare to say it myself, but I will put this dilemma
to you. Many people such as I just noted, in fact virtually innumer-
able people, have been burned confessing to this. Therefore either
innocent people have confessed, denounced either out of hatred or
something else, or guilty people have confessed. If the former, behold
how beautifully we conduct trials, so that we do not look after the
innocent, and so many of them at that. Where do the learned men
who advise the princes keep their thoughts that they do not change
their ways? If the latter, then look how easy it is after so many exam-
ples to hold the worst suspicions about those who are most vehement
in their zeal against witchcraft. Therefore I am completely convinced
that the inquisitors I mentioned above who thought the theologian
Tanner should be tortured are without doubt themselves sorcerers
and belong to this fourth class. I have no lack of evidence for this
charge, but I will keep silent in order not to disturb the authorities
and meddle in matters that are outside my profession. Meanwhile,
the princes should pay attention to what they are doing, so that when
they are driven into these difficult matters under the pretense of jus-
tice, they should examine whether the spirits moving them are from
God. I certainly do not deny that weeds should be torn out (even if
some great men vainly seek to be zealous here without any real
knowledge), but only if they can be identified and distinguished without
endangering the innocent. The Gospel is in their hands; if the mag-
nates’ councilors do not read it, then perhaps out of curiosity they
will read what I have written here. Therefore let me repeat several
things again. This is Christ’s law, Matthew 13, if there is any danger
of ripping wheat out as well, do not pull out the weeds. This is either
Christ’s command or merely advice. If it is a command, whoever
transgresses against it will seriously atone for it, since this is an
extremely serious matter. If, however, it is advice, let every prince,
whoever he may be, beware lest he admit advisers into his presence
yet does not admit this one.
Now, so that I may finish up: it seems right to warn as my
Hellyer text 4/14/03 12:53 PM Page 52

52 cautio criminalis
conclusion that I myself have observed the following points, which
should be carefully noted. Many people who incite the Inquisition
so vehemently against sorcerers in their towns and villages are not at
all aware and do not notice or foresee that once they have begun to
clamor for torture, every person tortured must denounce several
more. The trials will continue, so eventually the denunciations will
inevitably reach them and their own families, since, as I warned
above, no end will be found until everyone has been burned. Only
then, when they see that they themselves have also been denounced
and arrested, do they open their eyes and lament, but in vain. The
more violently they seethed against witches, the more guilty they,
who wanted to cloak themselves with this violence, are now consid-
ered to be. Finally, oppressed by intolerable tortures, they themselves
are forced to confess. They go to the flames along with everyone else,
innocent just like many others, but nevertheless all gathered together
by God’s just and hidden judgment, because they, seduced by their
ungoverned passions, first unleashed their tongues outspokenly and
freely against the other people’s reputations and impulsively sought
to bring torture upon them. Let those who ignore this beware.
So today noble and great men who with more foresight have
begun to see with their eyes and notice such things here and there
do not dare to recommend these trials to their princes.
Certainly the Italians and Spaniards, who by nature seem to be
more prone to speculating and meditating on these matters and
clearly see how large a crowd of innocent people would also be car-
ried off if they copied the Germans, rightly abstain and entrust to
us alone the duty to burn—we who prefer to trust in our own zeal
rather than be satisfied with the teaching of Christ our Lawgiver.
Question XVI. How can care be taken in witch trials so that inno-
cent people are not put in danger?
i answer, whoever applies the following precautions will have
prepared wisely.
precaution i. The prince must ensure above all that the men
he appoints to conduct or judge witch trials are well suited for such
an important duty. They are suitable if they are especially learned,
prudent, virtuous, merciful, and gentle, which is to say that they do
not act foolishly, thoughtlessly, malevolently, cruelly, or impetu-
ously. This requires no explanation.
I am not accusing anyone here, but I can state that I am contin-
Hellyer text 4/14/03 12:53 PM Page 53

question xvi 53

ually amazed at how few of the consequences of these matters the

judges discern because of their inexperience, how often they think
that the most trivial arguments against the accused carry great
weight, and inversely how trivial they consider the weighty argu-
ments supporting the accused to be. Consequently when they are
gently and amicably prodded with the slightest bit of reason, they
become either silent or indignant and do not want to discuss and
examine the matter with an ounce of reason and learning.
However, when princes want to assign a theologian to their sec-
ular officials, I cannot approve of them sending some great scholar
or prelate noted for his authority and titles, especially if he also has
a reputation for impetuosity and arrogance.
the reason is I. As long as such people pressure others with
their authority, it easily happens that only what seems good to them
prevails, and no one else dares to oppose their arguments openly. II.
Often learning and judgment are not found in such men to the de-
gree that their titles and rank promise. III. Such men do not easily
couple with their rank the experience necessary for such cases: they
will not enter prisons, they will not listen paternally or comfort
those thrown into filth and foulness, nor will they lower themselves
to other similar things, but they will only hear the lamentations of
the miserable through others’ ears and believe according to their
own mood what others report has or has not been done, which
princes can do equally well. IV. This does nothing other than mul-
tiply the costs, which everyone already complains are too great—to
such an extent that people are already saying that the poor can now
hope to eventually have immunity from the inquisitions because
they are completely broke. V. If anyone of such authority is perhaps
somewhat impulsive, then it is three times more harmful than if the
same or even greater impulsiveness is combined with less authority
in another person.
precaution ii. More than anything else, the prince must en-
sure that his judges and inquisitors, according to the dictates not
only of the law but also of natural reason, incline more in favor of
the accused than against him, as long as the matter is not clearly
known for certain.
Incredibly, everywhere people constantly sin against this pre-
caution. I do not understand how the laws can be so devoid of jus-
tice now. For almost everybody rages against the arrested women, so
that whatever is said against them is valid and true, no matter who
Hellyer text 4/14/03 12:53 PM Page 54

54 cautio criminalis
attacks them. However, whenever something is in their favor, or
someone, no matter who he is, wants to provide arguments testify-
ing to their innocence, it is futile and pointless and he is completely
shouted down. It is as if anyone can be inculpated, but nobody ex-
culpated. These evil men act in such a way that by hook or by crook
they make whomever they seize guilty. When they are able to con-
vict them, they rejoice in triumph; if they are not able to, and on the
contrary somebody’s innocence flies out into the open, then they
wrinkle their foreheads, murmur among themselves, mutter, are in-
dignant and cannot stomach it, when they should actually be cele-
brating. What kind of justice is this? Where are the eyes of the
princes that they do not see this? Or if they do see it and know about
it, where are their consciences that they entrust the sword of justice
to such men? I will add here what I recently heard. I proposed this
point to a great man and urged him to conduct these intricate cases
calmly and thoughtfully and to apply his attention no less to how the
accused can be defended than to how he can be convicted. Further
he should not be more inclined toward holding than releasing some-
one as soon as he legitimately clears himself, either before or during
torture. This man answered that he is strongly encouraged by his
own prince to conduct trials as harshly as possible, that there is no
end to his reminders and instructions, and that he himself virtually
falls under the suspicion of the crime if he does not rapidly prose-
cute the matter, so what else can he do? I stood thunderstruck and
thought to myself: Can it really be the opinion of any German prince
that one conducts trials correctly as long as one conducts them
quickly? I just cannot believe it; I know that is not their opinion. But
if that really is their opinion, can German princes nevertheless have
servants, and Germans ones at that, who continue to conduct trials
against the dictates of their consciences lest their prince be dissatis-
fied with them? If I were a prince I could not be confident that such
men would remain faithful to me if they are not faithful to their own
consciences and do not dare to expressly refuse to conduct trials in
any way other than what they can defend before God in their own
consciences, however much their prince’s instructions may urge
them on. However this may be, I greatly fear that in large areas of
Germany it is hardly possible to name one judge or inquisitor who
labors equally hard to find a person innocent as guilty, and who
defends their innocence once it has been established just as he
defends a confession regardless of the extremely dangerous torture
Hellyer text 4/14/03 12:53 PM Page 55

question xvi 55

by which it was extracted. May God prove me wrong, because if I

am not, I have an irrefutable argument with which until now I have
always convinced myself that this matter is conducted unjustly and
the rulers do not have clear consciences.
precaution iii. Everything that is thought to be able to cor-
rupt inquisitors or judges should be removed, lest the opportunity
make the thief, as they say. For example, they should be given a fixed
salary and not a bounty for every execution.
Moreover, because such a bounty is base and for the executioner
alone, it can also present an opportunity for injustice because the
judges would want there to be more guilty people than fewer.
Therefore it is rightly excluded by the Caroline Criminal Code in
article 205.
I would also advise princes not to confiscate the property of the
convicted. There is some danger here and food for gossip; already
we hear the voices of the common people claiming everywhere that
the best and easiest way of all to get rich is from bonfires; that it is
beneficial if the suspicion of witchcraft can be transferred from the
villages to the towns and onto the families of rich men; that some
inquisitors have begun to build houses and improve their situations;
and that one can plan on making a profit from fields and farms and
other things. I know that such things are sometimes said impudently
rather than being truly meant, nevertheless it is better to remove
every opportunity for taunts of any kind whatsoever. Certainly the
justice of an inquisitor who through his men inflames the spirits of
the peasants against witches cannot be considered incorruptible.
Once the inquisitor is summoned by the peasants, he answers that
he will come and burn out this plague, but first he sends some col-
lectors ahead, who extract no small sum by going from door to door,
as if sealing a contract with an advance, as they call it. Once the
inquisitor has received the collected sum, he goes to the village, and
then he performs one or two incinerations and inflames the mood of
the common people by recounting the crimes and tricks which those
he just burned had confessed to. He pretends to leave but ensures
that he is prevented from doing so by his collectors mentioned
above, and he is persuaded to conduct another collection by which
he is retained until the remaining weeds are torn out. Finally he
leaves the patiently swindled village and takes himself off to another
one, where he begins the same business all over again. This clearly
appears to me to be a public tax, and I am amazed that the princes
Hellyer text 4/14/03 12:53 PM Page 56

56 cautio criminalis
grant it to their inquisitors or that the emperor grants it to the
princes. Particularly since we know that it nourishes the malicious
chatter of the common people in no small way, for if anybody con-
tributes a little more or a little less to these recurring collections,
both are noted by the gossips: the former because they want to re-
fute with their generosity the suspicion that they are perhaps witches,
the latter because they do not want to support justice out of fear for
themselves or their families.
precaution iv. Suitable judicial personnel such as we described
previously—well learned, virtuous, etc.—can only be obtained with
difficulty, but even if they can be found, we ought to fear such diver-
sity of judges and inconsistencies in procedure, for they can create
scandal and disturb the state. Since daily there arise new difficulties
regarding this crime which have not yet been encountered, the Car-
oline Criminal Code is no longer sufficient, so it is desirable that
His Imperial Majesty decree a new criminal code to be followed
throughout the entire empire in which everything to do with this
crime is treated so comprehensively that as little as possible is left to
the judgment and discretion of the judge.
precaution v. Because His Majesty is distracted by other ex-
tremely important imperial matters and wars, it would not be irrel-
evant but rather completely necessary and clearly incumbent on the
consciences of the princes and the advisers whom they have, or
ought to have, that if any princes want to institute a general inquisi-
tion against witches, they should, before they embark on such a dif-
ficult venture, order that a precise and special criminal procedure be
prepared, which they should command all their judges to read dili-
gently and follow accurately, as well as all the confessors who will be
entrusted with the consciences of the witches. Delrio, book 5 of his
Disquisitions, appendix 2, question 41, also greatly desires a proce-
dure of this sort from the princes, since it is absolutely necessary, as
does Tanner, disputation 4: “On Justice,” question 5, doubt 3, num-
ber 81, and many other learned and pious men who are carefully and
thoughtfully considering the business of witches these days. It is all
the more necessary because the procedure of many judges which
flourishes nowadays is unjust. Even if learned men very often criti-
cize many aspects of their procedure and clearly demonstrate from
either the law or reason or both that the judges conduct trials badly
and unjustly, all they accomplish is to hear ridicule and this ignorant
response: “This is current procedure.” Therefore, if the law and jus-
Hellyer text 4/14/03 12:53 PM Page 57

question xvi 57

tice depend on procedure, then it is necessary that a common pro-

cedure for capital crimes be drafted to which erudite and intelligent
men of concerned conscience may also appeal and not only the
incompetent and those unskilled in reasoning.
precaution vi. Furthermore, the drafting of this code or crim-
inal procedure requires advice and corrections not only from legal
experts but also from theologians and doctors. Our commentary
suggests many things which could help. Then, when this code has
been written, it should first be offered to several universities for ex-
amination and disputation. Next, it should be sent to the judges to
be put into effect, with the admonition that if within the space of one
year anything new or any unresolved difficulty or something similar
occurs which should be added, removed, or changed, they should
have it well noted, so that it can be discussed further and be added
or removed. So it should happen that, after careful revision, some-
thing excellent will be produced. It is to be hoped that when we use
the care and diligence that are within us, then Almighty God will
ensure that we do not splatter the tribunal of judgment with the
blood of innocent people through any fault of our own. Otherwise,
if we do not conduct trials in a way other than that which I now see
in use everywhere and undertake every effort to remedy them, then
I cannot in good conscience advise any prince to do anything other
than to end them if he has begun them or to abstain from them if he
has not, because of the manifest ruin of many innocent people whose
blood cries out. Recently I gave this answer when I was asked about
this matter—whoever advises differently either is ignorant of what
actually happens or is himself doing what I am complaining about or
will complain about below. Recently a man spoke entirely to the
point when he said that public errors could be corrected and justice
established only by making a supplication to the supreme altar of
justice, that is, to the most pious father of Germany, Ferdinand II,*
that he impose a moratorium on the rulers until they more clearly
instruct judges on their method of conducting trials, and meanwhile
if there is anyone who wants to criticize it, he is not harmed.
precaution vii. Since many people consider that the judges’
impunity is no small reason why many of them have lax consciences,

* Emperor Ferdinand II, Holy Roman Emperor (1619–37), archduke of Austria,

king of Bohemia (1617–27), and king of Hungary (1618–25), was a fierce patron
of the Catholic cause during the Thirty Years’ War in Germany.
Hellyer text 4/14/03 12:53 PM Page 58

58 cautio criminalis
the prince will take care to be better informed about their trans-
gressions, so that when they err he may punish them severely. For
example, if it should happen that a woman is subjected to torture
without sufficient evidence, the prince should compel the judge to
compensate the violated woman exactly according to the usual prac-
tice of the law and right reason. Therefore once judges have under-
stood that they cannot be negligent and lax with impunity, they will
devote the care and attention to their business which will remove or
diminish the danger that we have been discussing so far. That will be
the immediate remedy miserable people fervently seek with their
infinite sighs. But who among the princes will adopt it? Or rather,
who will explain it to the princes? Somebody recently faulted me and
mocked what I had thought in this matter, namely that I had dared
to imagine with great hope that there would be a prince who would
order that his inquisitors’ errors be investigated. I do not know if it
is the case, but if there is not a single prince who will, then certainly
this negligence on the part of our highest rulers is to be faulted. I will
add here what recently occurred. Two noblemen, whom I can name,
having been granted permission to speak freely by several princes,
proclaimed in all sincerity regarding certain witch-hunting inquisi-
tors that if only they were commissioned, they would investigate the
inquisitors with exactly the same evidence and tortures that the in-
quisitors themselves were accustomed to use, and if they could not
immediately establish that they were manifestly guilty of sorcery
and consign them to the flames, then they would pay with their own
heads. I accept the same condition and openly declare that if only I
were allowed to flip through the public records, which are not faith-
fully kept now, I would show that everywhere they are full of errors.
But to what end? The princes have heard these things yet keep quiet.
Their advisers hear these things yet keep quiet. What will happen?
Surely God does not see these things, nor hear the groaning of the
innocent.
Question XVII. Whether prisoners in cases of magic should be
permitted a defense and granted a lawyer?
i am ashamed of this question, but the wickedness of our times
wipes away shame. The ignorant think (and indeed maliciously and
unfairly, since hardly anyone can be so ignorant) that because the
witches’ crime is an excepted one, we may well and truly preclude a
Hellyer text 4/14/03 12:53 PM Page 59

question xvii 59

defense of any kind. But I will briefly explain what one should think
on this question in a twofold answer.
i answer i. When it clearly is an excepted crime, a defense is
excluded and a lawyer denied by the common law, according to cap.
finale de Haereticis in 6 [C. 1, 5, 2 ?]; & legem quisquis, § denique,
C. ad. leg. Iul. [C. 9, 8, 5, § 2]; & leg. per omnes, C. de defensione
civitatum [C. 1, 55, 6]. So if a prisoner does not deny the crime, but
having admitted it, wants to defend it, that is, excuse it, for example
by stating that it is a liberal art or that she has been deceived or com-
pelled by the devil, then she can be denied a defense and a lawyer.
the reason is that excuses of this sort are frivolous and there-
fore can be thrown out and not heard, especially since the atro-
ciousness of this crime has already been sufficiently determined and
defined by the common consensus of the doctors. But this is not the
difficulty here, so the proposed question does not concern this case.
And so
i answer ii. When the crime is not fully and clearly established,
the prisoner must be permitted a defense and granted a lawyer,
according to the common opinion; see for example Julio Claro, §
haeresis, number 19, and Farinacci, question 39, numbers 109 &
166.* This must also be upheld in excepted crimes, as the authors
cited by Delrio and after him by Tanner, disputation 4: “On Justice,”
question 5, doubt 3, number 76, rightly think, namely the professors
of the Universities of Ingolstadt, Freiburg, Padua, Bologna, the au-
thors of the Malleus Maleficarum, Eimericus, Penna, Humbertus, Si-
mancha, Bossius, Rolandus, etc. But why should I add authors or call
upon the common opinion, as if the question were to be settled by
authority? For clearly, according to natural law (as no one acting
rationally would want to deny) you can defend yourself if your guilt
has not yet been proven. So if a prisoner does not wish to make ex-
cuses for the crime but to clear herself of it by denying that she com-
mitted that crime about which she is being questioned, she must be
granted a completely unprejudiced defense and the best lawyer who
can be obtained. Indeed it is not at all the case that they should be

* In his critical edition of the Cautio Criminalis, Theo G. M. van Oorschot con-
cludes that Spee was not citing directly from Claro and Farinacci, since both of
his citations are incorrect (but are corrected here). For complete notes on Spee’s
sources, consult that edition (Tübingen: Francke, 1992).
Hellyer text 4/14/03 12:53 PM Page 60

60 cautio criminalis
denied her because it is an excepted crime, but rather for that very
reason they should be granted all the more promptly—in fact they
should quite rightly be forced upon her. These are the reasons:
reason i. It is ridiculous to shout that the crime of magic is
excepted before it is established that the prisoner is actually guilty of
it. For even if it is excepted, if it is atrocious, if it is deadly, whatever
it may be, what if the prisoner denies that she committed it? But if
she herself admits the crime, then certainly carry on, say that it is
excepted, and proceed as is proper in excepted crimes. But whether
she committed that crime is precisely what is still in question now.
Therefore it is ridiculous to hurl the magnitude of the crime against
someone.
reason ii. In accordance with natural law no one may be denied
a fair and unprejudiced defense and the best that can be had. There-
fore whoever is not able to defend himself should be defended by
another who appears to be the best suited to do it. Those things
which are in accordance with natural law must be observed in ex-
cepted crimes just as much as in non-excepted ones, as I said above.
Therefore we allege in vain that there is an exception here, when
according to natural law and the dictates of right reason there is no
exception.
reason iii. If, however, as I have said, it is in accordance with
natural law that no one can be denied a fair defense, then the greater
your need to defend yourself and the greater the evil against which
you are defending yourself, the more unjust it is to deny you a
defense. For example, if it is granted by natural law that I cannot be
prevented from defending myself against a knife blow, then all the
less can I be prevented from defending myself against a cannon shot.
Therefore it follows that if I derive from nature the right to defend
myself and clear myself of a lesser crime, then all the greater is my
right to defend myself and clear myself of a greater crime, especially
when it is the atrocious crime of witchcraft. Indeed it follows that
the more serious the evil and crime of which I am accused and which
I must repel, the better should be the defense which is granted to me
through better and more capable lawyers. Therefore, according to
the power of natural law this cannot be denied.
reason iv. In addition to natural law, Christian charity de-
mands the same thing, since by its nature it not only does not hin-
der you in your defense but rather wishes to help you and provide
you the arms with which you may do it better. In fact, the greater the
Hellyer text 4/14/03 12:53 PM Page 61

question xvii 61

violence and evil you are trying to avert from your head, the less
charity impedes you, the more readily it helps you, and the more
quickly it puts better weapons in your hands. What I wanted to
prove follows from all this, namely that not only can one not deny
that everyone must be granted the best and most complete defense
possible in an excepted crime, but even more so than in a non-
excepted crime. Whoever acts in a way other than what natural law
and Christian charity obliges him to in a matter of great moment
thereby makes himself guilty of a mortal sin. Can anyone among the
princes’ advisers be so simple that he does not know this, or so care-
less that he does not warn the princes about it? For we know that the
best and most praiseworthy princes have inquisitors who not only
disregard both the pontifical bull Coena* and excommunication
when they lay their hands on ecclesiastical persons without the spe-
cial license of the Apostolic Chair, but also dare to do it on the basis
of evidence that any schoolboy pulled away from his grammar book
would laugh at. Moreover they take care that these churchmen can-
not defend themselves in the best way possible. And this of course is
zeal for justice, so that we may use authority unjustly and subvert
every ecclesiastical liberty that we should really support as strongly
as possible. Because if ecclesiastical persons are undeservedly denied
a defense and must be found guilty by fair means or foul no matter
what they do, what do other, common souls have to hope for! Many
are amazed that the ecclesiastical orders have not bitterly com-
plained about this in the proper places.
reason v. In order to make clearer the absurdity, ignorance,
and indeed malice of those men who believe that in an excepted or
atrocious crime the prisoner should be denied a lawyer when in
other crimes one is allowed, the reader should let me describe how
they proceed. This is how it happens:
[I.] Somebody accuses me of committing a theft. This is a great
stain on my reputation. Therefore these expert and good men then
allow me to defend myself and wash off this stain. If I am not able
to do it properly myself, then I may choose a lawyer who will repre-
sent me.

* The bull “In Coena Domini” was first published in the fourteenth century and
was regularly updated thereafter. It contained a list of offenses that merited
excommunication and severely restricted the jurisdiction of lay courts over clergy,
particularly in capital crimes.
Hellyer text 4/14/03 12:53 PM Page 62

62 cautio criminalis
II. A second accuses me of adultery. This is a greater stain, there-
fore they allow me to wash away this stigma also.
III. A third accuses me of witchcraft. This is the greatest and most
vile stain. Therefore they immediately prohibit me from defending
myself and removing the blot. They reason that this is the most vile
stain, the most atrocious and dismal crime, therefore it may not be
washed off.
Who could not groan at such splendid reasoning! Obviously the
completely opposite conclusion prevails: since the greatest crime is
imputed, since I am smeared with the greatest stain, I must provide
myself with greater effort and better means so that it does not be-
smirch my reputation. I am ashamed of Germany because we do not
know how to argue better in a matter of such great importance.
What do other nations say which are already accustomed to laugh-
ing at our simplicity? It is certainly a shameful matter which even
infants cannot approve of when you bind someone’s hands against
the attack of a very poisonous snake, yet against the bite of a flea you
free both. I will add here what a renowned man who was himself a
judge for many years recently told me. A certain prince, whom it is
not relevant to name here, punished witches harshly for several
years. It happened then that a cleric was arrested. His order roused
itself and sought to provide him with a defense. The prince com-
pletely forbade this but nevertheless asked the judge, to whom I was
speaking, what he thought. Since he answered that he thought a
defense should of course be granted, the prince referred the matter
to a German university, from which he received the same answer.
The prince was indignant: if a defense is to be granted to everyone,
then how many innocent people have we already destroyed!
Wonderful! How many innocent people have other princes de-
stroyed for the same reason, and continue to destroy every day! God
certainly notes the number and will produce it in judgment in his
own time. Let the rulers beware—while they think that they are
burning with zeal for justice, they will actually cause themselves to
burn in flames in the afterlife. Learned and prudent men must also
say this before their kings and not be perplexed, because it is the
truth. Nevertheless the aforementioned prince simply wanted to
continue, since if he did not, then it would follow that he was con-
demning the trials he had already conducted. Finally someone calmed
his unsettled mind with these words: if one has sinned already, it
Hellyer text 4/14/03 12:53 PM Page 63

question xviii 63

seems that one should not sin further, for an earlier wrong cannot
ever be corrected by a later one but only magnified.*
Question XVIII. What corollaries should one gather from the
preceding discussion?
i answer, one should conclude these corollaries. Even if they
can sufficiently flow into the reader’s mind by themselves as he reads,
nevertheless, so that they may strike him more firmly, I will arrange
them in order:
corollary i. It is unjust to deny a lawyer to women who wish
to defend themselves and deny that they are witches.
corollary ii. Indeed, they should get the best lawyer possible,
and the one that they themselves want.
corollary iii. If they do not know this or do not think of it, it
is also unjust not to advise them of this right and to inform them
honestly.
corollary iv. She should be helped in her defense and every-
thing necessary granted to her, rather than hindered by every means
possible.
corollary v. One ought to celebrate rather than frown if
something emerges which reveals the prisoners’ innocence.
corollary vi. The more serious the crime for which some-
body is arraigned, the more seriously he who refuses the prisoner a
defense sins. Thus in the crime of magic he would sin greatly.
corollary vii. When the accused enter the prison, they should
be granted several days to collect themselves and consider how they
might best defend themselves. However, it is unjust to take them
away to be tortured immediately upon their arrest. The reason is
that otherwise, confused by the sudden change in their situation,
they would not be sufficiently alert and prepared to put up the most
complete and best possible defense, which, as we have seen, natural
law and right reason fully grant them.
corollary viii. The accused must in every case be given a copy
of the evidence that has been brought against them, for if they have
been granted a lawyer and a defense, then there is no reason why this
can be denied. See more detail in Tanner, disputation 4: “On Jus-

* Perhaps a reference to John 5:14: “Afterward, Jesus found him in the temple, and
said to him, ‘See, you are well! Sin no more, that nothing worse befall you.’”
Hellyer text 4/14/03 12:53 PM Page 64

64 cautio criminalis
tice,” question 5, doubt 3, number 73. Consequently Delrio some-
where disapproves that the contrary is practiced in some places.
Nevertheless note that in Sprenger’s Malleus Maleficarum, part 3,*
neither the accused nor their lawyers are to be given the names of
the witnesses testifying against them if there is some danger that
their power can threaten the witnesses, but if there is no danger, the
names are to be given to them, just as is standard in other cases.
corollary ix. People whom the accused want to use to help in
their defense are not to be denied access to the prison, which is also
decreed in the Caroline Code, article 14. Therefore I also consider
those men to be most unjust who try to prevent any learned person
whom the accused desire from reaching them, fearing that he might
suggest arguments to them for overcoming the charges, when in fact
if anyone can be shown to be innocent, this should of course be
greatly desired. Recently a priest secretly demonstrated in private to
some judges from their transcripts that they had tried some women
illegally, but the only notice they paid to this warning was to execute
the prisoners and forbid the priest to be admitted to any more pris-
ons. Indeed I now hear that this has happened to other people.
corollary x. The judge himself must ensure that the captives
do not lack lawyers.
corollary xi. Lawyers who do not want to apply their efforts
to cases of witchcraft and who deter others from doing so are fool-
ish. Well, let me correct myself, for they are acting wisely. For woe
betide any who want to work on these cases, since they will bring the
accusation upon themselves, as I have already warned above, as if
perhaps they too are not free from this art. Oh, this is the liberty of
our times! If anyone dares to defend someone, then he himself is
already suspect. Indeed I will even say that he who merely dares to
warn the judges on this matter in the most amicable way possible is
suspect or at least detested. This is the reason why I have not pub-
lished this warning text, which I wrote a long time ago, but only
communicated it anonymously to a very few friends. The example of
the most devout theologian Tanner, who stirred up a lot of people
against him with his completely true and prudent commentary,
scares me.
corollary xii. The accused can appeal against the decree of
torture, which the text of the law l. 2 C. de Appell. recip. [D. 49, 5,

* Part 3, questions 9 and 10.

Hellyer text 4/14/03 12:53 PM Page 65

question xviii 65

2] states and is the common opinion of the doctors Bartolo, Baldus,

Marsilius, Cotta, Follerus, Gomez, Prosper Caravita, Brunus, and
others cited by Farinacci, question 38, number 10.
corollary xiii. If, this appeal notwithstanding, the judge pro-
ceeds to torture and because of it wrests a confession from the
accused, this confession is consequently void and worthless for a
conviction, as these same authors judge in Farinacci, question 38,
numbers 17 & 22.
corollary xiv. Even if the accused is consigned to torture by
legitimate evidence, nevertheless he cannot be subjected to torture
if there is contrary evidence that indicates his innocence just as
clearly as the initial evidence indicated guilt. For one presumption
rightly cancels out the other. See Menochio, De Praesumptionibus,
book 1, questions 29 & 30, and Mascardi, De Probationibus, book 3,
conclusion 1224, number 1ff.* And when two mutually contradic-
tory presumptions clash, namely those of guilt and innocence, the
presumption excluding guilt is always to be preferred, says Fari-
nacci, question 38, number 112. In fact he also says that according
to the common opinion of scholars, many of whom he cites, this is
the case even if the evidence favoring the accused is a little inferior
to that offered against him. Who, I implore, adheres to this tenet
nowadays? Who pays attention so that it is adhered to? I wonder
about the consciences of those who do not take better care of their
princes’ souls but remain silent.
corollary xv. Those judges who pretend to grant the prisoner
a defense but really do nothing of the sort are completely unjust.
Therefore, so that the princes might learn what those phrases mean
among some of their inquisitors, when they say that they grant
the accused every opportunity for a defense, that Gaia’s defense has
been heard, but it did not stand up, etc.; so that the princes might
learn moreover the reasons for which the inquisitors order the ac-
cused tortured, they should know that in some places matters pro-
ceed in this way: the inquisitor calls the prisoner before him and tells
her that she is not ignorant of the reason why she has been arrested,
that this and that evidence has been brought against her, therefore
she should clear herself and answer. When she answers, even if she
exactly accounts for the individual charges, as I myself have very
often experienced, so that even the slightest one has been refuted

* Again, these citations are from Farinacci.

Hellyer text 4/14/03 12:53 PM Page 66

66 cautio criminalis
and you can grasp the worthlessness of the whole accusation with
your hands, nevertheless, without conducting any further discussion
of her response, nor adding a word, just as if the woman had spoken
to the wind or had told fairytales to the stones, the inquisitor says
this single thing to her, that she is to return to her cell and should
consider well whether she wants to persist in her denials, since she
will be summoned again in a few hours. When she has returned to
her cell they write in the records that when examined she persisted
in her denials and therefore it is decreed that she is to be tortured.
Then when she is summoned back, all she hears is this: “You
stood before us and you denied your guilt. We granted you time so
that you might better consider and recover from your stubbornness.
What do you say now? Do you still persist in denying it? Because if
you continue to deny it, behold the transcript of your case. The
decree of torture has been made out for you.” That is how they
speak. After these words, if she still denies it, she is led off to torture.
As for those things pertaining to her refutation of the evidence,
there is not the slightest mention of them, as if they have all been
blunted by silence alone, and it would be entirely the same whether
the woman had defended herself or just yawned.
What was the point of listening to the woman? What was the
point of ordering her to clear herself if she cannot ever be cleared?
Was there ever anyone who was not led off to torture, however well
she cleared herself? I call god as my witness that I, who am not
unaccustomed to scholastic disputations, have heard such careful
defenses that I did not find any difficulties remaining that had not
been answered fully. And I know other learned men who would dare
to swear the same thing under oath. It is only the princes who do
not know this but are informed quite differently—I do not know
through which divine punishment this occurs. So the evidence that
the inquisitors have against the accused is diligently written into the
records; but not the slightest little word mentions that most of it was
not fully proven evidence, nor, if it was fully proven, which is rare,
what was said in response to it and how exactly it was refuted. When
I carefully consider everything that I have said and what I will say, I
cannot do anything else but fear that those rulers who order that
witches be investigated today are bringing damnation upon them-
selves, since the investigations are conducted so dangerously.
corollary xvi. From what I have just said, it follows that the
inquisitors necessarily err most seriously even if they proceed from
Hellyer text 4/14/03 12:53 PM Page 67

question xviii 67

the “alleged and proven” evidence. The princes and the scholars
whom they consult must absolutely acknowledge this, for every-
where people err out of ignorance of that phrase. For today many
judges do not have much legitimately proven evidence but never-
theless when they prosecute on this evidence, they say that they
prosecuted according to the “alleged and proven.” Therefore they
necessarily prosecute unjustly, even if they do prosecute according
to the alleged and proven. Because this is to say that what is alleged
and proven is the same as what is alleged but unproven and even
refuted. This is the meaning of those words. In order that I might
not appear to contrive this out of spite, I will prove it or be subjected
to the punishment the law decrees for slanderers. Some of my friends
are amazed when they read this and ask whether this is really the way
things are. I am used to replying to those who cannot believe it that
they are still completely ignorant of the first principles of this mat-
ter and that it irks me to go to the effort of explaining it. Let them
ask god to inspire princes who want to know the truth and under-
stand the inquisitors’ phrases. There will be people to explain them
to them, if they are allowed to.
corollary xvii. A trial in which the accused is denied a fair
defense of this sort is null and void, and the judge along with the
prince himself is held to restitution. If counselors and confessors do
not warn their princes and properly instruct them, then they are
equally at fault and will be severely punished by God.
corollary xviii. If it should happen that priests are arrested
on the basis of feeble evidence, then it is completely fair that at least
out of great respect for their great estate and the Catholic Church
they are granted writing implements for several days or at least one
so that they might draft a brief appeal or defense to their prince or
the emperor. Could they ask for anything less than this? In fact I
think that even barbarous heathens do not deny this paltry favor to
their idolatrous priests before they are killed.
corollary xix. Nor is it an unjust request that at the end of
their lives prisoners are permitted to use a confessor whom they
themselves have chosen and not one imposed on them by the judges.
It seems to me to be a most unworthy thing that recently even a
priest was not granted the freedom to make his confession. Are we
to think that this is known to the highest heads of Christianity?
corollary xx.When it perhaps happens that a priest of irre-
proachable life and reputation is unfairly and maliciously ensnared
Hellyer text 4/14/03 12:53 PM Page 68

68 cautio criminalis
and arrested and is miraculously extricated from his chains and
prison, it is not an unjust request that he be permitted to publish
his defense in the German empire and to explain how he has been
treated so far, so that unless everything that he alleges can be con-
firmed by legitimate witnesses he will present himself to the most
hallowed emperor and once again head off to jail and death.
Question XIX. Whether prisoners accused of witchcraft should
immediately be presumed to be necessarily guilty?
this question seems to be stupid, and naturally it would be if
either the simplicity or the zeal (I generally construe this as igno-
rance, imprudence, and deficiency of judgment)—I wish it were
not correct to say it—of certain priests did not impose upon me the
necessity of answering it. For I hear that there are some who assault,
menace, and harass these completely downhearted prisoners when
they visit prisons, and encourage them to confess their crimes in
such a way that one cannot but conclude that they have already
made up their minds that not one of them can be innocent.
Meanwhile, however much those unfortunate women lament,
whatever they are prepared to say in order to explain their case or
discover the reason for their disgrace, or if they demand to at least
be heard and to confer confidentially with a clergyman without wit-
nesses, to ask for advice, to receive some consolation in all their sor-
rows, and similar things which troubled people usually desire, they
do not find anything other than deaf statues animated by this one
desire, to perpetually thrust this crime of witchcraft before their
faces and adorn them with shameful titles as if they were completely
guilty. They call them stubborn, obstinate, stinking whores, pos-
sessed, facades for the devil, mute toads, slaves of Gehenna, etc.
In addition these same clergymen do nothing among the judges,
prison warders, torturers, and others but redouble their perpetual
goading to have the prisoners interrogated harshly and tortured: this
or that woman seems particularly stubborn, there is no doubt that
the devil is holding her tongue, she has a demonic appearance, they
would not hesitate to stake their life that the prisoners truly are
witches, and further words of that kind intemperately thrown. So
prisoners have occasionally been heard to say (but what is “occa-
sionally”? Very many women say these words very frequently) that
they would even prefer to let the executioner in than a priest of this
sort. He has caused them more trouble with his insistence than the
Hellyer text 4/14/03 12:53 PM Page 69

question xix 69

torturer with all his instruments. On the other hand, the judicial
personnel are rather pleased that they have obtained such a defender
among the clergy who does not restrain and regulate the zeal of the
judges but who sharpens it considerably. I have seen and heard sev-
eral such priests. It is well established that there are more because I
hear inquisitors who state emphatically that if other clerics are
restrained and circumspect in this matter, then they are not to be
used. With payments and alms they buy impetuous and ignorant
ones such as we have described who have nothing other than the hot
air with which they promote themselves, or at least they win them
over with food and drink. To reveal my thoughts concerning this
matter, I will speak to the proposed question. And so
i answer, to immediately presume that the prisoners are just
guilty, and therefore one may do to them those thing which it has
been said some priests do do to them, is competely intolerable. These
are the reasons:
reason i. I showed above that some innocents are de facto
killed along with the guilty. Therefore not all prisoners are neces-
sarily guilty. Therefore one may not stubbornly assume them to be.
Therefore they may not be pressured as if they were conveniently
guilty and any opportunity for a hearing completely ruled out. Let
them speak if they want something. It is for the clergyman to listen
and instruct and, whether they be guilty or innocent, to stand by
them all with spiritual consolation and help.
reason ii. The judges themselves presuppose that it is not cer-
tain that every prisoner is really guilty. For they proceed to torture
and interrogation because her guilt is not yet clear. If it were clear,
then it would not be right to proceed to torture, as I will show below,
in Question 39.
reason iii. All theologians and legal scholars teach that when
the matter is not yet clear, one must grant the benefit of the doubt,
for the law of charity and justice demands this, as they explain at
length. Thus Emperors Honorius and Theodosius carefully decreed
it when they said: We order it be observed that whoever is summoned on
a capital crime is not to be immediately considered guilty when accused lest
we subjugate innocence, leg. 17 C. de accusationib. [C. 9, 2, 17]. In their
naïveté some ignoramuses think that all public records and courts are
so conscientious that they do not often err gravely in the conduct of
their duties. I like the words of a particular commentator on the
Gospels whom I read today concerning the chains of John the Bap-
Hellyer text 4/14/03 12:53 PM Page 70

70 cautio criminalis
tist: He who is publicly thrown into chains and arrested is not necessarily
evil, since completely honest men are often put there through false accusa-
tions. The rulers and princes of this world abuse their power again and
again. So he wrote.
reason iv. Nothing is befitting of a priest except gentleness and
Christian mildness, which are clearly incompatible with all those
things I previously mentioned regarding those imprudent clergy-
men, as will be quite apparent to anyone examining them. We do not
want to enlarge on things that should rather be hidden from the eyes
of the people.
reason v. Even if women whom a priest of this kind is bother-
ing in the way I described really are guilty, he himself cannot be
certain of it. But even if he were certain, then such unreasonable
harassment would not be appropriate or useful. The prisoners would
be made more obstinate, rather than being prompted to admit the
truth by the kindness and sweetness proper to an ecclesiastical per-
son. If this path cannot lead them to acknowledge their crimes, what
then? Patience must be employed. We have done what could be done
properly and in good conscience. Nevertheless I will not deny that
when more benign means have been tried in vain, harsher scolding
is also useful on occasion in certain matters, but only in such a way
that we continually return to that paternal gentleness with which we
must act, so that the prisoners may see that we are piously and sin-
cerely looking after them and their salvation with great love and do
not want to turn them into criminals by force.
reason vi. However if a woman whom an ignorantly stubborn
counselor attacks is innocent (as many certainly can be), what is
more likely to happen than that she will withdraw into despair or a
fatal sorrow of the soul? Once everyone has abandoned her, she
notices that she is also cut off from any hope of receiving the conso-
lation that until now she had thought she would find in her spiritual
father. Truly, I would not be lying if I said that I know what sighs and
groans this matter has aroused in many prisoners. God sees and calls
to account not only those who themselves sin in this matter but also
those who appoint these kinds of confused people to a dangerous
office. I am stating this warning in this matter because it has been
observed in several places that some religious orders assigned priests
to these cases who were considered in their own houses to have dis-
tinguished themselves either through their lack of judgment, their
unreasonableness, their belief in their own knowledge combined
Hellyer text 4/14/03 12:53 PM Page 71

question xix 71

with ignorance, or through all of these things simultaneously, so that

it became necessary to send more skilled and discerning men be-
cause of complaints about them.
reason vii. It is to be feared that when one deals so impru-
dently with suspects that many of them will make sacrilegious con-
fessions, and the salvation of their souls will then be put in jeopardy.
I will recount what I know to be well established about a certain
priest, who accompanied hardly fewer that two hundred accused
witches to the stake. When he was about to hear them make their
confession in the dungeon, he would ask them whether they wanted
to admit the crime under the sacrament just as they had under tor-
ture before the judge. He simply would not hear that they had not
committed the crime. So if any of them did not immediately promise
this before their confession, but hesitated and only said in general
that they would speak the truth in their confession, he would deny
them the sacrament completely, adding that they would therefore die
like dogs without the sacraments of confession and the Eucharist.
Consequently, since none of them, whether guilty or not, wanted to
be subjected to torture again or to die, as he said, like a dog, they
were forced to state in the sacrament that they were guilty and were
punished accordingly. Very recently at a public dinner a very famous
doctor of laws recounted this in praise of the priest as an excellent
strategy for eliciting the truth. I, however, marveling, signed a huge
cross before me and groaned, and all the more loudly because that
lawyer was an inquisitor in witch trials to whom that priest had been
assigned as the witches’ confessor. Obviously the lid fits the pot! And
so stimulated by my curiosity, I myself then entered the prisons to
observe if this was the case. It is not fitting to say what I saw there.
I am reminded of an opinion that Tanner somewhere cites from
Ecclesiastes 4:1: I turned to other things and saw the calumnies that are
produced under the sun and the tears of the innocent, but there was no one
to console them; nor could those destitute of help resist their violence; and I
praised the dead more than the living, and I judged more fortunate than
either he who has not yet been born and has not seen the evils waged under
the sun. Moreover there are other clerics who have dared to copy this
stratagem. So I do not know what to think of the superiors of reli-
gious orders and their consciences when they do not notice this.
reason viii. The extreme things that I have also related are
spoken too recklessly and are hardly befitting a priest: This woman
and that one seem to be particularly obstinate; there is no doubt that the
Hellyer text 4/14/03 12:53 PM Page 72

72 cautio criminalis
devil has held their tongues; their appearance is diabolical; they do not hes-
itate to stake their lives that they really are witches. If anyone speaks like
this in the street he should be rebuked. How much more so a priest,
since one can rightly fear that through such words he could be the
cause of the prisoner’s grave torments and death, and therefore he
should be censured for irregularity*—although ignorant men of this
kind do not know what an irregularity is, and how it may be com-
mitted. I recently heard it said about a certain priest, one even a lit-
tle learned, as it seemed to him at least—God save us!—that he
would incite the judges to seize particular women and torture them.
Then he would urge them not to spare young boys, saying that this
one and that one seemed capable of being tortured, that they could
be executed without any scruples, that one could not hope for any
improvement from them. He would actively help in seeking out their
accomplices, whom he himself entered into his notebooks. He would
assist in the torture, give instructions, suggest arguments by which
further guilt might be detected, and many similar things, which I
have now almost forgotten. What could this man care about irregu-
larities? Thus it is not amazing that the inquisitors, themselves
equally skillful, marveled at such a wonderful helper and suspected
that he, who alone had mastered their own method of conducting
trials to the envy of all the watching theologians, was sent to them
from heaven. Such are the misery and ignorance of our times! What
does it help to have studied, if this is the reward for ignorance? Con-
fessors should read what I have to say below in Question 30, where
I will instruct them.
Question XX. What should be thought of tortures or interroga-
tions? Whether they put innocent people in moral and frequent
danger?
i answer, it is very much the nature of torture that when I con-
sider from all angles in my memory the type of things I have seen,
read, and heard, I cannot conclude anything other than it does put

* Irregularity is an impediment under canon law which prevents someone from

entering or exercising holy orders. Irregularity can be the result of a defect (such
as insanity, bodily mutilation, or illegitimate birth) or of certain crimes. The crime
Spee is referring to here is homicide. As a professor of moral theology, he would
have discussed in his lectures the circumstances under which particular crimes
would result in irregularity.
Hellyer text 4/14/03 12:53 PM Page 73

question xx 73

innocent people in moral and frequent danger* and fills our land of
Germany with witches and unheard of crimes —and not just Ger-
many, but any land whatsoever that starts to use it too. These are the
reasons:
reason i. The tortures customary everywhere are by their very
nature great and cause grievous suffering beyond measure. How-
ever, it is the nature of the greatest suffering that we do not fear
meeting even death itself in order to avoid it. Therefore there is the
danger that many women, in order to extricate themselves from the
agony of the rack, might confess to crimes they have not committed
and fabricate any crime for themselves, either whatever the inquisi-
tors suggest or what they themselves have previously planned to
confess.
reason ii. It is even true that the toughest men who were strung
up in torture for the most serious crimes have solemnly affirmed to
me that they could think of no crime so great that they would not
immediately admit to it if their confession would free them for just
a moment from such agony. Indeed before they would allow them-
selves to be led back in to torture, they would prefer to skip sure-
footedly into ten deaths. If other people can be found who would
prefer to be torn apart rather than break their silence (as Aelianus re-
calls concerning the Egyptians in Varia historia, book 7, chapter 18),†
such people are certainly very rare today, and sometimes they are
protected against any sensation of pain by arts which are not good
ones. Thus with good reason the law On Interrogations, 1ff. [D. 48,
18, 1, 23], calls torture a fickle and dangerous matter.‡ This is what
it says: It is declared in the Constitutions that torture should not always be
trusted but only sometimes, for it is a fickle and dangerous thing which
cheats the truth. For many defy those torments with their hardiness and
endurance so that the truth cannot be extracted from them in any way.

* Moral danger is the danger of sinning. Spee argues in this chapter that torture
exposes innocent people to the danger of sinning by forcing to them to denounce
other innocents who are themselves exposed to both physical and moral danger.
† Claudius Aelian (3rd century ce), Varia historia, published in several sixteenth-
century editions. Spee incorrectly gives book 7, chapter 8, rather than 18, indi-
cating he may not have been citing directly.
‡ Although Spee cites numerous passages from the Corpus Iuris Civilis, virtually all
are taken from authorities such as Farinacci and Claro. The chief exception is the
section governing the use of torture, “On Interrogations” (“De Questionibus”)
(D. 48, 18), which Spee quotes verbatim in several passages.
Hellyer text 4/14/03 12:53 PM Page 74

74 cautio criminalis
Others are so weak that they will state any lie rather than suffer torture;
they will confess in any way whatsoever and put not only themselves in dan-
ger but others too. Cicero says in his Partitiones: Many people have fre-
quently feigned things to avoid suffering, preferring to die by confessing to
a falsehood, rather than to suffer by denying it.* And in Pro Sulla the
same author says no more oratorically than truthfully: They threaten
us with the examination and torture of our slaves. Although we are not
supposed to suspect any danger in this, nevertheless pain governs those tor-
tures. It directs the nature of both mind and body. The torturer rules them,
desire twists them, hope corrupts them, fear weakens them, so that in such
straits no place is left for the truth, etc.†
reason iii. Here is an example to better illustrate either the
enormity of torture or many people’s weakness: Confessors who
have any experience should know that there are many who will
falsely inform on others under torture. Afterward, however, these
people realize that they cannot be absolved of their sins in the sacra-
ment of penance until they save those whom they have put in mor-
tal danger through their false denunciations. But they respond that
they cannot do it because they are afraid that if they utter a retrac-
tion they will be put to the torture again. If their confessor insists
that under penalty of eternal damnation they cannot leave innocent
people guilty and that some way has to be found to save them, they
often respond that they are prepared to defend those people’s inno-
cence in any way possible, but if they cannot do it without any dan-
ger of being led back to torture again, then they cannot and will not
do it, even if it is a matter of their own salvation. From this I there-
fore infer that if torture for many people is so grave and intolerable
that they would rather be damned than tortured, then one cannot
prudently deny what we have said but can with good reason believe
that torture brings with it the considerable danger that, unless it is
earnestly resisted, the number of the innocent will swell that of the
guilty.
reason iv. I confess that I myself could offer so little resistance
to such punishment that if I were brought in to be interrogated I
would not hesitate right at the beginning to declare myself guilty of
any witchcraft whatsoever and embrace death rather than such tor-
ments, especially since (as I infer from the more common opinion of

* Marcus Tullius Cicero, Partitiones oratoriae, 50.

† Cicero, Pro Sulla, 78.
Hellyer text 4/14/03 12:53 PM Page 75

question xx 75

the theologians) whoever is compelled by the violence of torture to

declare himself guilty does not sin mortally. I have heard several
very pious men who are otherwise remarkable for their most praise-
worthy steadfastness and fortitude say the same about themselves.
Being aware of human beings’ general weakness and the severity of
this kind of pain, they do not dare to promise more of themselves
than is common to all. So of course I will not be charged with impru-
dence if I say that I am afraid that when weak women are subjected
to such interrogations, the force of the torture extracts false confes-
sions from them, and in this way innocent people are subjected to
danger and pain along with the guilty. Read this and consider what
I say below in the Appendix.
reason v. Also the danger in the business of witches is increased
by the condition of their sex. Who does not know how feeble an ani-
mal woman is, how intolerant of suffering, how prompt her tongue?
Indeed, if men, even pious ones, as we have said above, are so weak
in spirit that they would prefer death to torture, what are we to pre-
sume of that fragile sex?
reason vi. The danger is likewise increased because torture is
decreed for the most frivolous reasons, it seems to me, certainly ones
unworthy of a wise man’s approval; for example, on the basis of rumor
alone, or denunciations, or both, when neither ought to have any
weight, as I will show below, in Questions 34 and 44ff.
reason vii. The danger is likewise increased because harsher
tortures are usually employed in this crime of witchcraft than in any
other crime, and, as I hear nowadays, many inquisitors think that
the tortures currently in use are too mild and are consequently de-
vising new ones. Nevertheless Farinacci teaches according to the
common opinion that this must not be done even in the most atro-
cious crimes, book 1, chapter 5, question 38, number 57. That is
worthy of a Phalaris or Perillus,* but not however of a Christian, as
Petrus Gregorius Tolosanus quite correctly notes, Synt., book 48,
chapter 12, number 25, and Julio Claro, book 5, Brunus, and others.
For if those methods which we have employed until now are as dan-
gerous as I have said, what will happen if we increase their savagery

* Perillus, an Athenian metalworker, made a bronze bull for Phalaris, the tyrant of
Agrigentum, in which to execute criminals by slowly roasting them. Phalaris first
tried it out on Perillus but was himself later executed in it by his unhappy
citizenry.
Hellyer text 4/14/03 12:53 PM Page 76

76 cautio criminalis
with new inventions? Yet today even ecclesiastical princes grant their
officials this.
reason viii. The danger is likewise increased, not only because
harsher tortures are usually employed in this crime, as I have said,
but because nobody has any scruples of conscience, no matter how
excessive the torture used, either in method or in duration. It is
amazing that in every other kind of crime there are judges who ac-
cuse themselves in the confessional, but in this crime there are no
judges at all who confess nor confessors who inquire, since this is
linked to an obligation toward restitution and apology. So it is clear
to me that many people have died through monstrous tortures, many
have been crippled for the rest of their lives, many so ripped and
torn that when they were to be executed the executioner did not
dare to bare their shoulders, as is customary, lest the populace be-
come enraged at such a cruel sight. Some had to be finished off on
the very road to the scaffold lest they fall dead first. Nevertheless,
there has not yet been any judge who did not bear the most peace-
ful conscience, or who felt in his conscience that he owed anyone the
slightest apology.
Now let me speak about the duration of torture. Naturally the
pain of torture is very severe if it lasts half of a quarter hour or even
half of this again. How will it be for a whole quarter hour? Or for
two? How will it be for a whole hour? Therefore in a bull which is
contained in the Bullarium, part 1, page 471, Pope Paul III prohib-
ited a suspect from being tortured for a long time, such as one hour.
Nowadays, however, the mildest judges (for it is not pleasant to talk
about the harsher ones) have so little fear of sinning against this bull
that they customarily use torture for a whole hour or two half hours.
Consequently they call any torture session that does not last that
long insufficient, as I will show below, in Question 23.
Who can bear this? Who would not prefer to die and ransom
himself from such pain with six hundred lies? If some women have
endured this time in silence without lying, there is a hidden reason
which few have thought about. But I have learned the true reason
through much experience and it should be noted. Most of these
women hold the opinion that whoever confesses to a crime as hor-
rible as witchcraft, even though innocent, sins mortally and cannot
be saved by any means. Therefore they struggle with all their might
against those intolerable pains so that they might not sin so gravely
against their souls. Nevertheless, they too finally succumb when the
Hellyer text 4/14/03 12:53 PM Page 77

question xx 77

last of their endurance is worn down. Finally, because they believe

that their eternal salvation has no doubt been lost, it is incredible to
say how great is the sorrow with which they torment themselves in
prison. They immediately give themselves over to despair if they do
not find someone to encourage and instruct them. The others, who
think that it is permitted to confess to false crimes when compelled
under torture, of course do not endure the same torments but res-
cue themselves more promptly by stating any lie against themselves.
I know what I am saying and entreat all confessors by the merciful
heart of our God to behave as spiritual men—humble, mild, wise,
and frank, such as our Lawgiver said all his people should be. They
would then perceive much of what they have hitherto been ignorant
of. Then, as happens every day with many of them now, they will
restrain their passion and begin to notice with a sharper eye that it
is not rash of me to suspect that much innocent blood is being shed
in Germany.*
reason ix. The danger is likewise increased because even though
the tortures are extremely harsh, neither the judges themselves nor
anyone else perceives their harshness. I infer this from a phrase that
they themselves use very frequently when they say that some sus-
pects have confessed without torture. For I have heard with my own
ears more than once judges, and indeed even priests, state this as
proof that the accused are without any doubt guilty. It is amazing
how far this license in speech extends. For when I then undertook to
investigate whether things really were like this, I learned that all
those women actually had been tortured, but only with a kind of wide,
iron press whose front edge is lined with sharp ridges. When it is
forcefully pushed against the shin, where sensation is very acute,
blood spurts out on both sides and their flesh is pressed like a cake,
so there is inevitably such pain that even the toughest men say it is
intolerable. Nevertheless the judges claimed that the women con-
fessed without torture. They spread it around among the common
people, and they write to their princes that they should not have any
doubts about the crime of witchcraft, since so many confessed vol-
untarily without torture. What are they who have not seen this suf-
fering to think? What are the scholars who are consulted to decide
and resolve if they do not yet understand the idioms and phrases of
the inquisitors? Where now is the teaching of all scholars of crimi-

* “Innocent blood” is a phrase used frequently in the Old Testament.

Hellyer text 4/14/03 12:53 PM Page 78

78 cautio criminalis
nal law that the fear of torture is equivalent to torture itself, and con-
sequently the latter cannot be used without grave evidence? For if
we have come to the point where torture itself is no longer torture,
what then is the fear of torture?
reason x. The danger is likewise increased because today we
employ torture against everyone without distinction. I fear that in
this we want to surpass the pagans, who once upon a time diligently
sought to whet their ferocity daily through brutal, continual wars and
savage gladiatorial spectacles. For among them, only slaves were
interrogated under torture; these hardships were for them alone. But
who were these slaves, these villains? Read the comedians Terence,
Plautus, and other poets and you will find that they were the flower
of every kind of glaring depravity, the scum of wickedness, masters
of cunning, liars, perjurers, instructed in fraud and every kind of
crime from childhood, nothing but mere slaves to rods, thongs, whips,
and clubs, trained to endure any suffering. Only against such men
whose wickedness was already known did they use harsh interroga-
tions. Because even if a mistake was made with them, it was easily
excused, for they already merited death. It was not used against those
whose toughness and wickedness were unknown, for it was feared
that they would yield too easily to the pain, even contrary to the truth.
But we, now made a little milder since Christ’s law, use torture against
those who are not yet known to be similarly wicked or tough and
accustomed to pain.
reason xi. The danger is likewise increased by the wickedness
and excessive liberty of the executioners. I would have thought that
it would behoove the judges’ integrity and conscientiousness not to
allow the executioners to mutter the slightest word but merely to
carry out what they have been ordered to do. But it seems to me that
in many places the executioners themselves are in charge and deter-
mine the method of torture as they wish. They urge, they pressure,
they demand. With their words they goad those hanging in torture,
with fierce voices they menace them with terrible threats if they do
not confess. They also intensify the torture and, indeed, intend it to
be impossible to bear. Hence the glory and preeminence of certain
executioners are measured by the fact that every single suspect broke
her silence at their hands. Such men are summoned when others fail;
they wear the laurels. Certainly even if one believed that neither their
greed for money nor their innate savagery dragged them beyond
proper limits, nevertheless they should be forbidden any freedom
Hellyer text 4/14/03 12:53 PM Page 79

question xx 79

whatsoever to act and speak because of the disrepute of their trade

alone.
reason xii. The danger is likewise increased by the lax con-
sciences of certain inquisitors and judges who preside over tortures;
indeed their sins should not be tolerated. The law solemnly forbids
them to ask someone who is being interrogated under torture for
their accomplices or accessories in crime by name. The law On In-
terrogations, 1ff. [D. 48, 18, 1, 21], states: Whoever conducts the inter-
rogation may not ask specifically whether Lucius Titius committed the
homicide, but generally who did it? For the former would seem to be more
a suggestion than a question. Thus declared the Divine Emperor Trajan.
The same caution is in the Caroline penal code, article 13, and since
right reason dictates to everyone what the law addresses here, it also
extends to excepted crimes. Nevertheless in these times there is no
shortage of people who dare to state the opposite and put in the sus-
pects’ mouths the names of those whom they should accuse. I will
include the following example: Several years ago in a certain part of
Germany where witches were being severely punished, I began to
speak by chance with an earnest man with a full, gray beard and a
respected position in his community. We came to speak about the
execution of witches and their great frequency. Because I said that I
was amazed at it, he said groaning, “God, who sees all human affairs,
knows whether all those who are punished are equally guilty. Years
ago I myself sat among the judges, but finally my conscience per-
suaded me to resign, for I could not bear their excessive cruelty, nor
could I prevent it.” To which I said, “ What cruelty?” He said, “The
cruelty they employed in their interrogations. When the accused
were hanging in torture, having already confessed themselves, they
were questioned about others. After they had persistently denied
that they knew of any others, the judge would then ask whether they
knew of Titia? Whether they had seen her at the sabbath? If a pris-
oner dared to answer that she really knew nothing bad about her,
then the judge immediately turned to the torturer and said, ‘Pull—
stretch the rack.’ Stretched, overwhelmed by pain, she exclaimed,
‘Stop, stop, I know Titia, I know her, I won’t deny it.’ Then this
denunciation was entered into the record. Next the judge would
immediately ask about Sempronia also. If the prisoner likewise ini-
tially denied knowing anything, he quickly told the torturer to pull
away and she would say that Sempronia was guilty. And so it went
on until he extracted at least three or four names from each of them,
Hellyer text 4/14/03 12:53 PM Page 80

80 cautio criminalis
no matter how much they resisted.” I did not know what to say. The
old man told me these things as if they were completely true. The
reader may now judge whether this is why we have so many witches
in Germany. He may judge how absurd and foolish it is of me to
believe that torture puts innocent people in moral and frequent dan-
ger. Woe a second time to the princes who want to proceed harshly
against witches but do not diligently oversee their judges. I had
hardly written this when a friend of mine dropped by to whom I
repeated what I had written when he asked what I was thinking
about. He looked at me and laughing quite brazenly said, “ Why
don’t you just erase the example you narrate there? There is no need
for an example of such a common, everyday matter. It is not just this
one judge of whom you speak who does this nowadays, but many.
This is common, normal practice. I myself have been present, I have
seen it, and I have heard it with my own ears. Indeed recently in one
place when the legal scholars forced an inquisitor ravaging the re-
gion not to ask for accomplices by name, nor to ask whether some-
one in a particular house or street or quarter was guilty, they cele-
brated a triumph as if they had performed the greatest service
possible for their countrymen. But in other places, where he did not
encounter any objections, he continued to rage just as you have
recounted.”
What should I say here? Woe, again, to the princes. Can he, who
ought to know all about these things, ignore them without incurring
very great guilt when I, who ought not to, do know about them? But
what do we want to do? Their counselors and confessors are silent,
they are just as ignorant of everything that happens, so they do not
prick their own consciences.
And so, as I myself then began to observe, it is the common prac-
tice of many inquisitors to put into the mouths of the accused ver-
batim, or almost verbatim, what they should answer either about
their accomplices, or the crimes they committed, or the time and
place of sabbaths, or other details. Thus when many of them all say
the same thing, they can brag wonderfully to the princes or others
that so many witches agree completely on the same points. But what
is this German blindness? Do our rulers think that without gravely
sinning they can pretend not to see the inquisitors’ wrongdoings,
which are so harmful to innocent people? However, a Church prelate
recently praised a not dissimilar method of interrogation when he
indicated that he did not disapprove of a malevolent inquisitor con-
Hellyer text 4/14/03 12:53 PM Page 81

question xx 81

tinually asking women whether they had seen any parish priests or
churchmen at their sabbaths. Truly a wonderful business! In this way
any class of person at all could in the end be put in danger through
such prompting. Then, once he had heard this, a great man answered
exceptionally well, “That prelate should be told that those women
ought to be asked whether they have also seen any Church prelates.
And as long as they deny it, they ought to be beaten until they affirm
it, etc., since they are no more likely to name a priest than a prelate
if the inquisitor does not spare his suggestions and the executioner
his rack.” Yet scholars of this kind advise the princes, and the state
has to endure their arrogance and ignorance. But a prince who re-
cently expressly forbade one of his inquisitors to ask about church-
men either in general or in particular in the way just discussed showed
more foresight. Nevertheless I feel very sorry for him because he is
unaware that from that time on the inquisitor hardly obeyed the
command. For I think that in these matters of such great moment,
the prince does not satisfy his conscience by issuing the proper order
unless he also watches to see that it is carried out. In this matter, even
if a most pious prince should assign to his secular inquisitor an eccle-
siastical man who has the authority to watch lest something reck-
lessly impinge upon his estate, of course the prince should also check
whether he is associated with the secular judge either by birth or by
his morals and cruelty, or whether he is reported to be proud or avari-
cious or ignorant, which is what I hear many shouting. Perhaps it
would be better to have hidden agents, as I said above in Question
9, Reason 8. Meanwhile I rather like an inquisitor’s ingenious dis-
covery which I recently heard about. When he began to arrest and
torture in a particular place, first of all he asked whether anyone from
the city senate had appeared at a sabbath. So of course once the lead-
ing citizens of that place were out of the way, he could then send the
rest of the herd to the slaughterhouse more easily.
reason xiii. The danger is likewise increased when not only do
the investigators involved in these trials devote their efforts to mak-
ing suggestions, but the torturers themselves are also exceptionally
successful at it. And the greater their success in this art, the less the
inquisitors know about it, if indeed they are always unaware of it.
For some torturers, when they are preparing the simpler suspects
for the torture, first instruct them on whom they can boldly name as
their accomplices. They say that so and so has been denounced three
or four times, etc., by others; that they should beware lest they are
Hellyer text 4/14/03 12:53 PM Page 82

82 cautio criminalis
evasive and refuse to denounce those whose guilt is already suffi-
ciently clear and who will not escape anyway; that if they follow his
advice, he will be merciful to them. These dangerous villains suggest
these things but also inform the prisoners of what others have con-
fessed about them, so that they learn what they should confess about
themselves, once they have been overcome by the torments. Conse-
quently, the inquisitors exult wonderfully and make a particular note
of it in the transcripts when they then confess the same things about
themselves with the same details which others have confessed about
them earlier, as if they now hold as certain a truth as possible in their
hands, since the accused could not agree so exactly with their ac-
cusers unless they were guilty. So these very intelligent men do not
notice the fraud committed by the torturers, which I myself was able
to discover without any particular effort. Thus they who boast that
they can bring this most hidden of all crimes, as they call it, to light
allow their own torturers’ wickedness to escape notice. So the princes
should learn the meaning of the phrase when the inquisitors say:
“Titia agreed of her own accord with the details of the denunciations
made against her.”
reason xiv. The danger is likewise increased because once a
single truly innocent woman overcome by the violence of her tor-
ments admits her guilt in this crime and earns the flames, it is in-
evitable that innumerable other women will be dragged into the
same sort of guilt. I will show it in this way: Innocent Gaia has lied
that she is a witch. She is immediately commanded to reveal her
accomplices. If she denies that she had any, she is not believed and
is taken away to be tortured—and if she was not able to save herself
under torture, then she will not be able to save others. For, as Paul
the Jurist says in his Sententiarum, book 1, title 12, someone who de-
spairs of his own welfare can easily put that of another in doubt.* There-
fore she will accuse those whom she does not know, and above all
those whom she remembers having heard defamed. Therefore if, as
I have seen happen more than once, a woman must enter prison and
undergo torture because of this one denunciation combined with
her disrepute, and then once subjected to pain in turn begins to name
her accomplices, who cannot see that within a very short time there

* Julius Paulus (fl. 200 ce), Sententiarum receptarum ad filium libri quinque, ap-
peared in numerous sixteenth-century editions, including several published in
Cologne. Spee incorrectly cited book 5 rather than book 1.
Hellyer text 4/14/03 12:53 PM Page 83

question xx 83

will be no end to the denouncers and denounced, especially if the

judge is cruel and follows the opinion of those authors who insist
that in excepted crimes a single or several denunciations by accom-
plices supported by no other evidence suffices for torture and even
for a conviction. When I consider this point more carefully, I have
trembled more than once at Germany’s extraordinary blindness.
The reader should also consider this, and some will have doubts
about what they should believe in this entire business of witches, and
whether they can believe anything at all. It is incredible what people
say under the compulsion of torture, and how many lies they will tell
about themselves and about others; in the end whatever the tortur-
ers want to be true, is true. Those tortured agree with everything,
and since they do not dare recant, they are all sealed for death. I
know what I am saying, and I appeal to that court which both the liv-
ing and the dead await, before which many surprising things that
now are shrouded in shadows will come to light. I pronounce from
my soul that for a long time I have not known what trust I can place
in those authors, Rémy, Binsfeld, Delrio, and others, whom I used
to admire and read avidly with intrigued curiosity, since virtually
every one of their teachings concerning witches is based on no other
foundation than fables or confessions exacted through torture. god
knows how many groans have flowed out of my heart when I have
considered the matter, very often awake even throughout the night,
but no method has appeared to me by which one could stem the tor-
rent of common opinion for even a moment, so that people could
think the matter over without prejudice and corrupted passion.
reason xv. The danger is likewise increased in that once a
woman has yielded to the pain and claims she is guilty, she has closed
off any path to safety, and there is no hope left of shaking off the
crime once it has been acknowledged. A dangerous business!
For if she corrects herself after the torture and says that the force
of her pain and not the truth loosened her tongue, then she is led in
once again for interrogation. But if she could not hold her tongue a
little earlier, then she will not be able to now, since sensitivity to
pain increases through repetition. If after this second round of tor-
ture she should correct herself again, obviously she will experience
a third. Even if those good authors Petrus Gregorius Tholosanus,
Gomezius, Lessius, Delrio, and many others cited by him in book 5,
section 9, deny that one may proceed beyond this, and at that third
retraction it is finally time to absolve her, this is not much help, pri-
Hellyer text 4/14/03 12:53 PM Page 84

84 cautio criminalis
marily because there are hardly any women to be found who would
not prefer to die rather than endure a third round of torture. More-
over there is no shortage of crueler authors who think that one may
proceed even beyond a third round in atrocious crimes, therefore
severe judges follow their opinion. But even if the condemned, once
they have finally been led to the place of execution and, about to enter
the flames, no longer have to fear torture, should boldly recant what
the pain forced them to confess, that is of absolutely no consequence
for their welfare. For the judges still condemn them and insist on the
confession they made judicially under torture, so any ultimate retrac-
tion they should make just before death is made completely in vain.
Therefore what I said remains true, namely that any hope of cor-
recting a mistake is destroyed once a woman is guilty of a slip of the
tongue under torture.
reason xvi. The danger is likewise increased if, on the con-
trary, a woman does not at all succumb to the pain and want to con-
fess, for she cannot save herself that way either and cleanse herself
of the taint of the crime. For she will be called back to be tortured
every day until she succumbs and her voice comes to her through the
force of her repeated suffering. It would be something if after stead-
fastly resisting one attack of torture, she could establish her inno-
cence. But the repetition and frequency of the racking, flogging,
burning, etc., now used everywhere destroy any hope of her ever
emerging. Indeed, either I, along with many merciful men, am com-
pletely crazy or I am really unable to see how there can be sufficient
protection for innocent people in this matter, so that countless inno-
cents have not already died and will not continue to die. Recently
when some judicial figures addressed this question in their discus-
sion, at the end a conscientious man with a penetrating mind quite
properly proposed this question to them: he asked to be taught what
the method was by which a person who was who truly innocent
could free himself, once he was put in chains. When after a long time
they could not satisfy him and he did not cease to push them, they
finally answered that they would consider it over the following
night. Behold! these men, who have already ignited so many pyres,
have conducted trials in such a way that to this day they cannot
describe an adequate method by which someone who was truly in-
nocent could rescue himself from their hands. I am now putting this
same question to Germany’s rulers. And if there should be any prince
who thinks that he has found such a method, by this alone he has
Hellyer text 4/14/03 12:53 PM Page 85

question xx 85

already shown that he does not know how things actually happen.
And if he does not know how they happen, then his salvation is in
danger, for he should know. Therefore let him read in sequence what
we have already said. Nevertheless it is not yet expedient for us to
say everything, since these are times which cannot bear it. Why then
are we amazed if everywhere is full of witches? We should be amazed
at Germany’s blindness and the stupidity of her experts. But these
men are of course accustomed to leisure and luxury and to deliber-
ate beside their furnaces. Since they cannot conceive any impression
of pain in their minds, they usually think and speak about the tor-
ture of suspects —and liberally decree it—as if a blind man were dis-
coursing about colors whose image he did not know. What Scripture
says in Amos, chapter 6, can, not incongruously, be said of them:
Drinking wine in bowls and anointed with the best oils, they are not
grieved over the ruin of Joseph [Amos 6:6]. If they themselves were
subjected to torture for even half of a quarter hour, they would at
once cast all their wisdom and pompous philosophy to the ground,
and they would not philosophize childishly about things they know
nothing about.
Thus, to conclude: I concur completely with that illustrious man,
my friend, who often says amusingly and correctly: “ Why do we so
diligently hunt for witches? Hey, judges! I will show you right now
where they are. Go and grab the Capuchins, the Jesuits and all the
other regular clergy and torture them. They’ll confess. If any should
deny it, repeat it three or four times and then they’ll confess. If
they are still obstinate, exorcise them, shave them, for they are using
magic, the devil is making them insensitive to pain—go on, they’ll
give in in the end. Then if you want a lot of witches, seize the prelates
of the Church, its canons and doctors too. They’ll confess. For how
will those miserable, delicate types hold out? But if you want still
more, I’ll torture you, and you then me. I won’t deny what you con-
fess about me and in this way we can all be sorcerers. For we of course
will be the strong and steadfast men who can hold our voices under
such severe suffering repeated daily!”
you will say that what I said concerning the repetition of tor-
ture is false, for the laws do not permit torture to be repeated unless
new and very compelling evidence is provided.
i answer, I am not speaking about what the laws allow or what
reason prescribes, but what judges practice everywhere now. Some
things are true in speculation, others occur in actual fact. I will state
Hellyer text 4/14/03 12:53 PM Page 86

86 cautio criminalis
this more clearly if we pursue the same argument more thoroughly
in a new question. Therefore it is asked:
Question XXI. Whether someone accused of witchcraft may be
tortured often?
thequestion ought to be distinguished so that these two points
can be examined:
I. Whether she who has already been tortured once and has con-
fessed, but later retracts her confession, can be tortured again?
II. Whether she who has already been tortured once but has not
confessed can be tortured again? I will speak to both questions.
i answer i. If a woman who has already been tortured once has
confessed to the crime but later retracts her confession, the judges
want to be able to put her to torture again, even if no new evidence
has arisen. The law On Interrogations, 16ff. [D. 48, 18, 16], is un-
derstood to speak in this way on the repetition of torture when it
says: The divine brothers have replied that the questioning may be re-
peated. And the reason is that, first of all, the first confession made
under torture has the status of a half-full proof and provides suffi-
cient evidence for a repetition of torture, as Wesenbeck says on this
point.* Second, the previous evidence is not refuted by such a re-
traction. Finally, if torture cannot be repeated, then this entire rem-
edy would be without any effect, as Lessius says, for no one would
ratify their confession if they thought they could not be tortured
again. And so (as Marsilius says, whose expression delights me)† the
gallows would remain widowed and crimes would remain unpun-
ished. Let us remember, however, what I warned of just a little ear-
lier, namely that we cannot go beyond a third round of torture, no
matter how heinous the deed. This is the common opinion of the ex-
perts, which you can see in Delrio, book 5, section 9, and Farinacci,
question 38, number 96, where he calls judges who torture beyond
the third time butchers. I am completely of the opinion that who-
ever is brought back to be tortured a second time but afterward
denies her confession again may not be tortured a third time but
must be released. May god forbid that I, who understands how great
the pain of torture is, should think otherwise. I truly fear that they

* A reference to Matthaeus Wesenbeck’s (1531–86) commentary on the Corpus

Juris Civilis.
† Cited from Farinacci, question 38, number 91.
Hellyer text 4/14/03 12:53 PM Page 87

question xxi 87

will all meet a pitiless judgment after death, who are so cruel and
pitiless in decreeing punishments which they would not even allow
to be inflicted upon an animal but rather would have compassion, if
they could grasp them even in their imaginations. Certainly there is
not a single German nobleman who could bear to see his hunting
dog mangled like this. Who then can bear it if a person is mutilated
so many times?
i answer ii. If a woman who has already been tortured once has
not confessed, she may not be tortured again unless new and most
compelling evidence is brought against her, as Claro, Menochio,
Gregorius, Tholosanus, Farinacci, Dinus, Albericus, Villabodius, Syl-
vester, Azor, Lessius, and other legal experts and theologians unan-
imously agree.* One can read this in the law On Interrogations, 18
ff. [D. 48, 18, 18, 1-2], where it says: The suspect accused by clearer evi-
dence may be brought back to be interrogated, especially if his spirit and body
have become hardened under torture. Note the words, by clearer evidence,
so that we should understand that stronger evidence is needed than
was necessary for the first round of torture. Therefore Delrio rightly
says, book 5, section 9, Torture is never to be repeated unless new evi-
dence of diverse kinds arises which is more incriminating than the initial
evidence and unless the accused is so strong and tough that he has borne the
earlier torture in mind and body. Thus he follows the intent of the law
exactly. And the reason is manifest, for the evidence against the ac-
cused woman, however grave, is sufficiently struck down, rendered
impotent, and destroyed by the first round of torture, so she must be
absolved just as if she had legitimately exonerated and redeemed her-
self. Indeed, it is the truer and more common opinion that by endur-
ing torture even strong proofs can be refuted, as Prosper Farinacci,
Praxis Criminalis, book 1, title 5, question 40, teaches thoroughly,
and Delrio follows in book 5, section 9, as well as Tanner and oth-
ers, in opposition to some other scholars. Therefore the accused can-
not be tortured again unless other, new evidence is brought against
her by which she is called into suspicion again, otherwise it could be
said that someone can be tortured for no reason, which is unheard
of and completely contrary to justice. That the law says this new evi-
dence for a second round of torture must be stronger than that used
for the first is fully in accordance with reason. For whenever the
accused has exactly refuted the evidence upon which he was exam-

* This list of authorities is probably taken from Tanner’s Theologia Scholastica.

Hellyer text 4/14/03 12:53 PM Page 88

88 cautio criminalis
ined and is then examined again on new evidence, it is in accordance
with nature that we generally expect it to be stronger than the first.
Since the second round of torture must necessarily be much more
severe than the first one, to which the accused brought a mind still
resolute and strength unbroken, then right reason clearly demands
that for a greater torture correspondingly greater reasons are neces-
sary. Therefore what the law says, namely that the accused can be led
back in to be interrogated, may happen, but only when he is impli-
cated by stronger arguments, that is, he may be locked up because of
new evidence that is much more compelling than the earlier. Indeed,
I should add what Farinacci teaches in book 5, question 38, number
77, following Paris de Puteo, Angelus, Marsilius, Aymon, Blanchus,
Carerius, Guido de Suzzaria, Bossus, Claro, Menochio, Franciscus
Personalis, Bertazzius, and others, that this new evidence must be
not only stronger than the earlier but of a different kind, that is, it must
differ from the earlier in sort and substance. He says, for example the
initial evidence concerned the bad reputation of the person being investi-
gated or his enmity toward the murder victim. For these reasons the accused
was tortured and confessed nothing. Afterward a witness appears who de-
poses that he saw the accused wound the victim, or that he saw him with a
drawn sword. Such things are called new evidence, which differs from the
initial in kind and substance. But if the initial evidence against the accused
was based on his reputation and supported by several witnesses, and when
tortured on this basis he held firm, the torture cannot be repeated, even if
new witnesses appear to support the same rumors, for such witnesses do not
bring new evidence but merely new support for the old evidence. Even if
this doctrine is in accordance not only with the law but also with
the most sane reason possible and must therefore be observed in all
crimes, even excepted ones, nevertheless, since many people have lax
and pitiless consciences and are little concerned with their future
judgment in the next life, things usually occur quite otherwise in
practice, as Farinacci also acknowledges, ibid., number 74, and be-
fore him Claro, book 5, question 64, and Brunus, whom he cites in
the same place and who confesses not only that he has seen it but
that he himself has done it unjustly and illegally. I will track down
the reasons for this in the following Question. Meanwhile, should any
of these kinds of judges who still enjoy a vigilant conscience perhaps
read this, it is worthwhile to seriously warn here that they cannot do
this without gravely sinning, because, as I have already said, it brings
the gravest physical harm upon one’s neighbor without cause. As
Hellyer text 4/14/03 12:53 PM Page 89

question xxi 89

there is not a single theologian who does not think that a person sins
mortally who without reason inflicts six or seven wounds on Titus’s
head and arms with a sword or club, even if the wounds are not lethal
but still cause his body great pain, then that person also sins, and
indeed more seriously, who likewise without reason inflicts such tor-
ments on this same Titus which if they lasted half of a quarter hour
would cause him pain which twenty-five wounds would not equal.
Similarly, because the theologians say that he who cuts off another’s
hand without reason sins mortally, then he who subjects another to
torture without reason sins at least as gravely, since Farinacci affirms
in question 42, number 14, that according to the common opinion
of scholars this is a more intense pain than the amputation of either
hand.
This being so, I often marvel that so many men lust after such
unmerciful tortures and when torturing they spare another’s body as
little as their own conscience. Indeed if I really liked sinning and had
made up my mind to go to hell—may god prevent it!—I would not
want to take such a unpleasant path but rather a much more enjoy-
able one.
you will say, if someone can free herself so quickly by wiping
off the rumors and evidence against her through one round of tor-
ture, then we will burn very few witches and we will not be able to
conduct trials.
i answer, I have heard these complaints so frequently that how-
ever often I admonish judges with the utmost moderation to conduct
trials with diligence and care, they always demand peace for them-
selves and silence of me with no argument other than to deny that
they could conduct trials unless they do this. Indeed I rejoice when
they utter to their advantage arguments like this which I cannot re-
fute. For I really cannot refute them. If my reader has good judg-
ment and should wish to refute them, then he can, for it seems to me
that they are saying that unless we do what is not in harmony with
reason, justice, and law, that is, unless we sin gravely and lead those
who have already cleared themselves into new tortures without any
new reasons, then we will not have any witches and we will not be
able to heap up any bonfires. But we have to heap up bonfires and
we have to have witches, so let us procure them wherever we can get
them, regardless of the law. What an excellent opinion! The obvious
conclusion is that this is what has given us our huge number of
witches, which I, along with many pious and conscientious men, did
Hellyer text 4/14/03 12:53 PM Page 90

90 cautio criminalis
not dare to speak of openly without the mark of an outlandish opin-
ion. Behold Germany, mother of so many witches, how astonishing
is it that she has cried her eyes out in sorrow, so that she cannot see
this? O the blindness of our nation! Behold, even the judges them-
selves clearly shout, if we uphold justice, if we follow reason, we will
not burn any witches. I do not know how I am to refute this conclu-
sion, for I myself grant it; I cannot answer them. So I am no longer
surprised that Tanner, a most circumspect man, when he collected
together ways of effectively extirpating witches in his commentary,
question 5, very wisely noted this one point among the others in
number 131: In order not to prolong trials excessively, they should be settled
promptly with the law upheld and those who have confessed being executed
or those who refuted the evidence under torture released. But what good
does it do to provide this advice in commentaries? The judges con-
tinue to act just as they began. They have their reasons, which will
be discussed in the following Question.
Question XXII. Why many judges hardly acquit any suspects
these days, even if they clear themselves through torture?
i answer, so far I have seldom seen an accused woman released
who cleared herself by denying her guilt in the first round of torture,
even though I should have seen it happen very often in many places.
Hardly any women are ever released once they have been taken to
the dungeon and then only most reluctantly. Yet this is supposed to
appear as zeal for justice and desire for virtue. But such excesses
should be completely absent from virtue, which usually can exercise
its force only within the boundaries that the law and reason have
established for it. Instead, matters seem to me to be like this:
first, the judges want to get by hook or by crook people whom
they can burn, as I have already said in the preceding Question. I do
not know what this blind fury is nor who bears the guilt for it, the
judges or their princes.
second, it also occurs because the judges think that they will
earn ignominy if they release suspects too easily, as if they had acted
too hastily in arresting and torturing a woman who was soon found
to be innocent. I will insert here what I saw two years ago. I was in
a place where an inquisition against witches was beginning. First of
all, Gaia was arrested because people spoke ill of her in the village.
Because of this she was tortured. Under torture, she accused Titia of
being her accomplice. This single denunciation was enough for
Hellyer text 4/14/03 12:53 PM Page 91

question xxiii 91

Titia to be arrested and put on the rack. However, she withstood the
torture and steadfastly denied she was guilty. Meanwhile Gaia was
led out to the bonfire, where, completely penitent and, in the opin-
ion of her confessor, well prepared for death, she withdrew her de-
nunciation of Titia as false and extracted through torture. She stated
that she had acted wrongly by accusing an innocent person and was
now truly prepared to seal with her own death that she knew noth-
ing bad about Titia. With those words she went to the flames. There
was then no reason why Titia, who indeed should not have been
arrested in the first place, could not be released. However, she was
not released, for what I just said stood in the way: the judicial per-
sonnel muttered among themselves that they would earn a reputa-
tion for frivolity if Titia regained her freedom. Alas, how unworthy
and unchristian a matter, so contrary to all justice!
third, when the torturer cannot extract a confession from a soft
woman, he also fears the disgrace of performing his art of torture
ineptly.
fourth, love of gain confuses matters if a bounty is placed on
the head of each person executed which the judges do not want to
see decrease. For in truth we are not all saints nor equally well en-
dowed with self-control so that a sudden flash of gold and silver does
not immediately deceive us. Thus, as I have heard and regretted
more than once, the judges seek by every means possible to make
guilty whomever they want to be so. They confine her in tight chains,
they weaken her in the squalor of the prison, they subdue her with
cold and heat, they submit her to priests of the kind I described above,
namely rash or ignorant ones, or even former beggars who now are
servants of the inquisitors, they drag her in to the torture again and
again, and finally they harass and crush her until they force her
through so much misery into making a confession, whether it be true
or false. For there is no shortage of beautiful and convenient inven-
tions to justify ordering new tortures and hiding the light of one’s
conscience for a moment, even if new evidence has not been found,
as I will now discuss. Lest the judges shame me for my excessive ten-
derness and ignorance of criminal matters, I want to take their side
for a little while and instruct the less learned on how one may accom-
plish whatever one wishes with these inventions.
Question XXIII. Under what pretext does it appear that one may
repeat torture without any new evidence?
Hellyer text 4/14/03 12:53 PM Page 92

92 cautio criminalis
i answer, there is not just one single pretext that judges with lax
consciences might use and in fact commonly do boldly use every-
where now. There are the following:
pretext i. Bartolo the Jurist, commenting on the law On In-
terrogations, 1ff., wants it to be left to the discretion of the judge
whether someone who has confessed to nothing in the initial round
of torture can be placed on the rack again. Baldus thinks the same
thing, in book 2, number 10, commenting on the last law of C. quod
metus causa. Paris de Puteo, Marsilius, Cataldus, Menochio, and
others think likewise, as Claro and Farinacci, question 38, number
87, relate.* This certainly suits the judges’ intent exceedingly well.
For they will say that they are following the opinion of Bartolo, Bal-
dus, and the other authorities cited, and they will opine that it is quite
legitimate to repeat the torture whenever they want. If you should
say that the judge’s ruling must nonetheless be in accordance with
the law, as the scholars rightly observe, they will answer that in
excepted crimes it is permitted to overstep the law. So their judg-
ment will always be very arbitrary, and none of them will ever be
brought to justice and punished, no matter how much he may exceed
the law.
pretext ii. Others teach that someone can be tortured again if
the first round was not sufficient, as Claro says, book 5, question 64.
However, what should be considered sufficient is left to the judge’s
discretion, says Delrio, book 5, section 9. Damhouder, Criminalium
Praxes, chapter 38,† and others say in many places (here the words
are those of Julio Claro from the passage cited), And in this case, when
they order that the accused be taken down from the first round of torture,
the judges usually have it recorded that they are ordering him to be taken
down with the intention of repeating it.
This also serves those lax judges very well, for whenever they
want they will say that the first round of torture was not sufficient,
since that is how they term all torture that does not wrench a con-
fession out of the accused, so this will be a general justification for
contriving lies. So let the accused be tortured; if he confesses that is
fine. If he does not confess, the torture was insufficient; have him

* Spee cites all these authorities from Farinacci and Claro.

† Joost Damhouder, Rerum Criminalium Praxes et Tractatus Omnium Nobiliorum
. . . (Frankfurt, 1587, and later editions).
Hellyer text 4/14/03 12:53 PM Page 93

question xxiii 93

tortured again tomorrow. If he does not confess then, the torture

was still insufficient; let us continue with it.
pretext iii. The pretense for repeating torture suggested by
Bartolo in commenting on the law On Interrogations, 1ff., is simi-
lar when he says that the law beginning “repeti” in the same title [D.
48, 18, 16] is to be understood and practiced so that torture cannot
be repeated if the evidence was quite weak, but it can be if the evi-
dence was very strong and pressing. And concerning Bartolo’s in-
terpretation, Farinacci says in question 38, number 79, that he has
spoken magisterially. Paris de Puteo, Marsilius Bossus, and others
cited by Farinacci follow Bartolo in opposition to Boerius, and (as he
claims Carrerius says) in opposition to the more common opinion of
the scholars. However this may be, this is a great pretense, for after-
ward each judge will add or subtract weight from his evidence how-
ever he wishes, and if he wants to repeat the torture, he will say that
his evidence is pressing and not weak at all.
pretext iv. What follows will also help, for today virtuous
judges consider that it is permitted to prolong torture in the crime
of witchcraft, it being a particularly atrocious crime, for up to an
hour or even an hour and a quarter, since Farinacci teaches this in
question 38, number 54, against the general prohibition of [Pope]
Paul III and, as it seems to me, against the law of nature or at least
Christian humanity, as I have said above in Question 20, Reason 12.
Nevertheless those mild judges think it is permitted. And in order to
use that time more fruitfully, they divide it into two or three parts
and torture on separate days.
For this is how they justify it: one may use one hour, therefore
one many cut the hour into parts. What a wonderful pretense! Nor
do they notice that even if I should grant the first part (which I never
would grant), nonetheless the consequence can only be inferred cru-
elly, for torture divided up like that is inconceivably more painful
than one continuous session. For when the body is exhausted and,
moreover, the mind weakened and terrified throughout the night by
imagining new pain on the following day, who can deny that the per-
mitted punishment has been increased extraordinarily. Such a note-
worthy excess cannot be imposed without incurring the gravest sin,
because of the reason given above in Question 21, Answer 2.
pretext v. The authority of Jacob Sprenger and Heinrich
Kramer, the authors of the Malleus Maleficarum, who were sent in
Hellyer text 4/14/03 12:53 PM Page 94

94 cautio criminalis
former times by the Apostolic See to Germany as inquisitors into
heretical depravity, will also help the preceding pretext tremen-
dously.* For these men expressly teach that a person not confessing
may be tortured frequently, though not by means of repetition but of
continuation. Their words state in part 3, question 14, page 513, If the
accused cannot be brought to terror or the truth, then he may be interro-
gated for a second or third day in a continuation of the torture, not a repe-
tition (because it may not be repeated unless new evidence arises). Then the
sentence must be read in his presence in the following manner: We, the afore-
mentioned judge, consign you, such and such, on such and such a day, to a
continuation of the questioning, so that the truth may be heard from your
own mouth. They thereby speak more loudly than clearly. Who
among these malevolent judges does not have an open door with this
to do whatever he wants? “ We are not repeating the torture,” they
say. “Far be it from us to do that without new and very strong
evidence, we will merely continue it on another day until the truth
shines bright. We know that it cannot be repeated; it is contrary to
the law and reason. We do not want to be so inhumane and cruel; we
will merely continue the torture. For we have learned that it may be
continued, and we follow authorities well versed in such matters, the-
ologians and regular clerics, discharging the public office of in-
quisitors throughout Germany.” This is how they defend themselves.
What should I say when religious men and priests can speak and jest
in this way in such a bitter matter? For this cruelty certainly seems
to me to be impiety, and I am beginning to fear, or rather have often
been afraid already, that these aforementioned inquisitors are bring-
ing the whole horde of witches to Germany with their ill-considered,
or rather, I should say, very well considered and divided up tortures.
pretext vi. There are some men who teach that if the accused
has committed so many offenses that one day is not sufficient to

* Johann Sprenger and Heinrich Kramer (Institoris) were theologians and inquisi-
tors from the Dominican order. In 1484 with the bull “Summis Desiderantes
Affectibus,” Pope Innocent VIII granted them extraordinary powers to prosecute
witches in Germany. Around 1486 Sprenger and Kramer published the Malleus
Maleficarum (The hammer of witches), which became probably the best known
witch-hunting manual, enjoying dozens of editions and reprintings until the late
seventeenth century. The first part of the Malleus argues that witchcraft is com-
mitted with the help of the devil, the second describes the various crimes of
witches and how they can be remedied, and the third part details how witches are
to be examined—through denunciations and torture—and executed.
Hellyer text 4/14/03 12:53 PM Page 95

question xxiv 95

complete the examination, then he may be tortured more than three

times. If someone has been indicted for five separate crimes and is
suspected on serious evidence, and three rounds of torture have
been used up on only three crimes, then he may be tortured as many
times as there are crimes remaining, until the examination into them
has been completed. Similarly, if the accused has been sufficiently
tortured two or three times and has confessed to the charges against
him, he may be tortured a fourth or fifth time to detect his accom-
plices, because he has not yet been tortured regarding his accom-
plices. Tanner says Delrio teaches this in book 5, appendix 2, ques-
tion 34. I cannot read that appendix in Delrio because I do not have
it. But if that is the case, what, I implore, will happen in the crime of
witchcraft where so many crimes are generally linked together? How
many paths will be opened for the judges to multiply the amount of
torture? May God forbid that this savagery happens. Finally it is
clear from what I have said that under the appearance of justice,
inquisitors have the power to repeat torture, so that there is no kind
of person who will not become completely infected with the conta-
gion of witchcraft once they suffer the first round of torture.
Question XXIV. How can a scrupulous judge, who does not dare
to torture without any new evidence, easily find some?
i answer, in the previous question I suggested some pretexts
for judges to use which are not bad if they want to repeat the torture
without any new evidence. Now, however, because more scrupulous
judges might perhaps be unable to sufficiently restrain the clamor-
ing of their consciences and are afraid of ever repeating the torture,
in particular a third, fourth, or fifth time, without new evidence, I
will help them out with three further rather pleasant discoveries by
which they might render their consciences peaceful and calm their
pangs. Very ingenious men have thought up three ways, like trea-
suries of arguments, by which they may readily obtain new evidence,
allowing them to torture the suspect again and surely condemn him
to the bonfire. These are the methods:
method i. Lead the woman who holds her tongue in the first,
second, third, or even fourth round of torture back to the prison.
Have her bound there in tight chains, in the cold and filth, and let
her reflect in solitude on her sorrows and pain (which she has brought
away from the torture as a souvenir) for some time and gradually
waste away. It matters little if she suffers through a summer and a
Hellyer text 4/14/03 12:53 PM Page 96

96 cautio criminalis
winter, since such a vacation after so many tortures is granted even
to ecclesiastical persons in some places nowadays. Meanwhile, while
you hold her there, continue to investigate and examine other witches,
arrest them and torture them. When they are no longer equal to the
torture, ask them about the first woman, whom you are still holding
in your dungeon, whether they saw her at a sabbath somewhere,
whether she taught them, whether she learned from them, or some-
thing of the kind. Certainly you will find some women out of whom
you can wring whatever you want, and who will agree on all the de-
tails that you or the torturer suggest to them as you are torturing
them, according to Question 20, Reasons 11 and 12, discussed above.
Then, however, as soon as you discover a new denunciation of this
kind against the prisoner, you will have discovered what I wanted to
teach you, namely new evidence. Accuse, threaten, press, harass, scold
her anew, and compel her either yourself or through her confessor
to admit that she is guilty after all. And if she does not give in, then
brazenly bring her in to torture again. If your conscience is still mut-
tering, do not worry, just say, “This is the procedure today.”
But if you still do not dare to do it, wait for a better opportunity.
For if you keep torturing more and more women all over the place,
then it will happen with no trouble at all that among so many one or
another will spontaneously name your prisoner when she is forced
to name some other witches, as she will have heard that the first one
has already been denounced. Therefore you now have the evidence
to torture her. This method will also serve to put back in prison
those who have perhaps already been released and have posted bail
lest they flee. For this is also the procedure today, and it is a very
beautiful discovery, so that in future no one will be unprofitably re-
leased from prison.
method ii. If you do not make any progress this way either,
then order that the woman who denounced the prisoner in the way
I just mentioned be confronted by the one she denounced. While
the denouncer is being led to the denounced, have a shameless tor-
turer threaten her with the sorts of punishments that await her un-
less she fully repeats in the presence of the denounced woman the
denunciation she made under torture. Threaten her yourself in the
same way. When they meet, charge the denounced women with
stubbornness and say that the woman who has been led in will con-
vince her to her face of her guilt and will put an end to any doubt
Hellyer text 4/14/03 12:53 PM Page 97

question xxiv 97

about it. And conversely, ask the denouncer whether she stands by
her previous confession that she saw her at the coven, etc. She of
course will be afraid that if she does not stand by it, she will be led
back to even harsher torments, and therefore she will say that she
does. But even if she only does it with a fearful voice beginning with
a sigh, moreover with her head hanging, eyes downcast, and a bear-
ing that affirms that she lied completely against her will, even if the
woman she denounced is immediately ready to defend herself and
respond, ignore it all, break off any further hearing or examination,
order the denouncer to be led away and shout at the denounced
along with your men: Now finally she has openly been proven guilty,
therefore not only can she be led back to the torture, but even if she
endures it, she may nevertheless be condemned, since she is mani-
festly obstinate and has been proven guilty to her face. For this is
how judges speak today, that is, confronted and proven guilty to her face.
Since they immediately spread it among the people and report it to
the princes, everyone, even the doctors of theology consulted about
it, applauds these most unjust proceedings as being valid, even if
they have not studied these figures of speech closely and will not
study them. O Germany, what are you doing? Why should we not
inform our rulers and warn them? Repeatedly, when my friends read
this they stand astonished and ask, “How can this happen? Is this
really their procedure?” But I will bring in sworn witnesses who
have seen this practice with their own eyes and have inscribed it in
their memories (for the judges have not inscribed it in their tran-
scripts). And what will the princes say when I have also proven that
through such confrontations women have been convicted this way
because they were still denying their guilt, and consequently were
condemned as obstinate so that they could be burned alive? And
what will the great emperor say, if he hears that in his empire even
ecclesiastical persons have perished through the same sentence? But
more on this elsewhere.
method iii. Assume this endurance under torture to be itself
new and exceedingly strong evidence. Say that such great endurance
could not occur without witchcraft, and therefore this is new evi-
dence of the crime. Therefore order the bewitched to be exorcised,
or as some advise, transfer him to another fortress to have his place
and prison changed, and then once the sorcery has been expelled
though an exorcism or change of location, see anew what the torture
Hellyer text 4/14/03 12:53 PM Page 98

98 cautio criminalis
can do. I will speak about this in more detail in the next question, so
that we may understand more clearly how some judges proceed in
this matter.
Question XXV. Whether the sorcery of silence provides new evi-
dence for new torture?
when someone resists the pain of their torments with the help
of evil arts, they call it the sorcery of silence, as is to be seen in
Sprenger’s Malleus Maleficarum, part 3, question 15, page 518, and
in Delrio, book 5, section 9. So today if a woman is tortured two or
three times yet confesses nothing, they immediately say that she is
using sorcery, that the devil is holding her tongue so that she cannot
confess. And so this in itself shows that she is guilty, and therefore
she may be exorcised and tortured again.
“Titia,” they say, “of course could not have endured two or three
rounds of such brutal torture unless she was a witch, for she could
not have done it except with diabolical or divine help.” I recently
heard these formulaic words from a priest who was still young and
ignorant, but I have heard them elsewhere more than once from
judges. Therefore it must be asked, are they correct?
i answer, not at all. These are the reasons.
reason i. In the first place I deny that Titia could not have en-
dured those two or three rounds of torture by natural means. A
human can bear many things naturally. How do the judges know that
these tortures are not among those things? Therefore, if a woman
keeps silent, they must not immediately say that she did it through
sorcery.
reason ii. Nevertheless, in order not to be too strict, I will even
concede that Titia could not have resisted these torments with her
own strength alone. Let it be so—this helps me even more, for I can
argue in this way: Titia could not have resisted the torture except
with divine or diabolical help. Doubtless then it was more severe
than could be borne naturally. However, if this is the case, then the
judges who ordered such torture were most unjust. However, if this
is the case, then the torture was most unjust and consequently, ac-
cording to every law, invalid and void. Therefore, it cannot be prej-
udicial to Titia, and no arguments against Titia can be deduced from
it. Therefore, Titia cannot be judged to be a witch from it, nor can
she be tortured anew. If she is tortured, however, she cannot be
burned alive as obstinate if she remains silent or as confessed if she
Hellyer text 4/14/03 12:53 PM Page 99

question xxv 99

confesses, since her obstinacy and her confession are null. The legal
scholars uniformly teach this; look in Farinacci, question 38, num-
ber 78, citing Gomez, Gigas, Carrerius, Bursatus, Franciscus Per-
sonalis, and others. O Great Caesar, how many die every day and
will continue to die in this way in your Germany? But you do not
bear any blame in this; you wait for complaints from petitioners, so
that you may help them all.
reason iii. I will put the same argument another way. The
judges say that so far Titia seems to be a witch and can be tortured
again, because new evidence has been found. But what is this new
evidence? That she has used sorcery to resist the previous torture.
But how do they prove this? Because the torture was such that it could
not be resisted any other way. I grant this and therefore conclude
that the judges who imposed the kind of torments that could not be
resisted except through sorcery were completely unjust. Therefore
the judges finally have their new evidence because they were com-
pletely unjust, for if they had not been they would not have it. The
new evidence against Titia rests upon the unjustness of the judges;
take this away and they have nothing new against her. Even if you
put aside their unjustness, they still have nothing, since whatever is
built upon unjust and invalid torture is equally invalid and thus void.
So it is clear how foolishly—and indeed against their own case—
these unthinking people argue.
reason iv. Granted that Titia could not have stood up to those
torments without help from the devil or from God, why do they as-
sert that she did it with the devil’s help rather than God’s? Certainly
when Titia is tortured so cruelly, she is either truly innocent of the
crime with which she is burdened, or she is truly guilty. If the first,
what is more believable than God would help an innocent person
who is being tortured so cruelly? If the latter, then it is the devil rather
than God who is helping her. But the judge must not assume that it is
the devil who has done it and that Titia really is guilty since that is
what is in question here and they do not know the answer—that
is why they are looking for new evidence in the first place.
reason v. If the fact that Titia has confessed to nothing under
the most severe torture is the judges’ new evidence for her crimes,
then the most severe tortures were imposed upon her entirely in
vain and to no purpose. For what was the purpose? So that they
might fully know whether she was guilty or not? But they knew
equally well already (if they had wanted to) that she was guilty, for
Hellyer text 4/14/03 12:53 PM Page 100

100 cautio criminalis

what they argued afterward they could have argued a little earlier:
either Titia will confess under torture that she is guilty, or she will
not. Either way, she is guilty. If she confesses, then she is guilty be-
cause she has confessed. If she does not confess, then she is also
guilty, because she has not confessed under such hideous torture. So
whether she confesses or not, she is guilty. Therefore the judges
knew perfectly well before the torture that Titia was guilty and
could have proven it if they wanted to. What do they expect to learn
from such great torments that they cannot from other knowledge or
proofs of her guilt? Therefore the most severe tortures are suffered
in vain and to no purpose, which is what was to be demonstrated
here—unless perhaps the judges’ purpose was to feast on cruelty
and barbarously mutilate a human being. Since this cannot happen,
however, without incurring the gravest guilt, what sort of an insane
desire is it to bring the wrath of God upon yourself? Where now are
the spiritual and learned men who will teach the judges not to argue
so absurdly about the sorcery of silence—as I recently heard that one
judge did who dared to think that he was a philosopher—but will
instruct them soundly and as Christians, so that they do not sin
through their ignorance and disorderly impetuosity in such a serious
matter upon which their salvation depends.
reason vi. The legal scholars say that torture is employed to
bring the truth to light. I ask, therefore, how is it possible for the
truth to come to light if the practice of the aforementioned men
prevails? The reader should consider this and explain it to me be-
cause I do not know how it can, nor does thinking about it suggest
anything to me, unless perhaps they want to say that nothing can be
the truth in this matter except for the single proposition that who-
ever is consigned to torture is already guilty. If this is the case, then
I concede that this truth can come to light through torture, however
the matter turns out and the suspect either endures it or is crushed
by it, as I have said. Otherwise, if it is also possible that a second
proposition can ever be true, namely that someone who is consigned
to torture is not guilty, then I am not able to see how in their view
this truth can ever come to light. Therefore, when Titia refuses to
confess when tortured a third and fourth time, it is by no means cor-
rect to say that she has strengthened herself through sorcery and
consequently has indicated her guilt anew, so that she may be sub-
jected to torture again after undergoing an exorcism. Rather, it is
preferable to suspect sorcery right at the outset and therefore, if
Hellyer text 4/14/03 12:53 PM Page 101

question xxvi 101

the judges want, to counteract it with an exorcism before any tor-

ture, rather than to argue so ignorantly and cruelly after it. Those
priests should be ashamed of their ignorance who carry out these
exorcisms only after they have argued so badly, and with such argu-
ments effectively contribute to the deaths of people who are unjustly
tortured and are therefore innocent according to the alleged and
proven evidence.
you will say, but if Titia feels nothing during the torture, if
she laughs, if she goes silent, if she falls asleep, if she does not
bleed when beaten, are these not sure signs of sorcery and thus new
evidence?
i answer that they certainly are not. In order to prove this we
should begin a new Question.
Question XXVI. What is usually alleged by the malicious and
ignorant to be signs of the sorcery of silence?
i answer, in addition to someone’s being able to remain silent,
they allege other things which were just mentioned at the end of the
preceding Question. These are also in part false, in part groundless.
If the authorities accept them lightly and do not examine them, then
in fact they themselves will not be without guilt. We will treat them
here in order so that the princes’ counselors and confessors may
learn them and teach their princes.
sign i. They say that some feel nothing under torture but merely
laugh. I have heard this of course, but I say that it is completely false
until they prove it, that is, until sworn witnesses affirm it. I cannot
adequately grasp this itch to lie, for they are almost all lying. I say
almost all, so that he may know that he is the exception who can swear
that he has studiously observed it to be certain and say that it is true—such
a witness I have not yet seen. So if any suspect is able to steadfastly
endure the pain in mind and body, with his teeth clenched, lips
drawn, and breath and voice sucked in, as usually happens in any
great effort to resist pain, those savage men shout, with the torturer
skillfully leading the way, that he does not feel anything, that he
senses nothing, but is laughing and mocking them with an upturned,
grinning mouth. This is the real meaning of that phrase. But woe!
What sort of cruelty is this? And they immediately spread this around
among the common people quite freely, and finally they bring it
before their completely gullible rulers themselves. I know what I am
saying and can testify to it, and if the rulers heard me then they would
Hellyer text 4/14/03 12:53 PM Page 102

102 cautio criminalis

firmly punish such false liars. But they themselves ought to fear that
God will punish them someday for not being aware of these and other
similar things.
sign ii. They say some go silent and fall asleep. But that statement
is equally trustworthy. Indeed, they can go silent, but I cannot be-
lieve that they can fall asleep, unless sworn witnesses testify to it.
Once again my opponents lie. I have endeavored to understand their
phrases; why have not the princes’ counselors, whose business this
is? Particularly since through ignorance of these kinds of things, zeal
breeds in everybody’s mind which in blind fury carries off the inno-
cent rather than the guilty. Thus I am not at all afraid to say what I
have said before, namely that I am very worried that those princes
who today are led to move against witches without any caution place
their salvation in the most immediate danger. What does it help
them if they free the entire world of weeds, as they think they are
doing, but at the same time endanger their own souls? But back to
the subject at hand.
First of all, I know that many have lost consciousness under tor-
ture. Wicked men immediately call this sleeping.
Next, I also know that others, having resolved to hold their
tongues completely, struggled for a long time with their eyes squeezed
shut with all their strength mustered against the pain. Then finally
beaten by their suffering, their effort slackened, their heads hung,
and with their eyes still closed they gave themselves up as defeated
and rested, their energy having been exhausted. But is this sleeping?
Moreover, some doctors and philosophers grant that it can nat-
urally occur that under extreme pain, especially on the rack, a per-
son can be paralyzed so that he appears to be overcome by sleep or
even dead. The poets wanted to depict this in the myth of Niobe
when they recount that she froze into stone in pain.* Our judges
want to call this sleeping and feeling nothing? I will add what I
recently heard. When he was present at the torture of a suspect, who
was hanging with his eyes closed and did not want to or was not able
to answer the questions put to him any longer, a certain chaplain
suggested a plan to the inquisitors to convince them that the pris-
oner had fallen asleep and therefore was being helped by the devil.

* Niobe turned to stone in grief after the gods Artemis and Apollo killed her six
sons and six daughters as punishment for her boasting that she had more children
than their mother Leto.
Hellyer text 4/14/03 12:53 PM Page 103

question xxvi 103

They should finish the business they were conducting, namely inter-
rogating him and encouraging him to confess, and immediately be-
gin to discuss something else among themselves, something funny,
dealing with a completely different matter. Once they had done this
and the hanging suspect noticed that the storm of questions had sud-
denly stopped and they were discussing something completely dif-
ferent, he gradually opened his eyes in order to see what this change
meant and whether he should hope for a release from his suffering.
Immediately the priest, as if he had accomplished his goal, said,
Look, now we are speaking about other things, he wakes up. When it was
a matter of saying that he was guilty, he slept. Can we doubt that this is
sorcery? This villain could not have endured the pain unless the devil
numbed his senses. Therefore we should order some exorcisms and roll the
dice again later. Truly a wonderful deed and one worthy of a priest! If
it could be done without injury to his estate, that priest should be
led off to prison immediately and be exorcised twice with a rod by
the torturer, since he is possessed by a double spirit: Ignorance and
Cruelty.
As I am writing this, something else occurs to me, which I will
note in passing. In some places the torturer is permitted to drive out
the sorcery of silence, which we are discussing here, by supplying
some kind of potion—I do not know what it is. But I do know that
the accused have complained that after they drank it, they were con-
fused, as if they were surrounded or besieged in the middle of a
crowd of spirits. If they can be forced to admit they know the evil
arts at all, then it is only after they have drunk this potion. But let us
move on.
sign iii.They say that some, when they are hanging on the rack, do
not bleed after they have been cut with the rod. Several people recently
spoke this way. But this is not true either. Once again I will deny it
until sworn witnesses testify to it or I see it myself. And when I press
them, finally I squeeze out of them that they are actually saying that
not much blood flowed. Not much, then, is none for them. I think
they were hoping for showers of blood! But even if I should grant
that no blood flowed at all, what would that mean? It can be ex-
plained naturally. Doctors I consulted say that under such critical
conditions it can happen that the blood will flee from some extrem-
ities toward the heart, so that there is none that can flow out. For
who is unaware, except the completely ignorant, that everyday expe-
rience shows that out of terror alone or a similar reason blood stands
Hellyer text 4/14/03 12:53 PM Page 104

104 cautio criminalis

still and not a drop will flow out, even if cutting a vein has made a
large opening for it.
you will say, but what if it were nevertheless well established
that somebody felt nothing under torture. Would that not be strong
evidence that he really could be considered a sorcerer?
i answer, but what if it really is not well established? Never-
theless —I will be very generous here—even if there was someone at
some time who felt nothing under torture and also accomplished
this through a magical art, I still deny that it can be used as any great
evidence that he is a sorcerer. For certain authors, whom it is not
relevant to name here, have related several methods that anyone can
use to numb the sensation of pain under torture. Therefore if some-
one has learned them from them, or has appropriated a part of
Delrio (for he also has these things), and used them—what can we
learn from that of any significance, except that he has used a forbid-
den art which gains its power from a secret pact, as all those arts
generally do? How many curious and superstitious, noble and great
people use arts of this kind everywhere for stanching the flow of
blood, for curing a fever, for uniting lovers, for preventing penetra-
tion by weapons, and similar things? Nobody says that these people
are sorcerers. It is one thing to use forbidden arts, quite another to
be a sorcerer. Therefore let us move on so that with the help of such
worthless arguments we do not loosen judges’ slack consciences
further. Or if they themselves loosen them, then certainly we can
rightly proclaim that today the torture of suspects is not free from
the greatest dangers.
Question XXVII. Whether torture is a suitable method for re-
vealing the truth?
there is no need to pose this question, for we have already ex-
amined it sufficiently and therefore we would only repeat what has
been said already. Nevertheless as long as we vary and repeat our
phrases, we can better impress the matter on our reader, and this is
our main intent. May those readers who prefer that we be more con-
cise forgive us.
i answer, I do not want to determine expressly whether torture
is an appropriate means for finding the truth or not, but rather leave
it up to the reader to infer for himself from what has been and will
be said. For I consider it to be very dangerous to decree in this mat-
ter. These are the reasons:
Hellyer text 4/14/03 12:53 PM Page 105

question xxvii 105

reason i. It is argued that it is an appropriate means because

many people prefer to tell the truth than to suffer. But conversely, it
can also be argued equally well that it is not appropriate because
many also prefer to lie than to suffer.
reason ii. There are of course two kinds of people: those from
whom you can extract the truth, and those from whom you can ex-
tract a lie. Which one have you just tortured? How do you know
which class he belongs to?
reason iii. Certainly the second of these classes seems to be
the larger, since death is gentler than torture, not only in actuality
but also in the imagination, which perceives present torture more
vividly and urgently than future death.
reason iv. But you say that he who is innocent will not easily
declare himself to be guilty. He will prefer to endure the torture and
keep silent, rather than speak and die and taint his family with an
indelible disgrace. Quite right, but on the other hand, even some-
one who is guilty will not easily declare himself to be guilty. He will
also endure torture rather than death and leaving his family dis-
graced. Therefore, either way there will be difficulty in eliciting the
truth: an innocent man will not easily accuse himself, nor a guilty
man easily destroy himself. If innocence is able to make an innocent
man steadfast, guilt can make a guilty man obstinate. Whatever nat-
ural strength provides the innocent man with to stand up to torture,
it provides exactly the same to the guilty. In fact, the more criminal
a person is, the more defiant he usually is, and therefore the inno-
cent generally succumb more quickly.
reason v. Nevertheless, you will say that it is more difficult to
believe that someone who is aware of his innocence will say that he
is guilty against the express dictates of his conscience. That argu-
ment does not amount to anything either, for one cannot defend
one’s innocence against such bitter torture and exquisite pain with-
out the exquisite and uncommon virtue that is found really in only
very few people. Something could be said here that would strike
Germany mute, but I do not yet dare [NB in margin]—I will keep
it for a more opportune moment and perhaps treat it in another
work.*
reason vi. Torture cannot be considered to be a means for rec-
ognizing the truth unless the words that pour out of the tortured

* Spee never wrote a work to explain what he was hinting at here.

Hellyer text 4/14/03 12:53 PM Page 106

106 cautio criminalis

person’s mouth can be considered the truth, but it is difficult for my
opponents to proclaim this. For what if the words are, “I am not
guilty”? Will they regard this as true? Their practice is very different
today, as I showed in the preceding Question. However this may be,
all these things are uncertain and obscure. St. Augustine lamented
elegantly, piously, and Christianly the misery of judicial torture in
The City of God, book 19, chapter 6, whose words I will write out here
because they are full of charm and precision: How is it that in his trial,
someone is tortured and when he is examined as to whether he is guilty he
is tormented, and for an uncertain crime an innocent person suffers very
certain punishment, not because it had been discovered that he had com-
mitted it, but because it was not known that he had not committed it?
Through this the judges’ ignorance is usually a calamity for the innocent.
And what is more intolerable, and must be lamented and drenched, if that
is possible, with rivers of tears is when the judge tortures the accused, lest
he execute an innocent man out of ignorance, but it happens through the
misery of ignorance that he kills a tortured yet innocent man, whom he had
tortured lest he kill an innocent man. For if the suspect has chosen the wis-
dom of those men [i.e., the philosophers against whom Augustine is
arguing] to flee from this life rather than endure torture any longer, he
says that he committed what he did not commit. For this he is damned and
executed, but the judge still does not know whether the man he executed was
innocent or guilty. Lest he ignorantly execute an innocent man he had him
tortured, so he had him tortured to learn that he was innocent yet, still igno-
rant, thereby executed him. If religious men and clergy would only con-
sider these words when they deal with suspects.
Question XXVIII. What are the arguments of those people who
immediately think that the things which the accused confess under
torture are true?
i answer, whatever the suspects confess against themselves or
others is everywhere considered to be so irrefutably true that it seems
to be impossible to ever free the ignorant common people from this
conviction. Nevertheless that does not amaze me as much as that the
most learned authors erect on this single fallacious foundation vir-
tually their entire doctrine in the matter of witches which they pro-
pound to the world and which the world seems to have embraced.
Let us see then the arguments they like, and respond to them.
argument i. It is a grave sin to lie against oneself or at least
Hellyer text 4/14/03 12:53 PM Page 107

question xxviii 107

against another in a capital crime. Therefore it is not credible that

they would make themselves out to be guilty.
i answer, this argument has always seemed feeble to me, first
of all because the best theologians deny that it is a mortal sin if
someone falsely admits to a crime that is punishable by death in
order to avoid severe torture. The reason is that a person is master
of his own reputation and does not thereby lie perniciously, since he
is not obliged to preserve his life under such torments, which are
worse than death. Therefore he is not obliged to recant his confes-
sion afterward either, since he harms no one by not recanting. See
Lessius and those whom he cites in book 2 of De Iustitia & Iure,
chapter 11, doubt 7, number 41.
Next, what Petrus Navarra, book 2, chapter 3, number 251, and
Sylvester, In Summa Verbo Detractio, question 3,* state is also proba-
ble: if anyone imputes false crimes to others because of the great vio-
lence of his torture, he does not sin mortally, at least when there is
hope of recanting later. The reason is that such a confession alone is
insufficient for conducting a trial and in itself cannot by law be prej-
udicial to the denounced person, at least if it is not ratified afterward
but instead is recanted, as it should be. On this matter, see Question
30, Number 17, below. But finally, even if it is a mortal sin to lie
against oneself and others, and whoever is tortured knew that if he
falsely denounced another, that person would definitely be executed
because of this and he would never be able to recant his lie effec-
tively, what then? Would he therefore never lie, no matter how
much he was tortured? I grant that some people at least will at first
resist the pain with all their might so that they do not commit such
a great sin by lying, but finally, however, they will raise their hands
in surrender. They will be forced to name some accomplices even
though they do not know any. So first, in order to cause less harm,
they will name people who have already been burned, or denounced
and arrested. Then once the pain increases further, they will name
some more. They will commit the gravest sin rather than endure the
gravest pain. Truly, do we humans dread sin so much that no tor-
tures can compel us to commit it? I am always amazed when I hear

* Van Oorschot reports that these two authorities are in Tanner, but Spee may well
have read Petrus Navarra himself as his citation is more accurate. Petrus Navarra,
De Ablatorum Restitutione in Foro (Leiden, 1593).
Hellyer text 4/14/03 12:53 PM Page 108

108 cautio criminalis

these things, especially from those who will voluntarily rush into any
crime whatsoever without any compulsion. Not only do we believe
this, but we see it and know that serious crimes are committed every-
where every day: pillage, theft, false testimony, banditry, murder,
adultery, oppression of the poor, devastation of the countryside, and
an infinity of similar crimes, even when no one compels people to
commit them, yet we cannot believe that homicidal denunciations
are committed when people are forced into them by intolerable tor-
tures? Therefore this argument is feeble. Incidentally I should note
here how wonderfully coherently people normally lie once they
begin to lie against themselves when overwhelmed by torture. For
once they have been taken down from the rack, they will confirm
whatever you want lest they seem not to stand by their confession.
If you ask them why they did not confess more quickly to relieve
their pain, they will say that they did not know that they were able
to speak, even if they did actually know. If you ask whether the devil
tied their tongue, they will say that he did. If you should ask whether
they saw him, whether he stood nearby, they will say that they
did see him and that he did stand nearby and whatever else you feel
like asking. For the world desires to be deceived in this way. Mean-
while prosecutors of capital crimes believe this nonsense and are
astonishingly stubborn. I, however, just laugh at their simplicity. I
could recount incredible examples here, had I not resolved not to fill
these pages pointlessly. I prefer to fight with reason rather than with
anecdotes.
argument ii. If the things that are said under torture cannot be
taken as true, then virtually all verdicts would be untrustworthy.
i answer, they may then be untrustworthy. I am not going to
deny this, but of course this is the very thing I fear, and what St.
Augustine, a man of great intelligence and consideration, in the words
cited above, said must be lamented and drenched, if that is possible, with
rivers of tears. For it is not for nothing that he did not demand a sin-
gle river of tears but several rivers. Why, I ask you, is there a need
for these rivers if the verdicts and the confessions of the guilty stand
on firm ground? And so we have not grasped what this great man
thought should be accompanied by rivers of tears. We will be freer
from blame if we rage rarely and moderately and not against every-
body indiscriminately for vain reasons.
argument iii. Experience teaches that whatever is said under
Hellyer text 4/14/03 12:53 PM Page 109

question xxviii 109

torture is true, because all the details agree. For example, Sempro-
nia says under torture that three months ago she killed Titia’s cow
with witchcraft, and two years ago Gracchus’s baby, and so on. So
the judges investigate and learn that three months ago Titia’s cow
really did drop dead and two years ago Gracchus’s baby really did
waste away, etc. What then could be clearer than the absolute truth
of what she said under torture? However, this is what happens in
most cases, therefore whatever is said under torture is true. So say
the common people, and indeed, not only the common people, but
also many skilled judges, inquisitors, and princely advisers. I have
often heard them and then stood thunderstruck, since they do not
say this as a joke for the sake of argument, as I first thought, but seri-
ously. Their minds are completely convinced, as if by an infallible
proof, that Sempronia’s confession must necessarily be true. But
i answer, it is a extremely shortsighted to think that this is
thereby firmly proven and to be satisfied at that. For consider how
the case really is. Sempronia was not ignorant of whatever was well
known throughout her entire village, even to children, namely that
at such and such a time that cow died, that child wasted away, and
anything else that happened in the village. Therefore when the pain
forces her to tell of some witchcraft, she will say that she did the
things that she knows have happened. What is so incredible about
this? Indeed, article 60 of the Caroline Criminal Code very pru-
dently notes that interrogations are to be believed only if things are
said that no innocent person could say and know. But I ask you, could no
innocent person have known the things that were known to the en-
tire village? It must be said it is the same when some simpletons
argue that the suspects are completely guilty because they recounted
and knew everything that happened at a witches’ sabbath—who
nowadays has not heard such things ad nauseam? Are not the con-
fessions of all those to be executed usually read out in public before
the judge’s chair? I am quite amazed that even judicial personnel also
sometimes reason on this basis. Therefore I will repeat the irre-
futable argument which I have put many times already: if men so
destitute of judgment and of so little foresight preside over the pub-
lic courts and the princes’ councils, who will save us from this most
prudent of all fears, namely that the innocent will be badly cared for
when affairs are conducted according to the judgment of such men?
And what will happen if zeal and passion become the comrades of
Hellyer text 4/14/03 12:53 PM Page 110

110 cautio criminalis

ignorance? You yourself will be able to see if you want that there are
many who do not lack them. For you only need to propose these
things to them a little and refute what they generally assert, and you
will see them burning up, as those who have frequently conducted
this experiment have told me. They see that their arguments are
refuted and cannot hold up, but nevertheless they carry on with
their trials regardless.
argument iv. But if Sempronia accuses Gracchus, stating that,
for example, she saw him at the witches’ dance in such a place on
such a day with such people in such clothing, etc., or that she studied
under him at such a place and time, etc., and then after he has been
arrested, Gracchus states the exact same details about himself which
Sempronia has already said, who then at least does not think that he
has grasped the truth in his hands?
i answer, indeed it is so, but I ask you, where has this happened?
Where, then? For I really would like to know. Until now I have dili-
gently searched to see if I could find one such case anywhere, but I
cannot. Princes should know that they are being tricked by their offi-
cials when they babble about these kinds of things which are com-
pletely false, or to speak more gently, are new figures of speech. So
if they should ever find something of the sort in their court records,
they should know that it happened in the following ways:
1. At the suggestion of the interrogator, about whom I have spo-
ken above in Question 20, who, following the denouncers’ confes-
sion, then tortures the person denounced on the very same points
and details (if he should not agree by coincidence), as if leading him
by the hand (as I would put it) and questioning with a pointing fin-
ger. For I myself and other men secretly put there for that purpose
have observed that this is the pinnacle of cunning and the summit of
their art.
2. If the interrogator does not suggest anything of this sort, the
torturers suggests it beforehand, as I have already said in Question
20, Reason 11. So the reader should reread it and know that I can
prove with sworn witnesses that the things I described really hap-
pened. Furthermore, what I said about the torturer must also be
said about the prison warders, who tell the prisoners everything that
others have confessed.
3. If neither the torturers nor the prison warders make any
suggestions, then it happens this way: what Sempronia said against
Hellyer text 4/14/03 12:53 PM Page 111

question xviii 111

Gracchus leaks out through court personnel and is related to him.

For these days what one criminal or the other has confessed and
whom he has denounced is not related to me by just one single per-
son, but those denounced have themselves asked me for advice after
they have heard these things said about them—whether they should
stand against them or whether they should flee. Why then is it unbe-
lievable if women arrested already know what accusations have been
made against them?
4. Recently it pleasantly happened that in a certain village some
people were tortured in a hut where boys lay by the cracks in the
door and heard everything. Who then could be ignorant of the de-
nunciations that those tortured made concerning themselves and
others, of the points and details they provided? In fact, this is the
case in many places.
5. There are other ways in which it happens that the accused
sometimes agree with their accusers on several points. The accused
themselves can explain them, but they cannot all be treated in detail
here. It is enough that the things I recounted do happen. If only the
princes would make the effort to understand them. They should at
least adequately learn what really happened when the inquisitors
shout that the people denounced agreed with their accusers on the
same points and details. For either is it false or it was done in the
manner I have said.
As a conclusion I will add in passing what happened recently. A
respectable woman ran to me from her village to get advice and to
make a general confession. She said that she had been denounced
several times, that this and that had been said about her. She did not
want to flee but to return, which I advised her to do because I did
not think that she could legally be arrested. However she was par-
ticularly worried that if she was arrested she would succumb to the
torture and condemn herself by lying. I said that whoever lies
against herself in this way does not sin mortally. Therefore she
returned to her village the following day and was immediately ar-
rested, tortured, yielded to the pain, and died well prepared for
death. Then, to reveal that she was completely guilty according to
the evidence, the inquisitor said to the priest who had led her out, a
learned and conscientious man, that she would not have been con-
demned except she agreed on that one point, namely that she had
run two or three miles out to me. For he maintained that this had
Hellyer text 4/14/03 12:53 PM Page 112

112 cautio criminalis

clearly been flight and consequently the gravest indication of guilt.
Of course he could have sent for me in order to know if that really
was the case. See how trials are conducted!
Listen, Reader, this is what I advise you: At this point you could con-
veniently read the appendix on torture, which is at the end of this
book.
Question XXIX. Whether torture should be dropped from use,
since it is clearly dangerous?
i answer, I taught above that when tearing weeds out of the
field of the state, those things which bring the moral and constant
danger of simultaneously tearing out wheat should be entirely abol-
ished. So speak natural reason, Christ our Legislator himself, and
the legitimate commentators on his words in the Catholic Church,
so it cannot be denied.
I taught moreover that torture and interrogation are adminis-
tered today in such a way that they do in fact threaten the wheat with
constant and moral danger. This is so true that I would dare to swear
that I am morally certain that it has de facto occurred very often and
much wheat has been torn out.
Once the major and minor propositions have been firmly estab-
lished, the conclusion in the correct form of the first figure* must
necessarily be inferred, that torture must therefore be dropped and its use
completely proscribed. Or at least all those things which impose the in-
evitability of this danger on torture must be corrected in detail, and other-
wise restrained. It must be one or the other.
I teach the princes that this is a matter of conscience, which not
only they themselves but also their counselors and confessors will
have to explain in the presence of the supreme judge if they neglect
it now in dissimulation and silence. I do not want them to trust me
alone—they should consult theologians, and they will find that they
cannot play with human blood and that our heads are not balls that
they can lightly and thoughtlessly toss around as they wish, as the
best princes’ less-than-best inquisitors seem to do now. They rush
to torture at the slightest gossip about suspicion, and even summon
people to an interrogation whose widely acknowledged reputation
for leading a virtuous and moral life should in itself be sufficient

* A syllogism of the first figure has the form M is P, S is M, therefore S is P, where

M is the middle term, S is the subject term, and P is the predicate.
Hellyer text 4/14/03 12:53 PM Page 113

question xxx 113

refutation of even the most serious evidence. Where nowadays is the

legal principle that the fear of torture is equivalent to torture itself?
And what about the weighty authorities who think that it is sufficient
merely to instill the fear of torture? Why do we not embrace this
view instead, and not be as cruel as possible in such a dangerous mat-
ter? However this may be, the princes should direct their will as soon
as possible to employing all their own diligence and that of their
advisers to achieving both moderation in torture and greater safety
for innocent people. The syllogism I gave is correct, the conclusion
holds; either torture must be dropped or it may only be conducted
without imposing the dangers upon innocent people already men-
tioned. It must be one or the other. Let the princes choose which one
they will adopt. We will all go before the tribunal of eternity. If it is
the law there to account for every casual word, what will it consider
to be equal to human blood? Love burns me and vexes me like an
internal fire if I do not resist those other fires with every effort, which
I fear some sinister wind will blow upon the undeserving. I have an
argument that I have kept secret until now [NB in margin] but will
reveal in its time and place, by which I have completely convinced
myself beyond any doubt that among fifty women condemned to
the bonfire there are scarcely five or even two who are guilty. Cer-
tainly should any of our rulers dare to grasp this argument in his
hands, then I will take the time and effort so that he can. For I
promised this above, in Question 11, Reason 8, but in vain.
Question XXX. Which lessons above all do we think should be
taught to witches’ confessors?
i answer, a certain Father Sempronius recently asked me, since
it seemed he would be assigned to hear the prisoners’ confessions, to
briefly instruct him in a few things that would be useful for him to
know. At first I refused his request and naturally told him my reason.
“My Sempronius,” I said, “I am convinced that whoever wants to
perform the office of confessor among prisoners nowadays in these
most perilous witch trials has the duty to intercede, not between the
suspects and the judges so that they may die, but between the sus-
pects and God so that, whether guilty or innocent, they may be saved.
The judges have their own court, the priests theirs. Either you will
make this duty yours or you will not. If the latter, I do not want to
teach anyone who does not want to embrace what must be taught. If
the former, however, no instruction is necessary; the judges will
Hellyer text 4/14/03 12:53 PM Page 114

114 cautio criminalis

remove you from that task and get themselves another priest who
will conflate the two courts. I have seen many examples of this.
Therefore there is no one whom I can instruct, since either they do
not want to use my instruction or they cannot use it.” However he
refuted my argument, since he insisted: “I will do what I recognize
to be the duty of a priest. The judges will either keep me or they will
remove me. If the former, then I can usefully employ your instruc-
tion. If the latter, then it will not be useless either, since it will prove
more firmly what you wanted to convince me of earlier, namely that
we should be afraid that many judges are unjust, since that can be
presumed if they only want ignorant men forgetful of their duty to
care for the prisoners’ consciences.” Thus the following lessons are
for the most part the ones that it is particularly useful to note, beyond
those we have already mentioned.
lesson i. When regular clergy are employed everywhere in
these trials, as I hear they now are, then their superiors must take
care to send men endowed with the spirit of Christ Our Lord: mild,
gentle, praised for their devotion, careful in judgment, and of tested
prudence in the Lord. They must have experience in the task of win-
ning the souls of men, of studying and examining the secrets of their
hearts, and of overcoming sinners; not impetuous men or slaves to
their emotions, but those weighing everything on the scales of rea-
son and doctrine. The superiors must take care also to learn through
different companions well acquainted with them whether they are judged
to conduct matters imprudently or otherwise. For superiors often
allow many things that should be corrected.
lesson ii. Confessors assigned to prisons should first of all ask
our most generous Father of Light for direction, then commend to
him the souls saved by the blood of Our Savior, and finally act with
the suspects themselves gently and paternally so that they may lead
them to a true penance, whether they are guilty or not. They should
not first of all mention to them that they should confess, but they
should defer and first offer the kind of things that can stir an impulse
toward contrition. They should explain to them with some emotion
and Christian eloquence how gentle our god is, a Father of every
mercy and consolation, who did not spare his only-born son for our
sake. He should relate the parable of that most tender father who fell
crying around the neck of his returned son who was once lost, and
however much his heart had been choked by his son’s sins earlier,
Hellyer text 4/14/03 12:53 PM Page 115

question xxx 115

freed it in complete compassion.* Also, that our god is not a god of

the gentiles who cannot lay aside his wrath. He has been seized once
and for all time by an incredible love for the human race which has
advanced too far for him to be able now to renounce the pact of his
love. That in the holy books there exists the oath of his eternal pact,
irrevocable even for him.† Because even if our sins were like scarlet,
nevertheless they would become as white as snow.‡ But his crucified,
only-born son is our advocate before him, who knows our deceits
yet wants to raise up and support our case with his advocacy, how-
ever much it may be riddled with the most grave crimes, etc.
They should try with great effort through these and similar
things to have each prisoner acknowledge his grief for his sins and
encourage him to make an sincere confession. For Our Legislator
himself cannot refuse to allow those men, whom he himself has
promised with true words to make fishers of men,§ to soften the souls
of any sinners whatsoever with the most healthful remorse: the words
and prophecies of the son of god are completely clear, and to refuse
faith in them is to be shipwrecked in faith.|| Therefore based on this
solemn promise, confessors should claim his law for themselves.
They should take possession of the ministry of reconciliation granted
to them.# They should restore by means of contrition those who have
wandered far from God through a licentious life. For in this way it
will happen that once the chains of sin are destroyed and the pris-
oners’ souls softened through conversations about holy matters,
nothing will prevent every poison pouring itself out more freely, not

* A reference to the parable of the prodigal son, Luke 15:11–32.

† The concept of a covenant between God and his people is central to the Hebrew
Bible. Jesus Christ then renews the covenant in the New Testament.
‡ Isaiah 1:18: “Come now, let us reason together, says the Lord: though your sins
are like scarlet, they shall be as white as snow . . .”
§ Matthew 4:18–19: “As [ Jesus] walked by the Sea of Galilee, he saw two broth-
ers, Simon who is called Peter and Andrew his brother, casting a net into the sea;
for they were fishermen. And he said to them, ‘Follow me, and I will make you
fishers of men.’”
|| 1 Timothy 1:19: “By rejecting conscience, certain persons have made shipwreck
of their faith.”
# 2 Corinthians 5:18: “All this is from God, who through Christ reconciled us to
himself and gave us the ministry of reconciliation.”
Hellyer text 4/14/03 12:53 PM Page 116

116 cautio criminalis

only before the priests’ tribunal of holy matters, but also before the
judges’ tribunal. For this is the nature of contrition or penitence;
once it has been received into the soul, obstinacy and taciturnity can
no longer reside there (if the prisoners are truly guilty, which must
be determined, not assumed). This is the best and most pleasant form
of torture for loosening their tongues. Those priests whom I com-
plained about above should apply their art in this court, and if they
have zeal for God, they should not urge the judges to ready their sav-
age and often too cruel tortures before they have used their own
sacred torture, that is, before they have rent the prisoners’ souls with
salutary remorse for their sins. Here they can exercise their talent
and deploy all their powers so that they may shatter stony hearts with
the power of the divine word and the passion of the spirit. For in the
end this is much more befitting of worthy and ardent priests than
inflaming the judges’ savagery through imprudent encouragement.
For to inveigh crudely against the imprisoned and the downhearted,
to harass them continually, and as if their guilt were already estab-
lished as certain, to allow them no peace, to deride them with hate-
ful names, to degrade them before the judges, and other things that
are recalled above in Question 19—there is surely not a big-mouthed
lawyer in the court who was so dim-witted that he could not do it
equally well. But to break such obstinacy through the divine power
of the word, to soften souls, to prick an impenitent heart, no one can
do this unless manifestly furnished with the spirit of God.
lesson iii. Therefore I do not approve of confessors whose first
and last goal seems to be only to get the accused to confess and hide
nothing. So they just repeat “Confess, confess.” They hardly remind
the prisoners at all about making a sincere conversion to God, about
the tremendous suffering of their souls, about detesting sin above all
else, much less do they apply the special effort and care by which
they may arouse such a difficult impulse in sinners and indeed, if
they really are guilty, sinners of such a kind at that.
As long as the prisoners have at least confessed, that is, recited
all their sins clearly and at length, then for these confessors they are
all already saved and safe. They call them sons of eternal life for they
are going to die truly penitent, however contrite they really may
be. However, I think, unless my theology fails me, that the Infinite
Majesty is not so easily conciliated, but rather there is a need for
great anxiety to join with the confession an uncommon suffering of
the soul, prayers, groans, and cries from the heart.
Hellyer text 4/14/03 12:53 PM Page 117

question xxx 117

lesson iv. Many do not think it is expedient to call the suspects

before the internal court before their case has been completed in the
external court, but argue that it should be deferred until everything
is clear in the external one, as Delrio says in book 6, chapter 1, sec-
tion 3, and is generally the regular practice.
lesson v. Nevertheless, it is expedient, as I said a little earlier,
to direct the suspects toward penance, remorse, and earnest conver-
sion to God, through visits and conversations with priests as soon as
possible. For I know that this will help not only their sacramental
confession but also their profane one, which will be obtained much
more safely and happily this way than by torture. And indeed this
remorse is completely necessary for a sacramental confession, so it
must precede it. For a confession cannot be sacramental nor of any
benefit to their salvation unless it has arisen from previous remorse.
Confession must be the daughter of remorse, or it cannot be sacra-
mental. Thus I assert once again what I have said already, namely
that the confessor should labor so that the prisoners are worn down
rather than admit the crime. For what does a confession mean if they
are not contrite? If however they are contrite, then a confession will
follow of its own accord, if they are indeed guilty.
lesson vi. Even if we embrace Delrio’s opinion, which teaches
that the judge may trap suspects through ambiguous words or some
other clever trick, we can in no way allow clergymen to do this.
The reason is, their ministry and estate would thereby be branded
with a mark which does not stick as easily to a secular judge. I know
it has happened that a certain priest ambiguously promised a suspect
reduced punishment but it did not happen. The prisoner was so upset
by this deception that he could hardly be brought to atone in a final
confession before his death.
Therefore in these matters the confessor should be wary of act-
ing in any way other than what is worthy of a faithful imitator of
Christ, so that no one can complain that he was deceived by some-
one whom he had believed to be God’s representative.
lesson vii. However it is completely disgraceful if clergymen,
as I have heard several have done, suggest methods of torture to the
judges so that they are not too mild. This is the job of the torturer,
not the priest.
lesson viii. Nor is it proper for confessors to attend the tor-
ture openly and watch, as Delrio rightly advises in book 6, chapter
1, section 3, because of the danger of irregularities, as he himself
Hellyer text 4/14/03 12:53 PM Page 118

118 cautio criminalis

says, and offense. However, I do not see why they cannot secretly
examine the proceedings from another room though a crack or an
opening. The reason is that there would be no danger of irregular-
ity or offense because no one would know.* Indeed it would be ben-
eficial because they would grasp with their own eyes how cruel and
dangerous this matter is. If the Council of Auxerre, Canon 33, pro-
hibits presbyters and deacons from standing at the Trepalium where
suspects are tortured, I think it must be interpreted as meaning that
they are forbidden to stand there openly.†
lesson ix. Indeed a prudent confessor should not completely
neglect working to learn, at least in general terms, how judicial pro-
cesses are properly conducted. The reason is partly so that with this
knowledge he can deal more prudently with the suspects in the court
of conscience, and partly so that he can remind the judges of their
duty if there seems to be the need. The inspector of a particular reli-
gious order recently advised those members of his order who visited
prisons with these exact words in an encyclical letter, which a mem-
ber of the order showed me.
lesson x. Recently I was unhappy with a confessor who fulfilled
his duty in this way: on his first visit to a woman in prison, so that he
might better induce her to confess, he announced to her that the
judges had decided she would be executed, therefore she should make
her confession. What a wonderful image of benevolence! I think that
it is disgraceful for a priest to bring someone their death sentence,
nor is this an apt way (except perhaps with clearly impenitent and
desperate people, whom other means cannot help) of properly rec-
onciling a person with God, since I have experienced that most or at
least many men, even otherwise vigorous ones, having heard their
death sentence, are so violently dismayed that they are unable to per-
form important mental functions. Therefore priests should prefer
that others announce such sad news. They themselves should offer
whatever can be of consolation.
lesson xi. The prudent confessor should work to bind the
souls of the suspects to himself as closely as possible. This will hap-
pen if he declares that he comes not as a judge but as a father who

* On irregularity, see footnote on page 72.

† “It is not permitted for the presbyter or the deacon to stand at the Trepalium
where prisoners are tortured.” Canon 33, Council of Autisiodorense (Auxerre),
578 ce.
Hellyer text 4/14/03 12:53 PM Page 119

question xxx 119

will perform the role of a comforter, in the spirit of the Son of God.
Therefore he should explain how the duty and intentions of priests
and secular judges differ—the latter are concerned with punishment
if the prisoner is guilty, the former with forgiveness; that therefore
they should not fear him, but rather completely open their soul to
him and relate whatever is troubling them; that they may deal with
him in complete confidence; that they should not distrust him or
suspect any kind of deception; that he will show them the same
affection that the most faithful father could ever have for his dearly
beloved children; that he is suffering with them and is enduring
their pain; that he is touched by an internal pain in his heart as if it
were his own trial; that if it could help them in any way he would not
hesitate to aid them with his own blood, and therefore it is painful
for him that this cannot be and he can only help their souls. And
now, he will of course seek this with every effort, and certainly he
will never desert them, but however things turn out he will be with
them to the very end. He will raise their spirits and give them hope
and strength lest they break down or are consumed by their abun-
dant sadness. Finally he will act so that they cannot complain that
they lacked any kind of consolation. For if he should offer them
these and similar things which express fidelity and apostolic spirit,
he will bind the accused to him marvelously, so they will allow them-
selves to be led wherever he wants as if by a cord or reins of love, just
as I myself have often experienced.
lesson xii. But he should render them especially certain, even
guaranteeing with the appropriate oath if necessary, that whatever
they say to him as a clergyman, even outside the confessional, not
the slightest word that is able to harm them or that they do not wish
will flow out to the judges of the external court.
lesson xiii. Rather it will help for him to have clearly stated
that whatever they discuss with him cannot harm them, even if they
are completely guilty, nor help them, even if they are completely
innocent. For he will not converse with judicial personnel in these
trials; they do not believe priests in these trials at all anyway or lis-
ten to them, but act according to their own laws and profession.
Therefore he can only intervene between the accused and God, and
whatever happens to the body, he can only effectively act so the soul
can be saved and reach the home of the saints, which, since the Son
of God purchased it once and for all time from his Father and
promised it to the penitent, can now by his law be reached by all sin-
Hellyer text 4/14/03 12:53 PM Page 120

120 cautio criminalis

ners, however deep they have sunk. So the confessor should con-
vince the prisoners that whatever they tell him in secret can help or
harm their soul alone. This will deter both those who claim to be
innocent so that their confessor will help them, as well as those who
prefer to be guilty so that they are not betrayed and put to the tor-
ture again. For
lesson xiv. I teach confessors that they must know that it is
absolutely certain that there are very many people who even in the
sacrament of confession itself admit to being guilty when they really
are not (as very often I and other scrupulous men along with me
have distinctly convinced ourselves). This is either because there are
troublesome priests whose assaults the prisoners cannot evade any
other way—concerning whom you should reread the things I said in
Question 19—or so that, as I have said, they are not put to the tor-
ture again. Thus many of the simple people think that it is fine for
priests to pass on anything to court officials, however they may hear
it, and because of this they have been sent to them to fish for infor-
mation. Nor, except with difficulty, can many prisoners be brought
around to the contrary opinion, especially since the torturers con-
vince them of it because they fear that their prey will somehow
escape them if they recant anything in the presence of the priests.
This misery should be exactly noted and young priests’ ignorance of
it is to be lamented with tears. Indeed I would not dare to damn
those who have lied in this way in the sacrament, but rather I have
recently taught that they can be excused because of their simplicity,
confusion, and similar reasons. Nevertheless, it is true that because
they do not retract the names of their accomplices, they die with
greater pain, oppressed by this urgent doubt of conscience (and the
more secret the cause of their pain, the more fervent their signs of
penance to which they attest before God). Thus it happens that the
more confidently Germany considers both those who are excep-
tionally penitent as well as those denounced by them to be guilty, the
less it consequently doubts that it is full of witches. This is such a
twisted and tangled matter that I do not know how I can sufficiently
lament it. Furthermore, since many prisoners fear being betrayed
through the sacrament itself, as I have said, why is it remarkable if
there are many who dread priests talking with them outside the
sacrament? So it is clear to me that when some otherwise prudent
men were falsely accused of witchcraft and arrested, they thought
they could not hope for any genuine consolation from the priests
Hellyer text 4/14/03 12:54 PM Page 121

question xxx 121

approaching them, partly because of that fear of which I have

spoken, partly because they saw that they were done for anyway.
Therefore out of despair and anger they scorned to speak anymore
on their own behalf. Moreover, because there was no other way to
avoid the cruelty of some of the priests, they behaved as if they were
guilty in their presence outside the confessional. When they were
asked many further things, they consequently confirmed everything
and invented whatever the fairytale demanded once it had begun.
Since those foolish clergymen spread these things around every-
where and wildly exaggerate the extent of the contagion, what else
can happen except that in this way everybody’s opinion about the
huge number of witches is confirmed once it is conceived, and no
one will ever be able to rationally doubt it in the future? It would
take up too much space to insert here examples of priests who have
been shamefully deceived and filled themselves and others with
amazing and grand inanities.
Are there really men among these religious and apostolic men
who deal frequently with suspects yet have not perceived all this but
think that they have grasped the whole truth if the suspects merely
confess their crime to them, whether truly or falsely, inside or out-
side the sacrament? Where now is that serpentine wisdom of the
Gospel?* Where is that taste of the saints by which someone’s inno-
cence can be tasted, even if the things from which it can be inferred
are absent? Where is that teaching of the Apostle, who said, for the
spiritual man judges all things, 1 Corinthians 2:15? Is this kind of grace
no longer bestowed in the Church? Woe to the confessors who dare
to commit themselves to this dangerous matter but do not devote
great thought to everything they do and repeatedly entreat God day
and night with their sighs so they might obtain the gifts of wisdom
and knowledge.
However this may be, the confessor should note these things
well. If he does not deal with prisoners in any way other than as if
clothed in the character of Christ and if he should only persuade
them to confide fully in him, then little by little he will learn amaz-
ing things which he was hitherto unaware of. Not a few priests
have thanked me because they have learned that this single path
opens their eyes up to many things, since previously they had been

* Matthew 10:16: “Behold, I send you out as sheep in the midst of wolves; so be
wise as serpents and innocent as doves.”
Hellyer text 4/14/03 12:54 PM Page 122

122 cautio criminalis

seized by some kind of passion and thought everything to be quite
otherwise.
lesson xv. However, not only should the priest make the sus-
pects certain he will remain silent, but he himself should cultivate
silence rigorously so that he does not thoughtlessly spread outside
the prison the things he discussed with them outside the confes-
sional. The visitor I cited previously also vehemently admonished
his brothers about this in his letter, and indeed he did so very pru-
dently. For these are the reasons:
I. In this way, some unwary men often brought new tortures
upon the prisoners when they only wanted to counsel them.
II. Often there is the danger of an irregularity when, through
their talkativeness or some other sign, they in effect bring about a
death sentence. For there are many judges, as I myself have noted
and Delrio also warns of, who endeavor to get some kind of sign
from the confessor which indicates the prisoners who confirmed
their judicial confession, that is, the guilty ones. Once they have se-
cretly stolen a sign from the unguarded confessor (although now
there is no need for such things to be whispered, since everywhere
foolish priests —may my words lack any insult—themselves volun-
tarily leak them as if they were full of cracks), then without any fur-
ther delay they agree on a death sentence. I recently heard a judge
boasting in this way when he said that in order to avoid erring he had
never ordered anyone be executed unless first he learned from their
confessor that they were guilty, thereby adequately acknowledging
how effectively the priests contributed to the condemnation of the
accused. I like that priest, a friend of mine, who when the judges from
time to time ask if this woman or the other has remained steadfast in
the sacrament, for that is how they put it, always answers: “If I may
say how the matter stands, I really do not know or care whether she
is steadfast or not, whether she confesses or not, whether she is guilty
or not, for whether she is this or that is not my concern but the
judges’. However what is my concern is to lead her into heaven, what-
ever she may be in the end, guilty or innocent, good or evil. I hope
that with God’s help I will be able to do this, as is my duty. Why
should I care about anything else and swing my scythe in another’s
harvest?” This is what he says, but unless he does it pleasantly and
modestly, he usually offends the judges.
III. There is the danger that a confidential secret from the sacra-
ment may sometimes be revealed, or at least appear so, which ab-
Hellyer text 4/14/03 12:54 PM Page 123

question xxx 123

solutely everyone shouts must be avoided completely. For the com-

mon people do not distinguish between what was heard inside and
outside the confession. So one is really amazed at the prudence of
that regular clergyman who recently, when he was the official con-
fessor to prisoners (I did not want to inquire about names or places),
dared to pronounce publicly from the pulpit in a great sermon to the
people that their rulers should not be afraid to act harshly against
witches, for he was completely certain that no woman who had been
led to execution in that town was free of guilt. So he spoke. I how-
ever would like to know how he could be so certain of that. Because
they had been publicly condemned by the court? But was that not
equally well known to the people, without the preacher needing to
say he was certain? He really wanted to say something beyond this
and confirm the matter with greater certitude. But where did this
greater certitude come from? Was it derived from inside or outside
the sacrament? If inside, where then was the doctrine of sacrosanct
secrecy? If outside, why did he not mention that and head off any
suspicion that a confessor would not speak with such assurance unless
he had learned something more deeply and certainly than through
the usual means. So it is related that the populace was quite scandal-
ized, since his sacrosanct title of confessor alone really irritated many
people’s good taste, and with good reason. I am not so much aston-
ished at the confessor as at the superiors of his order, who in such a
difficult matter supply such men whose lack of judgment they have
already ascertained, or should have at any rate. I learned that this
man was considered by his fellows in regard to his judgment and
capacities to be unable to progress in his studies because of his dull
mind. His listeners later found this out and told it to me. My reader
can therefore judge for himself the kind of prudence and judgment
a man who so little knew how to command public esteem devoted
to prisoners in private. But no doubt, if we do not use such men,
who with their insolence force suspects to confess once they are
finally overcome by their loathsomeness in order to ward off further
troubles —which is what they seek by hook or by crook (for this is
how it usually was with that confessor whom I just spoke of )—Ger-
many will lack men to feed the princes’ credulity about our hordes
of witches. Indeed (as I recently suggested to a particular judge that
he should test), could there be any woman so innocent, even one who
laughs at all the torments of the hangmen, whom I could not over-
come with this kind of insolence and this way of dealing with pris-
Hellyer text 4/14/03 12:54 PM Page 124

124 cautio criminalis

oners, so that she would finally state before me that she is guilty, if
that is what I wanted. May God forbid I do that. Yet the princes lis-
ten to these kinds of ignorant men and follow them, even though
another man said that it would not be difficult for him to show that
many innocent people had died in the very town where that preacher
had boasted that not a single one had. But abundant precautions have
been taken to ensure that nobody ever proves such a thing, for they
who begin to undertake the task become suspect themselves and
incur the rulers’ displeasure. This is the most ingenious of all the dis-
coveries of the sort in the world, because in this way every path is
closed off by which intelligent men might freely illuminate the most
obscure of all cases. This should be noted.
lesson xvi. One could ask, what should the confessor do if he
learns of someone’s innocence from a confession or elsewhere (which
is not impossible, as you may see in Tanner). Should he reveal it? If
he did, the danger of breaking the secrecy of the sacrament could
arise if he says nothing when hearing other prisoners’ confessions,
for by staying silent then he would thereby acknowledge that they
are not innocent like the first person was. But if this danger is absent—
for example, if he is not hearing others’ confessions, and he also
thinks that he would not be approaching the judges in vain and would
not bring new tortures upon the suspect, nor that any other trouble
would follow, such as a great outrage among the people, etc.—I think
that he not only could but must try to help. For love commands us,
as Scripture says, to Rescue those who are being led to death, and do not
cease to free those who are being dragged to ruin, Proverbs 24:11. He
must beware lest other prisoners notice that the confessor will inter-
cede on behalf of the innocent and use this opportunity to make a
sacrilegious confession, as I warned earlier, in Lesson 13. He must
also beware lest he do or say anything against the judges, whether
before or after the prisoner’s death, which defames them or disturbs
the public courts. If he hears something of significance, he should
not reveal it to others but to the judges themselves and warn them,
since the Apostle says that this truly does not dishonor apostolic men
when he says, Do you not know, since we will judge angels, how much more
worldly things? 1 Corinthians 6:3.
lesson xvii. No less could the confessor ask, what is he to do
when someone has been compelled by torture to denounce other
innocent people? This is a tangled matter. Nevertheless, this must
be said: whether a person has gravely sinned or not by imputing guilt
Hellyer text 4/14/03 12:54 PM Page 125

question xxx 125

upon innocent people once overcome by severe torture, it is none-

theless certain that he is obliged to recant it as effectively as he can.
Since, however, the judges do nothing about any retraction the con-
demned make when close to death after their sentence has been
decreed (whether correctly, they themselves will see, as you may too
below, in Question 40), a prisoner is obliged to recant in a timely
manner before sentence is passed in order for his retraction to be
effective. Even if he fears or foresees that he will be tortured again,
this is indeed in accord with the common opinion. Because when he
and his neighbor are in equal need, he must have regard for the in-
nocent person whom he harmed when he unjustly injured him with
a false accusation.
lesson xviii. However, a difficulty exists in the case if, because
of his fear of punishment, Titius cannot be induced to sing a recan-
tation when he is in such danger. Let me say what I think. For
1. First of all, what if Titius should say that he wants to make a
retraction openly before the people right before his death, when any
fear of future torture is gone? Does this not properly suffice, since
in the estimation of prudent men that sort of retraction has the
greatest weight and therefore is in itself effective? If it is the judges’
fault that it is ineffective and the people he denounced are not re-
leased, this then is to be blamed on the judges, not on him.
2. Next, what if Titius makes a timely retraction in his cell, either
verbally or in writing in the presence of his priest and a further wit-
ness? Then, afterward, when any fear of torture has disappeared, that
is, immediately before or after Titius’s death, they reveal the retrac-
tion he made with a resolute mind in the sight of God and witnesses.
Should not this at least be considered sufficient and valid? Even if
the judges still do not want to accept it, has Titius not been excused
in the sight of God? And if they still try those he denounced, are they
not wicked murderers?
3. Finally, what if I clearly show that in the end Titius did every-
thing that was in his power and everything that you could ask of him,
but no one he accused will ever be freed by any retraction? What do
you want Titius to do? To make a timely retraction before the judges
and be led back to be tortured? To steadfastly hold out against them
by persisting in his retraction, as the common opinion would have
it, and as I have said a little earlier? But this is futile. He already
knows his weakness, he knows for certain what is going to happen
now, that he will not endure the interrogation, just as he was unable
Hellyer text 4/14/03 12:54 PM Page 126

126 cautio criminalis

to endure it earlier. Therefore, once again he will yield to the pain
and reject his retraction. So he will return to where he was before,
to the same misery; indeed, those he accused are now considered to
be all the more guilty.
Let him therefore be penitent, and commend himself to God,
and retract his accusations by whatever means he can, as I have said.
If the judges pay no attention, they themselves will see what hap-
pens. It is to be sincerely regretted that when many women do not
dare to retract their denunciations out of fear of suffering repeated
torture, the judges loudly boast that the people they denounced are
most certainly guilty, since so many have died steadfast in their accusa-
tions against them. For who hearing this would not think that there is
great force in these figures of speech? Yet the force in them is suffi-
ciently clear from what I have said and will become clearer below.
lesson xix. It will, moreover, be beneficial to the prisoners’
confessors to have read this entire commentary attentively and to
have often considered what it says at some leisure in the presence of
God. I will state under oath that I have not yet led any woman to the
stake who, with all things considered, I could prudently state was guilty. I
have heard the same thing from two other conscientious theolo-
gians. And, nevertheless, I have devoted every effort to penetrating
to the truth, as I said above in Question 11, Reason 3.
I should say something that I would like whoever has ears to
hear to listen to, especially, however, the most sacred emperor, the
princes, and their advisers. Let there be deliberately fabricated the
most atrocious excepted crime [NB in margin] which the people will
seize upon as being harmful to them. Then, when the rumor has
spread, have the inquisitors arm themselves against it with the same
weapons which they now use against witchcraft. Truly, I say, if in a
little while there are fewer people guilty of this crime in Germany
than there are of witchcraft now, I will present myself to the highest
authorities and be thrown alive into the flames. Indeed, if I heard
even the most ignorant man among the people state these very words,
I really would begin to worry that he would not speak this way with-
out good reasons which were known to him. So I would at least hes-
itate and with a reflective mind think it was worthy of some consid-
eration that a rational man, who clearly had not lost his mind, dared
to speak so boldly when he was so calm.
Hellyer text 4/14/03 12:54 PM Page 127

question xxxi 127

Question XXXI. Whether it is proper for the torturer to shave

women before torture?
before I answer, I entreat the modest reader to permit me to
relate something to his ears which torturers actually do very freely
in some places without any sense of shame. When the accused is
to be brought in for questioning or torture, a disreputable torturer
first takes her to a nearby room and completely shaves not just her
head and armpits but also those parts by which she is a woman, or
singes them by applying a torch in case there are any magical charms
entangled in them which could harden her against the torture.
Therefore
i answer, it is never proper. These are the reasons.
reason i. It is a repulsive and filthy thing which Christian and
evangelical purity does not allow us to think about.
reason ii. In a base and obscene man it is linked to the danger
of sinning.
reason iii. There is the danger of deception and filthy touch-
ing by these lustful rogues, especially because a certain author, which
amazes me, raises the suspicion in several places that a magic charm
of this kind could be hidden even more secretly. Of course these dis-
reputable rogues thereby have something to allege as a pretext if they
lust to go even further.
reason iv. It is much too much for this sex, which, shy by na-
ture, not seldom prefers to die than to completely shame itself in
front of a dishonorable villain.
reason v. Furthermore this is done in vain, since other, pious
measures can be used against sorcery. Nor in our times have they
ever found in the shorn hair what they were looking for. I am stunned
that we have not yet noticed this but continue on just as blindly, and
my mind trembles to think that even priests submit themselves to the
scissors of the torturers —and indeed under princes of the Church.
reason vi. In other places where it is not the custom, certainly
no fewer pyres smoke and torture is no less effective without this
filthy prelude. So I am completely convinced that this was invented
by lustful rogues, not by virtuous judges. For if the latter had ever
thought that it was absolutely necessary for a woman to be shaved,
they would have demanded that it be administered by someone of
the same sex as the suspect being humiliated. You have an example
Hellyer text 4/14/03 12:54 PM Page 128

128 cautio criminalis

of this in Damhouder’s Criminalium Praxes, chapter 37, where he
considers it necessary that female barbers be used.
reason vii. But even this is not proper, as one single reason
alone rightly convinces us, namely that we thereby abandon the an-
cient reputation for decency peculiar to the Germans. That this sin-
gle reason is quite sufficient was shown by the authors of the Malleus
Maleficarum, who, when sent by the Pope to Germany as inquisitors
into heresy many years ago, never wanted to use the razor because
they understood that in the lands of the Alemanns (as they called
them) this practice was considered to be completely indecent, even
if they said that in other kingdoms inquisitors ordered it to be car-
ried out. It should shame us Germans if those inquisitors, who oth-
erwise were so harsh, did not dare to overturn what then was the
peculiar modesty of Alemannia, but we finally prostitute it to the lust
of these worthless scoundrels. Let judges pay attention to what I
want to say now: I heard that a woman who was to be shaved was
hurriedly raped by one of these depraved rogues, then to save time
she was shaved with a torch.
Question XXXII. For what reasons may one proceed to torture?
i answer, since torture is so dangerous and harsh, one must
above all take particular care that a trial not come to torture except
for the most serious reasons, that is, through extremely pressing evi-
dence that seems to overwhelm the accused. The legal scholars call
evidence everything from which it can be inferred that Titius, for
example, has committed a crime. We can arrange it into three cate-
gories: strong, stronger, and strongest. Let us consider what is required
for arrest, what for torture, and what for conviction.
I. For arrest, strong evidence is required. The reason is, to put
someone to no minor trouble such as imprisonment for minor rea-
sons is contrary to both justice and charity. It follows from this that
the harsher the incarceration is rendered, either because of the rank
of the person arrested or for another reason, the stronger the evi-
dence needed. In this regard people sin most gravely everywhere.
II. For condemnation, the strongest or the most pressing evi-
dence is required, clearer than the midday light, which are full proofs,
that is, they prove and satisfy in all respects so that they entirely and
legitimately convince by a demonstration the suspects themselves. If
there is such evidence, there is no need for torture, in fact it may not
be used, as is the common teaching. See Claro, book 5, question 64,
Hellyer text 4/14/03 12:54 PM Page 129

question xxxii 129

number 5, and Farinacci, question 37, number 5. This is not so much

called evidence as proof per excellentiam, as Farinacci subtly distin-
guishes in the passage cited. Nevertheless, when he distinguishes in
the same passage between evidence clearer than the midday light and
proof clearer than the midday light, he does so too subtly and with-
out reason.
III. For torture, strong evidence does not suffice, since tor-
ture is in many ways much harsher than imprisonment. However
the greatest evidence or full proofs are not required, rather what we
have called stronger evidence suffices and is required, truly firm and
clear and almost certain, so that any prudent man can validly trust it
fully, as all the authorities teach. Today it is called half-full proof; you
could better call it almost-full proof. That is, it proves in such a way
that it does not fully convince, but it approaches very closely to
being full proof, just like the moon waxes to full after passing its half.
Lessius says in chapter 29, doubt 17, number 151,* that he is himself
an author who insists on proof of this kind being almost or as if
morally certain, where nothing seems to be missing for complete
certitude except the accused person’s confession alone. The words of
the law put it this way: One should only proceed to torture slaves when the
accused is suspected and his guilt is so close to proof through other arguments
that only his slaves’ confession seems to be missing. Thus reads the law On
Interrogations, 1ff. [D. 48, 18, 1, 1]. On this see Mynsinger.† For our
reply, see Prosper Farinacci, question 37, number 3. I usually omit
further citations of the law and authors lest I annoy the reader.
Nevertheless it must also be noted that evidence permitting tor-
ture not only must be of the kind we have said, which renders a wise
man almost or virtually certain, but also must be proven fully and con-
clusively in each particular case by two legitimate witnesses, accord-
ing to the glossam singularem & ordinariam in l. final. in verbo vel
indiciis, C. familiae erciscundae, which Farinacci follows in question
37, number 13ff., and Bartolo, Baldo, Saliceto, and very many oth-
ers along with him. So this is absolutely the received opinion and is
canonical in courts and schools, as Brunor à Sole says in Cons. Crim.
nu. 111 ex Alci. in cons. 465, number 1. This of course must be up-
held even in the most atrocious crimes, as Mascardi rightly advises

* De Iustitia et Iure.
† A reference to one of the works by the Saxon jurist Joachim Mynsinger von
Frundeck (1514–88).
Hellyer text 4/14/03 12:54 PM Page 130

130 cautio criminalis

in his treatise De Probationibus, book 1, conclusion 462, number 18,
as does Farinacci in the passage already cited, and as the reader will
easily gather from what we will say below, in Question 37.*
Question XXXIII. Who is to judge whether evidence is of the
kind that can be considered an almost-full proof?
i answer, since there is no one general rule for what evidence
opens the way to torture in particular cases in this matter, that is,
what constitutes almost-full proof, there are those who want it to be
left to the decision of the individual judge. So says Bruni in his trea-
tise De Indiciis & Tortura, part 2, question 3.† But to grant a judge
such great discretion in a difficult matter seems to Mynsinger to be
dangerous in his comments on the law On Interrogations, 1, and
quite rightly so, for we well know whom we often have as judges.
Read Tanner’s Theologia, book 3, disputation 4: “On Justice,” ques-
tion 5, where at length he reveals exceptionally well how dangerous
it is to leave much to the judges’ discretion in these matters. There-
fore I would think there ought to be followed the laudable practice
of certain courts which submit this sort of evidence to examination
by one university or another and adopt its opinion and will not con-
sign anyone to the rack unless the university has decreed they be tor-
tured. This is safer in a dangerous matter to which sufficient dili-
gence can never be applied.
you will say, it would require too much effort and cost if the
universities’ ruling must be sought for any torture whatsoever and
the task of tearing these weeds out will be delayed too greatly.
i answer i. There is no need to seek a university’s ruling in
every individual case, since many cases are based on the same evi-
dence, and from a few one can judge many equally well.
i answer ii. What of it, if a trial is delayed somewhat, provided
that things turn out more safely? Do my opponents therefore prefer
to avoid delay rather than danger? It was Christ’s opinion, as was
shown above, that in order to avoid danger one must completely
abstain from tearing out weeds and not just stop and delay from time
to time. Why should we raise effort and cost as objections in such a
great matter? Can these two things be anywhere better employed
and in better conscience than when it is done to avert danger from

* All the authorities in this paragraph are probably taken from Farinacci.
† Francesco Bruni (1447–1508), Tractatus de Indiciis et Tortura (Venice, 1549).
Hellyer text 4/14/03 12:54 PM Page 131

question xxxiii 131

the bodies, lives, and reputations of innocent people? Do my oppo-

nents really just want to try, burn, and cremate regardless of whether
they do it dangerously or not? In truth I thought that it was in the
spirit of Christian law that judges should desire to find few people
guilty and rejoice when they do, rather than proceed with atrocious
and unrestricted tortures so that as few people as possible can up-
hold their innocence. God knows, if in the end this means destroy-
ing the entire world under the appearance of justice. I recently heard
an expression from an inquisitor—not however one of most hot-
headed, but one whom most people at the time said was even
tepid—which, if I might confess truthfully, I did not like at all, inas-
much as I could easily deduce from it the arguments of other, rasher
judges. For when we entered into this matter on friendly terms, he
said, “I admit that such matters ought to be treated and weighed
with deliberation, that they ought to be threshed out and debated,
that the defense and prosecution should be granted sufficient time,
and so on. But then of course we wouldn’t be able to conduct trials.
It is enough that this is the current procedure, we don’t want to deal
with such scruples.” So he acknowledged that if the inquisitors did
what they should, they would not be able to burn anyone. There-
fore, in order for them to burn people they have to make sure they
do in no way what they should do. It is as if you argued that if peo-
ple opened their eyes, they could see. Therefore, so that they are not
able to see, we must make sure that they do not open their eyes.
What a wonderful thing! And nevertheless both the inquisitors and
our highest rulers sit with the most serene consciences possible and,
with their legs stretched out, listen to their officials tell the sweetest
stories of this kind as clergymen applaud them for cleansing Ger-
many with their great zeal. If anyone should despair at this and de-
mand to be heard, and desire that the question of whether there are
as many witches everywhere as is thought be discussed more pro-
foundly according to reason and without prejudice, he is rebuffed,
suspected, and considered worthy of being sent to the rack. My
blood boils when once again I remember, and today once again I
hear named, those unjust inquisitors who, as I recounted above in
Question 9, Reason 8, dared to say that that most pious theologian
Tanner should be sent to the rack because he had written very pru-
dently about witch trials. This is one of the kinds of evidence which
for them suffice for torture. But they cannot be reproached for it,
since they will use the argument I mentioned just a little earlier.
Hellyer text 4/14/03 12:54 PM Page 132

132 cautio criminalis

They will say, “Indeed we ought not to consign such men so lightly
to torture, but if we did not do it and took care to consult first with
the universities, then they could not be promptly tried.” This argu-
ment excuses everything. Therefore, the inquisitors may do what-
ever they wish.
So who will make me an inquisitor? I would immediately in-
vestigate every ruler, church prelate, canon, and cleric in Germany.
I would easily invent some calumny. If they wanted to defend them-
selves, I would not listen to them. I would throw them in prison and
exquisitely torture them. They would yield to the pain, and I would
exclaim, “Look where the sorcerers have hidden themselves. How
occult this crime is! How secretly it crawls around!” Who will fault
me before the law for trying people badly? For I will say, “Unless I
am allowed to do it this way, I will not be able to try people promptly
and burn them. Therefore, in order for me to try people promptly
and burn them, everything is allowed.” I do not know what sort of
times we have reached. No one can help Germany except our noble
emperor. Supplicants who are burdened should approach him; he
will not turn anyone away from the altar of justice. Let him read a
list of the evidence upon which inquisitors everywhere base their
trials, and since it is completely worthless, ridiculous, unproven, and
even refuted in detail, either I am completely mistaken or he will rise
up with his mighty spirit to restrict their liberty to conduct the most
unjust of all trials. Although, I should note here in passing, who can
know what the suspects responded to the evidence brought against
them and how they refuted it, since, as I noted in Question 18, Cor-
ollary 15, this is not written down? Of course this is why the judges
avoid obtaining rulings from the universities: if they are not forced
to be more accurate in their records, no one can state that many sus-
pects adequately cleared themselves.
Question XXXIV. Whether rumor alone, unsupported by clear
and firm proof, provides sufficient evidence for torture?
i answer i. It does not. So states Julio Claro in his Senten-
tiarum, book 5, question 21, number 1, along with all the scholars,
of whom he cites not a few, but whom we shall omit as is our prac-
tice. These are the reasons:
reason i. It is an axiom of the jurists and theologians that rumor
does not prove in criminal matters but should be considered to be
the equivalent of an accuser. Therefore, since no one can be tortured
Hellyer text 4/14/03 12:54 PM Page 133

question xxxiv 133

on the basis of an accusation alone if the accuser does not offer any
proof, similarly . . .
reason ii. Rumor supplies the judge with another method for
recognizing the truth, namely through an inquisition, as Lessius says
in De Iustitia & Iure, chapter 29, doubt 17, number 156.
reason iii. Rumor is evidence that is very far removed from the
deed and so can be extremely fallacious, as we experience every day,
as Claro says in the passage cited, and Farinacci, question 47, along
with those authors they cite. Farinacci writes: The evidence for torture
must not only be likely, weighty, pressing, and probable, but also certain,
clear, etc. See Question 32 above, where we said that there must
be such evidence as renders the matter virtually indubitable and as
certain.
i answer ii. But it is true that rumor alone does not suffice for
torture, so that today even in the crime of magic it cannot suffice
when joined with other evidence unless the other evidence suffices
in itself, since a rumor today may add no weight to it. This is against
the common opinion and current practice of all judges and rulers.
But we maintain what we said, and therefore are considerably
strengthened in our opinion regarding the great multitude of inno-
cent people who have been snatched away along with the guilty.
These are the reasons:
reason i. Today almost all rumors generally arise from quar-
rels, disputes, insults, slanders, false mistrust, rash judgments, sooth-
sayers’ prophecies, jealousy, children’s derision, or similar origins and
spread far and wide through an incredible desire to gossip and cause
harm, which the coercion of punishment cannot restrain. Therefore
right reason dictates that nothing of any substance can be based on
rumors, since they are ill founded. Again and again I am amazed when
I consider how we have fallen upon the most perverse times possi-
ble. Everywhere teems with slander and insults, so if anything unfa-
vorable happens to us, we immediately accuse these or those women
of bewitching us. We run to diviners, we burden honest people with
our suspicions, we secretly spread the poison of rash judgment. The
more harmful and wicked it is, the more secretly and safely it is done
while the prince sleeps. The hissing slithers through homes and
towns, joins up with other ones, then once they have gained force
little by little they break out in an open but false rumor. Yet the ruler
does not wake up to inquire into who broadcast this pestilent odor,
but rather at the din of false voices he arms himself, seeks, arrests,
Hellyer text 4/14/03 12:54 PM Page 134

134 cautio criminalis

tortures, and by hook or by crook convicts the women whom that
evil rumor attacked. What an unworthy affair! He should investigate
those poisonous tongues and cut them out of the slanderers and liars
and nail them to the pillory. And when some of them—I will not say
a hundred (as doubtless would be fair) [NB in margin], but around
five or six—have been hung up in public, then finally on the basis of
the outcry of a reformed rumor he might be able to grasp some slight
motive for suspicion and, if some additional, well-founded evidence
also agrees with it, for conducting a trial.
reason ii. For a public rumor to have any weight as proof or to
be valid evidence, then according to right reason and the common
opinion of scholars (of whom I could cite thirty or fifty or even
more, if necessary), it must be judicially proven by two legitimate
witnesses, who at least (1) are roughly familiar with the definition of
the term “rumor”; (2) swear under oath that they have heard it from
the majority of the people in that place; and (3) that it arose from a
good origin for such and such a reason, and from virtuous men; or
at least (4) that it is well established that it did not spread from those
quarrels, insults, and similar things which we mentioned earlier. I
will omit further conditions, which Delrio has collected in book 5,
section 3. If you like, read Julio Claro and Prosper Farinacci, who
treat this issue in detail. This proposition is commonly granted, as it
must be. According to which I therefore sum up and conclude: no
rumor concerning witchcraft today has been proven in this way,
therefore no rumor today has any weight as proof. I will prove the
minor premise through two arguments, the first of which I take
from the records, the second from the judges’ own mouths.
I. The princes should order that all their inquisitors’ files be read.
Among so many convictions they will scarcely find a single rumor
that was judicially proven in this way. Delrio cites in book 5, section
3, great jurists who likewise affirm in their own times that they had
never read any rumor that was legitimately proven. For he says, It is
as Necessary as it is Rare that a rumor be exactly proven. Indeed Gram-
maticus, senator of Naples, wrote that he had never seen a trial in which
he found that a public rumor had been legitimately proven, which Julio
Claro, Vulpellus, and other great judges and lawyers affirm.
II. When I object to certain judges today and warn them that
they do not have any legitimately proven rumor or one that origi-
nated from a source of the kind the legal authorities require, and in
Hellyer text 4/14/03 12:54 PM Page 135

question xxxiv 135

fact the accused expose them and reveal where the rumor first arose,
namely out of quarrels, or the shouting of boys whom they had
scolded, since they did not want to deal with them in court, or from
similar causes, when, I say, I warn them, they usually answer that
there is no other procedure today. For if they had to examine a
rumor so thoroughly, they could never conduct any trials. So they
themselves said. Therefore from their own mouths I can reach this
conclusion: if a rumor had to be legitimately proven today, then the
judges could not conduct trials, as they themselves admit. But the
judges do try suspects, therefore the rumor has not been legitimately
proven. Look, out of their own mouths they rule against themselves.
They conduct trials on the basis of a rumor which is nothing. They
try on the basis of evidence which is unproven, contrary what we
said toward the end of Question 32. What are these trials then? How
sacrosanct are the public courts now? How do they square it with
right reason when they conduct trials on unproven and invalid evi-
dence? Unless perhaps the judges think one can correctly infer that
because they must conduct trials, then because of this what previ-
ously lacked strength begins to be valid, and because of this what
was previously unproven is now proven. This is evil, ignorant, and
ridiculous. But it is worthy of tears, not laughter, since this is a mat-
ter of human blood. One should conclude in this way: a rumor not
legitimately proven is invalid evidence, therefore if we must conduct
trials, we must not do it on the basis of unproven rumors. Not, how-
ever, this way: we must conduct trials, therefore an invalid rumor is
valid, therefore it is right to try suspects on this foundation. I ask
you, where did the rumor get its sudden strength from? See what I
will say on a similar matter below, in Question 49, Argument 11.
Therefore,
If it is true (1) that when someone is tortured on the basis of the
illegitimate evidence of rumor, and even confesses to a crime and also
confirms his confession, then this may not be prejudicial to him, as
Farinacci teaches in question 47, number 10, and question 37, num-
ber 110, following Baldus, Marsilius, Menochio, and many others.
Moreover, if it is true (2) that a judge who tortures on the basis
of insufficient evidence sins gravely, then if he condemns someone,
he is a murderer and should be held to restitution, as Lessius teaches
in chapter 29, doubt 18.
Moreover, if it is true (3) that in this matter (the words are Del-
Hellyer text 4/14/03 12:54 PM Page 136

136 cautio criminalis

rio’s) trials of witches and hags are generally conducted on the evidence
of rumor, then the administrators of today’s justice—and if they are
careless and ignorant, then the princes themselves who commission
such men should admonish them—must watch and urge that trials
be conducted in a way that allows them to stand in good conscience.
My task was to warn—I do this out of love, out of Christian duty. He
who sees that danger threatens his neighbor but says nothing, hates
him and does not love him. I can perceive something that does not
exist, I can err. Nevertheless as long as I perceive it and know that I
do not err and can hope for some result, I cannot remain silent.
you will say i. The judges do not try suspects on rumor alone,
they always have additional evidence.
i answer. If that additional evidence is such that it suffices for
torture by itself, then that is fine, I have already given this answer
above. However if it does not suffice in itself but needs to be aug-
mented by rumor, then the judges are acting unjustly, because rumor
today, as I have proven, is invalid evidence and null, since it is un-
proven. However, whatever is invalid and null cannot add any weight
to anything else.
you will say ii. There is no need to prove that a rumor of
witchcraft originated among decent men, because Binsfeld, page 619,
says this requirement is to be understood in this way when the quality of
the person and the nature of the matter and its circumstances allow it. But
when it is a question of a shameful matter, then a rumor that originated
among shameful people should not be condemned. For example, if it is a
matter of a sin committed in a brothel, then the rumor can arise among
prostitutes and pimps and not among scholars or other decent people, etc. So
he teaches, following Julio Claro, Saliceto, Bartolo, Amadeus, Pan-
ormitano, etc. But
i answer. This does not address the question here and does not
touch upon any point upon which we lay any importance. For we say
that rumors today, upon which trials have so far been based, are not
legitimately proven, wherever they may have originated. Therefore
whether a rumor originated among good men or bad, these men or
those, is what must be legitimately affirmed by witnesses, and the
causes and conjectures whence it was born, whatever they may be,
must be reported. It must at least be judicially established that it was
not born out of arguments, quarrels, calumnies, and the like, and
finally whether it arose from reputable or disreputable sources.
Therefore it still remains that if trials are conducted on the basis of
Hellyer text 4/14/03 12:54 PM Page 137

question xxxiv 137

rumors today, then they are conducted on unproven evidence and

therefore are by law null.
you will say iii. The judges say that they do not follow the
theologians alone nor pay attention to disputations proper to the
universities, but follow current practice and, among others versed in
these trials, Delrio. Just today I heard someone say this.
i answer. We should not follow the lawyers’ practice but rather
their doctrine, right reason, and laws founded on reason. However,
when judges everywhere boast that they follow Delrio and brag about
it before their princes, who therefore trust them further, all they are
doing is completely ignoring that fact that Delrio teaches in the
clearest possible words that a public rumor must be carefully proven.
Of course these judges will not escape notice; they are wicked and
are completely deceiving their princes. Consequently they deserve
to be severely punished. Finally, it must still be disputed whether
princes, inquisitors, or both, should be held to restitution for trials
that I could prove were unjust from this point and from several oth-
ers, if the records were made available to me. I hear many things that
I judge are not suitable for inclusion in this commentary. Indeed the
princes can say that they have been deceived, but I greatly doubt
whether the shepherds of the people (as Homer calls princes)* could
be deceived without incurring any blame when the deception is not
hidden from those they are guarding. The greater a ruler is, the
greater the care he must have for his subjects and the more earnestly
he must deliver a reckoning. Even princes could say that they are
unable to know and properly watch over everything, that they have
officials and counselors for this purpose, and that they follow them
and entrust their concern to them. But I would say that princes have
so many officials and counselors in order that they may be less igno-
rant of their affairs which they ought to know well and to increase
their prudence and their care in ruling over their subjects. There-
fore, if they are nevertheless ignorant of what they ought to know
and do not have as perfect a system of public courts as possible,
despite having increased prudence and increased means for ruling
properly and carefully, then it is all the less excusable that men sup-
ported by greater assistance pay less attention. This is addressed to
those who are negligent, I do not know who they might be. It is the
duty of clergymen to terrify even the kings themselves with their

* Odyssey, 17.109.
Hellyer text 4/14/03 12:54 PM Page 138

138 cautio criminalis

barking and to wake them from their sleep when there is danger in
the night.* Meanwhile, according to what was said above, these
propositions are true and are considered by all to be so:
1. It is necessary for evidence based on rumor to be legitimately proven.
2. Throughout the German empire witch trials are conducted on evidence
based on rumor. 3. Hardly any or indeed no rumor at all can be found in
these trials that was ever legitimately proven. 4. If rumors are to be legit-
imately proven then the judges cannot conduct trials. 5. No one dares to
rebuke the public courts; we are to think that everything is done legally,
that whoever is declared to be a witch really is a witch, and whoever dares
to contradict them offends and makes himself suspect.
What are we to do? What consequences can we deduce from
these propositions? I beg my reader to think about it.
Question XXXV. Whether rulers are obliged at the present time
to arm themselves of their own accord against slanderers and libel-
ers even if no one urges them to?
i answer, rulers or princes are obliged, now if ever, to restrain
with very severe punishments those poisonous tongues which have
ever brought any accusation whatsoever against neighbors and
aroused suspicions about the crime of witchcraft, even if no one
urges them to. They must protect public opinion for their subjects
just like a common air completely cleansed of the freedom to slan-
der. These are the reasons:
reason i. Everywhere slanders and calumnies grow far too
strong, and Christian charity is harmed to the greatest degree imag-
inable. Because of this, I have heard men say that they would prefer,
at a time when rumors are not corrected and trials are conducted on
this basis, to live among the Turks, provided they could remain Chris-
tians. That actually seemed to me to be a little discordant, as if they
were indirectly insulting our rulers, so I restrained them. Neverthe-
less that is what they said. I will insert here what happened recently.
A certain city treasurer was summoned before his city council for dis-
honesty and had to pay compensation. Since he was so offended, he
could not restrain his anger in any way other than by leaving his home
and defaming his countrymen as a crowd of witches. Finally, through
underhanded means, he managed to be sent back there as an inquisi-

* Isaiah 56:10: “His watchmen are blind, they are all without knowledge; they are
all dumb dogs, they cannot bark; dreaming, lying down, loving to slumber.”
Hellyer text 4/14/03 12:54 PM Page 139

question xxxv 139

tor appointed by the prince. Today there is no better way of aveng-

ing oneself.
reason ii. The ruler investigates witches of his own accord,
therefore he should also investigate of his own accord those who
with their pestilent hissing have until now blown the suspicion of
this crime upon whomever they wish to harm with impunity.
reason iii. The ruler investigates on the basis of rumor. He
thinks that this alone opens the way not only to arrest but also to
torture, as I have often seen, however much he may say that this
should not happen. Therefore he is obliged either to ensure that he
removes from the community those poisonous tongues which just
exhale pure plague, fumes, and lies into the public opinion, or to
concede that the bulk of his trials are supported by nothing more
than mendacious winds.
reason iv. The ruler is obliged to remove everything from his
witch trials which renders them perilous, according to those ques-
tions we discussed above. But if public opinion is not protected
against slanderers, it makes those trials very perilous. Therefore he
is obliged to protect it of his own accord.
reason v. If the ruler does not look after this matter conscien-
tiously, there is no other way to look after it. One way would be for
preachers and clergymen to raise against poisoned tongues the sword
of the spirit, which is the word of god. But now our times are such
that if these plagues are to be cut out, there is need for god to say,
as he once did, begin at my sanctuary, Ezekiel 9:6. Often spiritual men
and clerics precede the slanderers and mutterers with tongues just as
careless as those they ought to be restraining. It pains my heart when
I have to listen to many men, including regular clergy, who are noto-
rious among their own brothers and outsiders for their credulity and
garrulity, who blather without any coherence and judgment, make
unbelievable fools of themselves and ascribe everything that happens
to spells. First they shout that there is no doubt that these things
came about through witches, that this plague is spreading far and
wide, so they themselves encourage the suspicions they ought to be
suppressing with every possible means. Then so that it does not seem
that they cannot understand or do anything, they read exorcisms,
purify,* and give out holy amulets —among them there are certain

* Lustro means to purge or purify by sacrifice, but the deponent form, lustror,
means to frequent brothels, perhaps an intentional pun by Spee.
Hellyer text 4/14/03 12:54 PM Page 140

140 cautio criminalis

things, I do not know whether superstitious, but certainly foreign to
the common usage of the Church, as I recently observed. They boast
from house to house how malign and contagious witches are, they
constantly chatter their tales and fables. If something that occurred
naturally then passes away naturally, they triumph with their exor-
cisms and amulets and arouse the admiration of the common peo-
ple, but the laughter of the wise at least, who can hardly bear to see
this old wifely itch to slander and chatter in clergymen. How, then,
can one hope that they will correct others when they themselves need
correction more than anyone else? I recently heard a certain preacher
(since there are not a few fools in that group) carefully relate how
secretly witchcraft slithers around, how varied its ways of causing
harm are, and so on. He thereby filled the entire city with these fan-
tasies and fables to such a degree that every person and thing was
suspect, which caused incredible confusion for all and rent love and
human fellowship.
reason vi. There are many impoverished, abject, weak-minded
women who, through either lack of money, lack of concern for their
reputation, or simplemindedness, abstain from bringing charges
when they are slandered and prefer to bear the insult rather than be
involved in litigation. If children laugh at them and shout that they
are witches, who is going to fight against children in court? Their
parents will also be aroused and finally quarrels will erupt. Everyone
will shout that at that age the children should be forgiven, but nev-
ertheless a stain will stick to the women which will grow up along
with the children into a widespread rumor. So the ruler should
counteract them of his own accord. He should issue decrees estab-
lishing severe punishments for slanderers and libelers and track
them with secret officials. He should impose on those who are
caught the punishment established by law without delay and further
deceit.
reason vii. If people are virtuous and concerned for their rep-
utation and, therefore, bring a lawsuit against their slanderer when
they have been defamed by calumnies, they still will never be able to
adequately cleanse themselves. For even if someone is vindicated in
court, a calumny aired publicly in a courtroom spreads further than
one covered up in silence. Consequently, should anything occur later,
whatever it may be, which can be interpreted to any extent in a sin-
ister way, anyone can immediately twist it around so that he judges
silently to himself, yes, he may have been absolved by the court, but
Hellyer text 4/14/03 12:54 PM Page 141

question xxxvi 141

that rumor did not spread for nothing. Something always remains;
once heard, a calumny cannot be removed from the people’s mem-
ory, but a rash suspicion will burst forth at the slightest opportunity,
and those worthless men whose services some inquisitors use in seek-
ing disreputable people will count those slandered to be among the
disreputable. For the people remember who has been defamed by
slander at some earlier time—that they were absolved, however, is
easily forgotten or is attributed to the favor and corruption of the
judge. There are examples of this every day. Meanwhile the people
who are arrested and tortured, when they are forced to denounce
someone, more readily denounce those who have already been de-
famed. So these are the most miserable times, for either you suffer
the calumny flung at you in silence, and because you remained silent
and did not dare to contradict it you begin to be guilty, or you do not
stay silent and you initiate a lawsuit, and thereby expose yourself even
further to everybody’s judgment and opinion. Therefore, what I said
at the beginning of this chapter is necessary, namely that by estab-
lishing punishments the ruler counteract of his own accord the slan-
der and defamation of his citizens before they occur. If not, then the
freedom to slander will continue on just as it has until now, and it
will be impossible for anyone to defend his innocence.
Question XXXVI. Whether a legitimately proven rumor alone is
sufficient for torture, at least when the crimes are excepted and dif-
ficult to prove?
many legal scholars and judges think so. For when Julio Claro,
following the common opinion, denies that rumor alone is sufficient
for torture, he adds an exception at the end in this way: It could also
be an offense so difficult to prove that rumor alone would suffice, as I have
seen on occasion. Farinacci follows Claro in question 47, number 11,
as does Menochio, De Praesumptionibus, book 1, question 89, num-
ber 34. Binsfeld also says in De Confessionibus Maleficorum, p. 288, the
judge must proceed more promptly and easily to torture in enormous and
secret crimes because what occurs in secret can be difficult to prove.
For this reason he adds that it results in this juridical proposition: In
clandestine and secret crimes, proofs through conjecture, which otherwise
would not suffice, do suffice because of the difficulty of the matter. Finally
he infers for the crime of witchcraft: From these reasons and others, who
can doubt that the witches’ crime can be investigated with torture on much
lighter arguments because it is the most secret of all crimes? From this he
Hellyer text 4/14/03 12:54 PM Page 142

142 cautio criminalis

seems to conclude that although disreputable witnesses should nor-
mally be rejected, nevertheless one may occasionally be admitted when the
truth could not be known otherwise, as Lessius and others claim. Fur-
thermore it seems that it was Marsilius’s opinions on the law On In-
terrogations, 1ff. [D. 48, 18, 1ff.], that in the most atrocious crimes
a suspect could be tortured on the basis of slight evidence; and Meno-
chio expressly holds it in De Arbitrariis, book 1, question 84, at the
end of number 9, and likewise Monticella in his Regula Crim. 10,
number 36, and Mascardi, De Probationibus, book 3, conclusion 1385,
number 13ff.* Their reason is, because in the most atrocious crimes one
may transgress the law and not employ the requisite procedures, and the
rule here is not to uphold the rule. They have stated this at considerable
length, but it seems that these things ought to be better examined.
And so
i answer, however atrocious, excepted, secret, and difficult to
prove these crimes may be, nevertheless neither rumor nor any other
slight evidence that does not constitute an almost-full or as-if-full
proof ever suffices for torture. Therefore we distance ourselves from
all who assert the contrary, and we reject the juridical proposition
which Binsfeld employs as being inconsistent with right reason.
These are the reasons:
reason i. The law On Interrogations, 1ff., says that it may only
come to torture when through several arguments the suspect’s guilt ap-
proaches so close to proof (that is, a full proof ) that only his confession
appears to be missing. However the law speaks generally, making no
distinction between crimes. However where the law does not distin-
guish, we must not distinguish either unless something forces us to.
But if the arguments that implicate the suspect do not constitute at
least an almost-full proof, then his guilt cannot really be said to
approach full proof, since this implies closeness, just as we do not say
that the moon approaches fullness when it is still a slight crescent,
but only once it has gone at least past the half.
reason ii. The same law requires his guilt to approach a full
proof so closely that nothing else seems to be missing except his con-
fession alone. But if the proof was not almost-full before torture, it
clearly seems that more is missing than just the confession alone. The
very thing itself which is necessary for almost-full proof will be miss-
ing. Therefore . . . The judges have the law; what more do they want?

* Spee is taking these citations from Farinacci.

Hellyer text 4/14/03 12:54 PM Page 143

question xxxvi 143

reason iii. Many scholars, whose names, as is my custom, I

shall omit, lest I fill my pages with citations unnecessarily, hold the
same opinion as the law. Delrio, whom I expressly name for the rea-
son that many judges boast today that they are following him, even
if they do it falsely, agrees with them. Thus he speaks with these
clear words in book 5, section 3, where he says, scholars who think that
in order to torture a vile person, or to torture in offenses that are difficult
to prove, no other evidence is needed than a bad reputation for that kind
of offense are much too cruel and are not in full agreement with the law
when they assert this. Farinacci rightly reproaches them for this. Therefore
I think that even in cases of witchcraft, a judge who has embraced such cru-
elty is not to be forgiven.
reason iv. Along with the law and the authorities who agree
with us, right reason teaches the same thing. For when torture is not
only harsh beyond all measure but dangerous, one must not proceed
to it except on the most compelling evidence. However such evi-
dence is not the kind that proves less than almost-fully.
reason v. Moreover the reason I just gave for why we require
at least an almost-full proof for torture, namely the severity and dan-
ger of torture, does not cease or diminish even if the crime is atro-
cious or secret or hard to prove, for there is no less severe or dan-
gerous torture for such a crime than for other crimes. Therefore
even in such crimes no less than in others, at least an almost-full
proof is required for torture. For the same cause works in the same
way, according to the philosophers. Therefore whatever happens
otherwise, happens contrary to reason, and therefore the men cited
above who claim that in excepted cases it is permitted to exceed the
law spread their opinion in vain. For even if we should concede just
for the moment (although it would be false, as we have said else-
where) that one may rush beyond the boundaries of the law, never-
theless one may not therefore rush beyond the boundaries of right
reason.
reason vi. It is far from being the case that in atrocious, secret,
and difficult to prove crimes lesser proofs are sufficient than in other
crimes; according to the precepts of right reason, which rest upon
the explanation I provided already, stronger proofs are required.
This will become more evident in the following Question, for I
would like to consider the same argument further in a new Question
as if with a second wind.
reason vii. Nor can it be said that when rumor is not pressing
Hellyer text 4/14/03 12:54 PM Page 144

144 cautio criminalis

or almost-full evidence in other crimes, it is rendered pressing and
almost-full evidence in excepted and secret crimes and acquires a
strength that it did not have before. For rumor does not draw its
power to prove from its subject matter but appropriates it from its
own nature, as all lawyers who have ever paid any attention to phi-
losophy should easily understand. Therefore since the nature of
rumor does not change in excepted and secret crimes, it will not be
an almost-full proof in such crimes if it is not in other crimes.
reason viii. Now if you should seek the reason why rumor alone
is not considered to suffice as an as-if-full proof of a crime in other
offenses, Julio Claro and others will say because rumor is evidence which
is very remote from the crime and deceptive, as we saw above. But I ask
you, is not the rumor of an excepted, secret, and difficult to prove
crime also remote and deceptive evidence? For if it is remote from a
crime that is not hidden, it will indeed be all the more remote from
a crime that has removed itself from human perception, whence the
rumor is supposed to arise. Similarly if it is deceptive in a common
crime, why should it not be deceptive in an atrocious and hidden
crime? Or why should it at least be less deceptive there? For it cer-
tainly seems to me at least, the more difficult a crime is to detect, the
more easily we may be deceived, and not the opposite. I will show in
more detail in the following question that the opinion of Binsfeld,
Claro, and the others clearly lacks any foundation.
Question XXXVII. Whether in general proofs that are not suffi-
cient in common crimes suffice in excepted and occult crimes which
are difficult to prove?
i answer, they are not. This response directly contradicts the
juridical pronouncement that we provided from Binsfeld in the pre-
vious Question, and also the one cited from Lessius, namely that a
dishonorable witness is to be admitted only then when the truth can-
not be found in any other way. Similarly it is contrary to the current
practice of many judges, who in the crime of witchcraft, because
it is exempt and hidden, are content with lesser proofs, such as de-
nunciations made by disreputable accomplices or rumor alone and
similar things. However our answer is the truest one. These are the
reasons.
reason i. The contrary opinion lacks any foundation. First of
all, let us say that a particular crime being tried is an excepted one,
what then? I have already shown a little earlier that right reason
Hellyer text 4/14/03 12:54 PM Page 145

question xxxvii 145

demands that evidence permitting torture be as compelling as pos-

sible. However, whatever right reason demands must hold equally in
excepted and other crimes, particularly if everything else is the same.
This is the case here, since the same cause, from which we require
weighty evidence for torture, is found equally in excepted and other
crimes, as I said. Therefore legitimate and as-if-full evidence is no
less necessary for torture in excepted than in other crimes, as Fari-
nacci states well in question 37, number 88, along with those whom
he cites in number 82, namely Carrerius, Gabriel Saray, Monticella,
Mascardi, Albericus, Iodocus, Rulandus, Paris de Puteus, etc.
reason ii. I argue this way: In common crimes weak evidence
and conjecture do not suffice for torture because torture is danger-
ous, and we must avoid endangering human life here lest an inno-
cent person die. Yet this danger is not only unequal in an excepted
or atrocious crime but in fact much greater, especially in the crime
of magic, as was made clear above, in Question 2. Therefore not only
does weaker evidence not suffice in this crime, but in actual fact
weightier evidence is required. Hippolitus quite correctly observed
this in Rimin. Consil., 88, number 53, volume 1, and more completely
in Consil., 361, number 32, volume 3, where he clearly expresses our
opinion: The more serious and atrocious the crime, the weightier and more
vehement the presumptions and evidence must be, since it is a more dan-
gerous matter (Cap. ubi periculum, de elect. 6).* Farinacci also thinks
this in the passage cited, number 88, even if he then groundlessly
makes an exception if the crime is also difficult to prove or secret, for
we must still adhere to what I have said already and will now demon-
strate further.
reason iii. Even if the crime is secret and difficult to prove,
what then? Does it then follow that weaker arguments and (as Bins-
feld says in his juridical pronouncement) conjectures must suffice in
order to prudently convince myself that Sempronius did it and that
nothing is lacking for complete proof other than his confession? I
reject this conclusion.
reason iv. Indeed, the complete opposite follows. For if the
crime is secret, if it is hidden and shrouded in shadows, then there is
need for more light, not less, in order to illuminate it. If it is difficult
to prove, then there is need for stronger, not weaker, proofs so that
it can be fully or almost-fully proven. For I cannot adequately un-

* Spee takes this passage of Hippolitus from Farinacci.

Hellyer text 4/14/03 12:54 PM Page 146

146 cautio criminalis

derstand how something can be more difficult to prove and never-
theless easier to prove, as you claim. Thus if you reject conjecture in
a common crime which is not difficult to prove, you should reject it
all the more in a crime which is difficult to prove.
you will say, because stronger evidence can be found in crimes
which are easier to prove, we rightly reject weaker evidence or con-
jecture in them which we may nevertheless admit in crimes which
are more difficult to prove. Since stronger evidence cannot be found
here, then according to the common sense everyone has, whoever
cannot obtain the greater is content with the lesser.
i answer. It is true that whoever lacks the greater can be con-
tent with the lesser. Nevertheless, he errs if he attributes the same
force to both and wants to use them both equally for the same effect.
For if the greater is absent, the lesser does not change its nature and
become greater. I will clarify this with an example. A traveler injured
in a forest is content with water when he cannot have wine. He
drinks it and slakes his thirst one way or another. However he is
greatly mistaken if he thinks that he can effectively use water to heal
his wounds because he lacks wine. In the same way, if in some hid-
den crime no evidence is at hand other than weak conjectures, you
would be entirely mistaken if you should assign the same force to
this weak evidence because no weighty evidence is available, and
think that it is sufficient for that for which weighty evidence is nec-
essary. Nevertheless, seize those conjectures, be content with them,
do not reject them, use them—but as conjectures for further inves-
tigation, for thought, etc., not for torture or conviction. For a con-
jecture which is a conjecture does not suddenly change its nature
and become an almost-full proof just because it concerns an ex-
cepted or hidden crime.
reason v. The contrary opinion manifestly contradicts Christ-
ian charity and natural justice. For it seems to me that my opponents
argue in this way: witchcraft is the most serious, the most atrocious,
the most harmful excepted crime, since we cannot imagine anything
more evil or horrible. Likewise, it is the most secret crime and the
one most difficult to prove. Therefore we need less support, less and
weaker evidence, in order for us Christians to impute prudently and
rationally so unspeakable a crime to our Christian neighbor and
drag him off to the most severe and dangerous interrogation possi-
ble, as if he were almost or as-if-fully convicted. But I would rather
Hellyer text 4/14/03 12:54 PM Page 147

question xxxvii 147

infer from the logic of the Gospels that we therefore need more sup-
port rather than less.
you will say that this is not the thrust of the argument which
the contrary opinion is based upon, rather it is this: witchcraft is the
most serious and harmful crime, therefore one may conclude that
it is enough to have seen the slightest shadow of witchcraft in order
to promptly run to help the tottering state with whatever means
possible.
i answer, I do not deny this conclusion completely, but limit it.
For it does follow that when the smallest shadow or suspicion of this
plague arises you should arm yourself to defend the state. However,
how you defend it, whether legally or illegally, rationally or irra-
tionally, is not irrelevant. You must help the state, I do not deny it,
but in a way that you do not struggle against reason, nor injure any-
one’s natural rights or the love common to all Christians. This will
indeed happen if you inflict such a huge and dangerous evil that
brings disgrace with it, like torture, upon your neighbor for flimsy
reasons and insist against the dictates of reason that the more seri-
ous the crime, the less evidence you need to accuse someone of it,
and the more hidden and secret it is, the more easily you may believe
that you have detected it and sufficiently proven it for torture.
reason vi. The contrary opinion overturns dialectics.* I will
show this in the following example. My opponents say that the tes-
timony of a dishonorable witness or an accomplice or partner in
crime does not suffice for torture, nor does it prove almost-fully. If,
however, the crime is excepted, or difficult to prove otherwise, such
testimony now suffices and provides valid proof for torture. I say this
is entirely contrary to dialectics and prove it this way: according to
all dialectics, testimony of this kind is called evidence “from author-
ity,” concerning which dialectics has this unshakable teaching: its
strength and weight depend on the authority of the witness, that is,
on his veracity in speaking, so his evidence has greater or lesser force
and strength as proof depending on how truthful we can prudently
presume him to be. For one cannot consider something to be more
or less proven because it is a matter of a greater or lesser crime,
excepted or non-excepted, secret or not secret, but rather because
the greater or lesser authority or veracity of the witness proves it.

* I.e., formal logic.

Hellyer text 4/14/03 12:54 PM Page 148

148 cautio criminalis

One would say dialectically, the weight of the evidence depends on
the speaker, not on what is said. That is why the name “from author-
ity” is given to it. Having established this, I cannot see how, without
great harm to dialectics, the witness’s evidence can be stronger the
less his veracity. That is what the opposing opinion is defending,
since it attributes more weight and strength to evidence from the
authority of the disgraced witch than to that offered by the thief.
Here are two cases for the sake of example.
I. A disreputable thief denounces Titius as a thief, therefore
Titius is presumed to be a thief. Such proof must be considered to
be almost-full, and Titius is then taken off to torture.
II. A disreputable witch denounces Titia as a witch, therefore
Titia is presumed to be a witch. Such proof must be considered to
be almost-full, and Titia therefore is taken off to torture.
Concerning the first example, my adversaries say that this is fee-
ble evidence; Titius cannot be tortured. Concerning the second,
they shout that it is valid evidence, that it completely proves that
Titia may be led to the rack.
I ask, where does the second case get its strength from? Dialec-
tics requires it to be from the authority of the denouncer. Therefore
the wise reader should consider in which of the denouncers we can
rationally presume the greater veracity to be found: in the thief or in
the witch? Why in her rather than him? Which of them, thief or
witch, has licked more measures of salt with the father of lies (if it is
salt that they usually feast upon)? Which is more suspect of deceit?
The one who has only wandered from the common path, or the one
who has cast aside all faith in God and humanity, who was a slave to
the devil for so many years, who indubitably imbibed his ways and
thoughts, who was able to learn to deceive and lie from the best pro-
fessor of this art? Therefore greater force inheres in evidence de-
rived from authority when the credibility of the person attesting to
it is less, which is absurd. But even if we should seek the strength of
proof derived from authority not just in the credibility of the person
attesting to it, but should also wish to attribute some weight to the
subject matter itself by which it might arouse our credulity to a
greater or lesser degree, just as when we more easily believe things
that are easier to do, such as a witch devouring a whole chicken
rather than a whole sheep, this nevertheless helps our case also. For
it is well established that it is always more credible if someone is
accused of a common crime rather than an extraordinary, enormous,
Hellyer text 4/14/03 12:54 PM Page 149

question xxxviii 149

atrocious, abominable, and excepted one. So in the end we are left

with what we intended to show, that is, it is not the case at all that
lesser evidence suffices for conducting trials in excepted crimes, and
in particular the crime of witchcraft, than in others, and in fact the
law demands greater evidence.
Question XXXVIII. Whether the juridical axiom that in occult
crimes difficult to prove one may move to torture more easily than
in other crimes is in no sense true?
i answer, this axiom is true if it is explicated correctly. For one
can proceed more easily or promptly to torture, assuming that one
can proceed to it at all, that is, assuming that you have an almost-full
proof of the crime, since without it one may not move to torture at
all, unless contrary to reason, as I showed above. So that you may
understand this point, I will explain it in more detail. For the sake of
example, let us assume that you have two prisoners: first Titius,
whose crime is by its very nature completely hidden and exceedingly
difficult to prove, and next Sempronius, whose crime is such that it
does not seem to be difficult to find a full proof of it. Let us assume
also that you have an almost-full proof for both of them. I say now
that you may proceed to torture with both of them, but with this dis-
tinction: you may move much faster with Titius than with Sempro-
nius. I will explain it further in this way: the legal scholars teach by
general consensus, as Claro reports in book 5, question 64, number
5, that before he rushes to torture, the judge must diligently con-
sider whether he can find some other proofs, that is, full proofs, with
which he can convict the suspect of the crime. If there is such proof,
he must abstain from torture, for torture may only be introduced
when the crime is not yet fully proven, but only almost-fully or half-
fully, so that through torture a confession can be extracted from the
suspect himself which fills this gap. Since torture is a dreadful and
dangerous thing, it follows that if the judge can find a full proof any
other way, then he must seize it with both hands rather than seek it
through torture, which is not without danger. But it follows that in
order to avoid this danger, the judge is bound to investigate these
proofs with care and diligence and not have recourse to the rack
without with some reluctance and delay, which he should put to use
discovering full proofs, particularly if he is dealing with a common
crime in which there is some hope that such proof can be found. But
if the crime is of the kind which is secret and hidden and therefore
Hellyer text 4/14/03 12:54 PM Page 150

150 cautio criminalis

difficult to prove, then certainly (if he otherwise has sufficient evi-
dence for torture, which is always to be presupposed according to
right reason) the judge need not be reluctant or uneasy about pro-
ceeding to torture more promptly and easily than in other crimes,
since in these hidden crimes there is no hope of easily finding some
full proof, because of which hope I said that there is the need for
reluctance and delay in other crimes. Now that I have related these
points, we can see the sense in which it is true that one can torture
more easily and promptly and with fewer scruples in secret crimes
or ones difficult to prove than in others, namely by assuming and not
excluding that the suspect can legally be tortured because there is
sufficient evidence. From this dictum some judges have derived the
opportunity to err and have interpreted it falsely, as if it were per-
mitted to move to torture more easily and promptly in secret crimes
with lesser evidence and without almost-full proof. Behold this source of
error in the reckless interpretation of a correct dictum, which, to my
amazement, learned men have not yet noticed. Thus it has often
happened in this business of witches that the rack has been readied
most promptly for the slightest reasons which differ to no small de-
gree from almost-full proofs, while ignorant judges shout—without
really understanding—that they can proceed to torture more easily
in secret crimes. Truly one ought to wish that those good and zeal-
ous men who inflame the rulers into harshly prosecuting this crime
of witchcraft had devoted care and learning equal to their zeal to
these matters, by which they might have detected these errors and
ones like them and then removed them from their own consciences
and those of the people whom they incite. Again I warn the rulers to
pay attention, for not all their advisers always have the learning and
foresight they are thought to have, yet one is not allowed to be care-
less and indifferent in such a serious matter as witchcraft.
Question XXXIX. Whether someone who has confessed nothing
under torture may be condemned?
i presuppose that no one can be condemned unless their guilt
can be established for certain, since no innocent person may be
killed. However, anyone who is not known to be guilty is presumed
to be innocent. Guilt is usually established in two ways: either be-
cause the suspect legally and legitimately examined confesses him-
self, or because he is completely convicted of the crime by full proofs,
that is, clearer than the light of day. Indeed, if either of these meth-
Hellyer text 4/14/03 12:54 PM Page 151

question xxxix 151

ods establishes that he is a criminal, he can be condemned, since it

is not required that it be demonstrated and that he confess, but
either one of them alone suffices. With this established,
i answer, a woman or man who remains silent under torture
cannot be condemned without injury to justice and right reason.
This is contrary to the current practice of certain judges which I
have seen in witch trials in several places and groaned at. Recently a
woman was led to the stake who had been exhausted three, four,
even five times on the rack. She denied with a loud voice that she was
guilty and maintained it throughout her torments until she entered
the flames at the pyre, where she repeated it to a notary. This has
happened many times elsewhere, and recently even to a priest ac-
cused of witchcraft, about whom the prince should have been in-
formed. But I will omit further examples. However I consider this to
be unjust. These are the reasons:
reason i. No one can be condemned whose crime is not proven
for certain. That woman’s crime, about whom I just spoke, had not
been proven for certain, therefore she could not be condemned.
The minor premise* can be proven like this: if her crime had been
proven, it was either from what she confessed about herself or be-
cause she was legitimately convicted; neither was true here, there-
fore it was not proven. It is clear that she did not confess. That she
was not convicted either is proven in this way: if she had been con-
victed, then she would not have been tortured; however, she was tor-
tured, therefore she had not been convicted. It has been established
from what was said above (and see Farinacci, question 38, number 4)
that torture is to be used as a supplement to proof. If she was tor-
tured three or four times, then three or four proofs required sup-
plementing. However, if they required it, they were not in any way
full. If they were not full, then they did not convict her as guilty.
Therefore she was not legitimately convicted. Therefore her crime
was not proven for certain. Therefore she could not be condemned.
reason ii. I ask the judge, to what end did he torture her? Was
the torture a punishment for an offense? Or a path to the truth? It is
against the law and completely unheard of that torture be a punish-
ment, for what crime is it punishing? The one you have not yet
proven and are investigating? Therefore the judge tortured as a path
to the truth. If, however, this was the case, then he had not yet

* I.e., that her crime had not been established as certain.

Hellyer text 4/14/03 12:54 PM Page 152

152 cautio criminalis

reached the truth beforehand, and since the accused then confessed
to nothing, he did not reach it afterward. If he had not yet reached
it, why was such a cruel sentence imposed on a suspect whose guilt
was doubtful, since the truth had not yet been grasped?
reason iii. Likewise I ask the judge whether or not the sus-
pect’s confession was necessary for her to be condemned. If it was,
why was she nevertheless condemned without it? If it was not, it was
cruel to mangle someone with such severe tortures whom he would
send to capital punishment whether or not she confessed, lest she
who was sentenced to one death should die only one death.
you will say, the judge therefore tortured her not to seek the
truth but to strengthen and confirm it, so that the case may be all the
more certain and corroborated. But
i answer, he did it wrongly and ignorantly, for the law is com-
pletely silent on using torture for the goal of confirming a truth
already discovered. However, it is the common opinion of the the-
ologians and legal scholars that torture may be introduced as an aid
to proof. Therefore this departs wrongly from the common opinion
in an odious and dangerous matter and introduces a new law. Indeed,
whatever you should say, nevertheless the same argument returns:
either her confirmation was necessary for the conviction or not. If it
was, why then was she nevertheless condemned without it? If it was
not, it is cruelty, as I have said, and a mortal sin, to have imposed such
grave torment upon a neighbor for the sake of a confirmation that
was not necessary. For this reason Gomezius in Variar. Resol., volume
3, chapter 13, tit. de tortura reorum, number 20; Boerius, Decis. 63,
number 13; Cravet. Consil. 178, number 10, page 209, and others
along with Farinacci, question 40, number 4,* rightly think that a
judge who tortures a convicted criminal is a fool and is bound not only
to the Syndics but most of all to his conscience, as Navarra, chapter 18,
doubt 17, number 59, notes, as do Lessius chapter 29, doubt 17, num-
ber 172, and Covarruvias, Pract., question 23, conclusion 1.†
reason iv. According to the common opinion, all evidence and
proofs are cleared away completely through torture. Indeed, if a sus-
pect who has already been convicted steadfastly persists in denying
his guilt during and after torture, he must be set free, as Farinacci
teaches according to the common opinion and Delrio follows in

* All these citations are taken from Farinacci.

† These last three citations are probably from Tanner, number 18.
Hellyer text 4/14/03 12:54 PM Page 153

question xxxix 153

book 5, section 9, in whose works whoever wishes can see the cita-
tions. Therefore by being tortured and not confessing, the woman
cleared herself. If she had cleared herself, then by what law was she
condemned? Her persistence in denying her guilt until death aided
her in clearing herself. For the final words that a person expresses
immediately before death have no small weight, as we will show a lit-
tle later on. Even if someone who denies their guilt through all their
tortures and even up to the stake could be guilty, nevertheless I say
that someone who did not confess under torture may not be con-
demned, in part because of what has been said, in part because it is
proper to choose the safer path and set ten guilty people free rather
than expose oneself to the danger of punishing one innocent person.
But even if everyone everywhere admits this axiom and, moreover,
boasts of it, nevertheless you will hardly find anyone who shows
through his own actions that he actually does what he says should be
done. I cannot sufficiently wonder how such great cruelty, which
I offered as an example, can be caused by a judge baptized in the
Christian faith, who carries some image of future life in his heart and
knows that he will appear in the presence of that Judge who will
exercise judgment even over idle words. I am even more amazed that
there can be such blindness in clergymen that they do not perceive
anything here, nor fear God. For recently another woman, since she
could not be conquered either by torture or by the incredible inso-
lence of the bungling priest (may God have mercy on me if I offend
this estate) and say that she was guilty, was for this very reason con-
signed living to the flames, as if she were obstinate. Even when he
stood by the innocent victim at the stake (for someone who cleared
herself through torture and was not convicted must be considered
innocent) that most troublesome priest did not cease, but by the
harshness of her imminent execution and the offer of the hope of
obtaining grace, finally induced her to break her silence with these
three words, I am guilty. Then he hurriedly responded with these
three words, I absolve you. He immediately rushed to the judge and
asked for some mitigation of her punishment because she had con-
fessed that she was guilty. But the indignant judge responded that
she should have confessed more quickly, so he stood by the sentence
and she was thrown into the flames alive. One cannot recount how
that priest then emphasized this same point everywhere to whom-
ever he approached: that no one accused of magic should ever be
believed if they deny the crime, since a woman who had stubbornly
Hellyer text 4/14/03 12:54 PM Page 154

154 cautio criminalis

made it through so many torments finally conceded at the very last
moment that she was guilty. Truly this most foolish man committed
many sins, which he would be able to grasp with his hands if he had
the slightest bit of judgment. For
1. What sort of perversity was this, that by using all his strength
he wanted someone who could have been innocent to be guilty by
hook or by crook?
2. The priest could not judge here that she was anything other
than innocent. For she had not been convicted in any way, she had
cleared herself of all evidence through torture and did not want to
admit anything in the sacrament of confession. What more could be
required here?
3. If the priest was certain that she was guilty and was lying in
the sacrament, then he had to keep it within that court and treat it
there. If nevertheless she persisted, in the end he had to believe the
penitent and be content with that, as all the theologians teach. What
sort of new and dangerous opinions do we want to follow here? Let
us read and follow theology, as it has been handed down till now
throughout the entire world.*
4. However even if, at the very moment she was being put on
the pyre, the convict agreed that she was guilty with those three
words related above, who does not see from the circumstances and
her manner of speech that her admission ought not to be attributed
to the truth, but to her hope for grace and the insolence of the
priest pressuring her. So what material is there here for triumph and
boasting?
5. But if that ignorant man nevertheless thought that her words
were the truth, what kind of spiritual care was this, that he dared to
believe that an inveterate person, who until then had confessed in-
validly and was without doubt gagged by Satan by some special means,
was in an instant sufficiently disposed and contrite as if having been
miraculously converted, so that nothing else remained except to ab-
solve her quickly and ask the judge merely for a mitigation of the
execution, not a postponement. Clearly it was a question of the eter-
nal salvation of her soul. In order to bring it to safety and return such
a notorious sinner (for this is what this man supposed her to be) to

* Like all Catholic theologians, Jesuits were anxious to avoid the appearance of
novelty in their work. New opinions, particularly after the Protestant Reforma-
tion, were inherently suspicious.
Hellyer text 4/14/03 12:54 PM Page 155

question xl 155

God in grace, the execution should have been postponed and she be
better and more fully prepared for at least a whole day and instructed
on the holy viaticum.* But the judge is bound to this in his conscience
so that he may not deny it. And if he had denied it, then it was for
the priest to entreat and, indeed, having referred to his Evangelical
authority, to utter the threat of Omnipotent God’s wrath and, with
the people as his witnesses, appeal to the prince. Look who are the
guardians of our souls! The rulers want to have such men and the
superiors of the religious orders provide them, yet they do not think
that they sin. What a wonderful state of affairs!
Question XL. Whether a retraction made at the place of execu-
tion of a crime previously confessed should be granted any weight?
current practice is that these sorts of retractions of a crime
committed either by oneself or by others and previously confessed
under torture and ratified are to be dismissed as having absolutely no
weight. The judges are influenced by arguments taken from Bins-
feld, page 274, and Delrio, book 5, section 5, but these do not clearly
support them, as will soon become clear. Thus
i answer that retractions of this kind, if they are made by repen-
tant people, which is for the prudent confessor to judge, should not
be considered to have no weight at all, but on the contrary very great
weight, especially if they say that others have been falsely indicted.
These are the reasons:
reason i. Nature dictates that a dying person is presumed to be
mindful of his salvation and therefore does not want to lie, as Siman-
cas writes following St. Chrysotom and others, and similarly Canon
Sancimus 1 q. 7 & gloss. in cap. litteras, likewise de praesumpt. Dd.
in l. ult. C. ad l. Iuliam repetundarum [C. 9, 27, 6]. Delrio weakens
that by granting it only to a mind unperturbed and well in command
of itself, and adds that not everyone about to die is a saint, especially
sorcerers. But I answer, not everyone about to die has a disturbed
mind or is a non-saint or sorcerer. This is the very thing that is being
examined now, namely that we should doubt somewhat and consider
further whether all who recant are sorcerers. Therefore one must
not put it this way: they are sorcerers therefore their retraction must
not be heard, but rather they are recanting at a time when they know
that they will soon be standing before the tribunal of eternity. It is

* I.e., the Eucharist given to those about to die.

Hellyer text 4/14/03 12:54 PM Page 156

156 cautio criminalis

rare that someone is not mindful of his salvation at that point. There-
fore it can prudently be doubted whether they are in fact sorcerers.
reason ii. If we are to reject whatever the condemned reveal just
before death, why do judges and others who lay great weight on de-
nunciations made by witches completely infer that weight from the
fact that (as I will say below) they sealed their denunciations with
their death? So they themselves establish the foundation that we
should not presume that anyone would want to end their life with a
lie. However, I will set their own exact words against them and say
that not everyone about to die is a saint, particularly sorcerers, and
therefore it says little if they seal their denunciations with their
deaths. But, no doubt, if they seal with their death something that
the judges like, then the seal has great weight. However, if it is some-
thing that the judges do not like, then it has none. What a fine rule!
May God save us!
reason iii. The Caroline Criminal Code employed in the em-
pire agrees with us, for it puts things this way in article 91:
“If on the day of judgment the accused denies a crime which he
had previously legally and steadfastly confessed, and the judge learns
through an investigation of all the circumstances in his confession
that the criminal made the retraction solely to impede the legitimate
process of the law, then the judge shall interrogate under oath those
two appointed assistants who together with himself heard the record
of his confession read out whether they heard the confession read
out, and if they affirm that they had, the judge shall begin consulta-
tion and deliberation with legal scholars, or in other places and by
other means, as is indicated below, etc.” From which Tanner quite
correctly concludes in his disputation “On Justice,” question 5,
doubt 4, number 98, that if the Code wants the matter to be dili-
gently considered and discussed with learned and skilled men even
when the condemned made the retraction solely to impede the legit-
imate process of the law, then much less does it want a retraction to
be neglected or condemned when one can presume it was made by
a repentant person and not a malicious one. It remains to respond to
my opponents’ arguments by which they prove that a retraction of
this sort made just before death should not be considered. These are
their arguments:
argument i. Rarely do people on the brink of death have the same
even mind that they did previously when they confirmed their con-
fession. The judges argue this following Delrio, book 5, section 5. But
Hellyer text 4/14/03 12:54 PM Page 157

question xl 157

i answer. It is not rarely, but in fact often, the case that many
people are more clearheaded than previously when they see death
right before their eyes, and evidently to the extent that they do not
want to lie, and for this there is no need for reasoning nor great atten-
tiveness and peace of the soul. However this may be, judges there-
fore concede that when the minds of the condemned are not per-
turbed, at least then their retractions are to be granted great weight,
which is what we wanted to show. Although I fear that this will be of
little help to us, for the judges will perhaps say that if anyone recants
then this is itself a sign of a perturbed mind, and so everybody who
recanted was perturbed. We hope for gentler things.
argument ii. Usually the condemned will be disturbed and
perturbed at the final moment of their lives because they are being
harassed by the people whom they denounced or by people vigor-
ously admonishing them about the salvation of their soul. My oppo-
nents argue this way following Delrio, which turns out to be the
same as their first argument. But
i answer. The things which this argument assumes must be
denied. For first of all, how do the people denounced know that they
have been denounced by the suspect, so that they should want to
pressure him into a retraction? All the denunciations are kept in
records that still remain secret. So how are they going to know it? I
do not agree that if people have a guilty conscience and fear that
they have been indicted, then they will harass the condemned. For
clearly they, as is the nature of a bad conscience, will rather take care
not to come into the prisoners’ view or thoughts at this time, lest
perhaps they arouse either the judge’s or others’ suspicions, or the
prisoner’s memory of the suspect, by which it could happen that
motivated by penitence he could still denounce them before his
death even if he has not yet done so. But perhaps Delrio wanted to
hint at what is customary today and has not yet been punished by
any ruler as far as I know, namely that those who are present at the
suspects’ interrogation immediately blab all the denunciations to the
common people, by which it can happen that those who were de-
nounced learn that they have been accused. But however this may
be, it must still be denied that the denounced who know that they
have been accused harass and disturb the prisoners before their
death. For no one is admitted to the condemned after their sentence
is received except for the priest and the executioner. Therefore
unless those men have themselves been denounced or are employed
Hellyer text 4/14/03 12:54 PM Page 158

158 cautio criminalis

by those denounced, the denounced certainly cannot harass the con-
demned. Next, it was mentioned that the condemned are often dis-
turbed by being harassed by those vehemently admonishing them
about their salvation; this also speaks in our favor, not against us. For
if they are vehemently disturbed about their salvation, then they will
be all the more concerned about it; they will not endanger it by
lying, since they are about to die. Moreover those troublesome peo-
ple who warn them about their salvation are not usually trying to
get the condemned to think seriously about the truth or admonish-
ing them to recant if they perhaps lied once the torture had over-
whelmed them. Rather they usually just tell them to confess that
they are guilty, whatever the truth may be. For these ignorant peo-
ple presuppose, as I taught above in Question 19, that the case can-
not be otherwise than that she who has been accused, arrested, and
made to confess is completely guilty. So any retraction made just
before death does not happen at the insistence of those admonish-
ing the condemned about their salvation.
argument iii. This retraction was not made with the same for-
malities that were present at the first confession, therefore the ini-
tial one prevails. In addition, the second is extrajudicial, the first
judicial. Once again this is from Delrio. But
i answer. I do not say that this retraction must necessarily take
precedence over the first confession and the condemned be imme-
diately absolved, for then every condemned person would recant be-
fore death. But I say this: the prior confession, even if it was made
with all the formalities of the law, is not necessarily true, indeed these
days one cannot with sufficient prudence assume it to be true, both
because of the worthlessness of the evidence that is used today and
because of the huge danger that torture brings with it, as I have shown
quite often. Therefore, if prisoners well prepared to die should sing
a retraction just before their death, that should not be entirely
ignored and rejected but carefully considered, and the evidence re-
called to the anvil and carefully examined, and as the Caroline Code
requires, consultation with legal scholars undertaken, especially in
the crime of magic, which does not require less consideration and
attention but more, since it is an excepted crime, as I proved above
in Question 8. Yet who among the judges in Germany has ever done
this? If some pious man should want to admonish the judge in these
and similar cases, there are those who are indignant and scold him,
saying what does this have to do with us? They insist that they know
Hellyer text 4/14/03 12:54 PM Page 159

question xl 159

their jurisdiction and the law while we have not studied them, as if
they were some kind of completely secret mysteries which no one
had ever cast their eyes upon except those whose profession had
brought them to them. Indeed, if the goodness of either their judg-
ment or their consciences necessarily kept them from the danger of
erring from the first moment they dealt with these cases, then it
would not be the case that we needed warnings and caution. But mat-
ters are different now, and I have noticed that the only way trials are
conducted is so that in the end the truth does not shine brightly
throughout Germany, but bonfires.
argument iv. The statement of a dying person is not sufficient
testimony to subject another to torture, neither in a homicide, nor
when a judge says that he imposed a false sentence, nor in the crime
of theft, nor in any other crimes, according to the common opinion
accepted in practice. Again the judges urge this from Delrio. Simi-
larly, therefore, the statement of a dying person is not sufficient tes-
timony for negating a confession made earlier, etc. But
i answer. This doctrine is derived from the law si in gravi, § 1ff.
ad SC. Syllanianum [D. 29, 5, 3, § 1ff.], where it is said that a
wounded person about to die should not be believed if he says that
he has been struck by Titius and this cannot be proven any other
way, concerning which text Bartolo has a lot to say. But even if that
is the case (for it is not our business to discuss that here—see Fari-
nacci, question 46), nevertheless it does not therefore follow that the
statement of a dying person does not constitute some presumption
and evidence that the matter should be considered further, which is
what we wanted to show and along with us the Caroline Code,
which in article 25 determines that the word of a dying person
does constitute evidence, which Binsfeld cites on page 277 as do
Stephanus Bertrandus and others, which suffices for us.* Certainly
Binsfeld himself on page 275 is forced to admit the conclusion that
even if a retraction such as we have been treating does not negate an
earlier confession in the external court, nevertheless it is of the
greatest significance to God and men when a person immediately
about to die exculpates and frees from blame those whom he has

* As a probabilist moral theologian, Spee merely has to show that his opinion is
supported by reputable authorities in order for it to be a safe and morally accept-
able course of action, not that it is the safest or the only acceptable course of
action.
Hellyer text 4/14/03 12:54 PM Page 160

160 cautio criminalis

inculpated. Consequently the judges should consider what they are
doing, since they should take care that their actions hold up no less
in the internal than in the external court. They should recall their
axiom that it is better to release twenty guilty people than to execute
a single innocent one.
argument v. Such a person would not have confirmed the con-
fession she first made under torture when she was sentenced before
the bench of the law, as they call it, for she would have opened
her conscience then and revealed that she had lied under torture.
But
i answer. These things are much easier said than done. Woe is
she if she really had said this before the bench of the law. The judges
would have sent her back for interrogation, and she would have
achieved nothing other than to have piled lie upon lie while being
rewarded with enormous suffering. Therefore those prisoners who
confirm their lie before the bench of the law and finally recant only
when they are already falling into death’s embrace and are safe from
torture act prudently. In contrast, I have recently observed that they
are truly too simple and are basely deceived who, when challenged
by the voice of the judge two or three times to speak the truth freely,
say before the bench that they lied under torture. Once they have
been led back into the interrogation, they quickly learn that of all
tortures, none is harsher than the one following the freedom to speak
the truth. For some inquisitors are not content when the prisoners
hear mention of being led back in again and immediately condemn
that freedom, ratify their earlier confession, regret their retraction,
and wish that it were undone. For they still order the prisoners to be
led back in and tortured anyway, and then to state completely freely (for
this is the phrase they use and the reader may now learn what it
means) before the bench of the law, I say to state completely freely,
that they are guilty. Then the inquisitors boast not without great
exaggeration before the people how malevolent those sorcerers were
who were finally found to be guilty after they had previously tricked
the court. So after this, one would have to be completely insane to
dare to say anything before the bench other than what the judges
wanted.
That inquisitor, who is not to be named, is far too charming and
ingenious who sometimes on the day before the accused are to be
executed orders them to be notified, even through their confessor,
that they should know that ladders have already been prepared to
Hellyer text 4/14/03 12:54 PM Page 161

question xl 161

which they will be bound and cast alive into the fire if they waver at
the place either of judgment or of execution but then confess again
when they are tortured afterward. As events recently taught in sev-
eral cases, these were no empty threats. This same man dared to com-
mand the confessors themselves that if any women denied their crime
at the place of execution in the sacrament of reconciliation, they were
not to absolve them at all but abandon them to be burned alive. And
confessors of this kind were found who provided not only their labor
but also their ecclesiastical authority for lucre and dared to perform
this unworthy task under that wretched man. These men would say
very harshly to the accused in their standard formula that they could
in no way be saved unless they consistently confirmed until the very
end the confessions and denunciations they had made under torture.
Woe! what sort of a method is that? And what sort of punishments
will God give to the ruler who employs these officials? These are
truly grave crimes and yet this is justice, and the rulers are incited to
it and commended for it by the zealous!
you will say, the rulers are ignorant of these things and there-
fore they are excused; if they had known about them they certainly
would have punished them very severely.
i answer. I grant that they are ignorant—that it what I am
complaining about—but I completely deny that they are excused for
it. For they could have known all of these and similar things if only
they had wanted to. Why were they ignorant of them? I will show as
clearly as possible that they could have known.
All the rulers and their officials shout that the crime of magic is
completely hidden and creeps around in complete secrecy. Never-
theless our princes think this completely secret crime is not so hid-
den from them that they are unable to drag into the light an infinite
number of people guilty of this crime every day. They know and nar-
rate entire Iliads of crimes and plots which the witches carried out at
their secret sabbaths.* Yet if they can know these and similar things
that they claim are submerged in darkness, how is it that they do not
know about things that are carried out openly in the sight of their
people?
So the princes’ deeds will not stand before God, nor indeed be-
fore people, since it is difficult to cloak oneself in such implausible

* A reference to Homer’s epic account of the Trojan War, which abounds in grue-
some detail.
Hellyer text 4/14/03 12:54 PM Page 162

162 cautio criminalis

ignorance. I said these things in passing as the opportunity arose,
nevertheless they must be considered so that our wonder at why
the number of witches in Germany is so great may decrease. How-
ever, to prevent any prisoners from troubling them with a retraction,
the other judges should note and imitate the great strategy of that
inquisitor I already mentioned. That way our entire disputation—
whether any weight is to be assigned to those retractions —will
collapse.
Should many people believe that an executed woman was inno-
cent and the judges want to learn another of that inquisitor’s strate-
gies by which they might splendidly banish that opinion, I will not
refuse to teach it to them. This is how they should do it: whenever
they are stretching other women on the rack, they should direct
their questions with some dexterity so that they bring the memory
of the deceased back to them. They will willingly accuse her in order
to free themselves from their pain (since they usually name deceased
people anyway, as I will state below), and the goal is achieved. They
should immediately spread it around and make sure that it is recited
from the transcripts before the bench of the law, how every day new
and different accusations erupt against that wicked woman. They
should also add that it is fortunate for her that she has already been
executed, otherwise if she were still living now she would be thrown
into the flames alive.
[NB in margin] On the other hand, if it is dear to the rulers of
Germany to learn of and punish the wickedness and transgressions
of some of their officials, I suggest this remedy. They should reveal
that it would not displease them if a complete list of these sorts of
things were compiled; very soon there will be people to compile them
and show how unworthily everything is being devastated under the
appearance of justice. I myself have not wanted to investigate more
diligently.
Question XLI. What is to be presumed about women who are
found dead in prisons?
i answer, if a woman who has been accused of witchcraft but
has not yet legitimately confessed under torture or been convicted is
found dead in prison, it must be presumed that she died a natural
and honorable death unless the contrary can be adequately estab-
lished from sure signs. This is contrary to the practice of many igno-
Hellyer text 4/14/03 12:54 PM Page 163

question xli 163

rant men, who, whenever they learn that a woman has breathed her
last in prison, immediately judge that she was strangled by the devil,
and command that she be taken out under the gallows, as I myself
have seen more than once. Nevertheless our answer is the truest
one. These are the reasons.
reason i. It is the common rule of theologians and legal schol-
ars, derived from the law of nature itself, that everyone is to be pre-
sumed good as long as it is not sufficiently proven that they are evil.
Similarly, therefore, a natural death is to be presumed until it is suf-
ficiently shown to be otherwise.
reason ii. According to the law, when a person is found dead in
prison, the presumption is not against the dead person but against
the jailer, that is, the prison warden, namely that the prisoner had
been badly treated. See Damhouder, Criminalium Praxes, chapter 17,
and the laws he cites.
reason iii. There are always reasons here which support a nat-
ural and honorable death.
1. She was broken by tortures, concerning which Augustine said:
Even if they are not executed, frequently they die during or because of the
tortures themselves. The City of God, book 19, chapter 6.
2. She was tormented with shackles and chains.
3. She was weakened by the filth and horror of the prison.
4. It occurred through grief and sadness, which, if they can dry
out the bones of a man, according to the testimony of Scripture, can
all the more dry out the bones of a woman.*
5. She lacked any consolation. The priest, from whom she should
have been able to hope for it, was perhaps more troublesome to her
than the torturer.
Therefore, when a woman is found dead, unless there are ade-
quate signs to the contrary, it must be judged that her breath ceased
for these reasons, unless perhaps we are so ignorant or malign that
we do not think that so many evils heaped together could have suf-
ficed to smash one weak vessel, that is, to drive a female’s soul from
her crumbling and worn-out body. I will insert here what I learned
in this matter about two years ago when I was myself present in the
castle of a prince whom I will not name. I was sitting at the table of

* Proverbs 17:22: “A cheerful heart is a good medicine, but a downcast spirit dries
up the bones.”
Hellyer text 4/14/03 12:54 PM Page 164

164 cautio criminalis

the governor of the place, a very good friend of mine,* and by chance
a medical doctor was also present who was uncommonly skilled in
both his own art and mathematics. I do not know what occasion
prompted us, but we said many things about witches. I mentioned
these matters, as we were saying many things about witches and were
of the same opinion in everything. Meanwhile after the jailer visited
the cells to bring the prisoners their breakfast, he rushed in to us and
announced to the governor that one of the people being held as
witches had been strangled by the devil and had expired during the
night. The doctor and I looked at each other. Indignantly shaking
his head, the doctor said, “The perverse and twisted opinion of the
people! Several days ago this unfortunate man was pulled apart on
the rack and mangled with a rod until we were numb. He lay in the
dungeon yesterday between life and death, completely listless and
feeble. Nothing is more in accord with nature than that he should
find death through so many torments, nothing is easier to believe.
Nevertheless, no one will believe it, no one will judge it this way.
They will all say that he was strangled by the devil, they will pro-
nounce this as if it came from the mouth of Apollo.† An amazing
thing! How many people have died so far in prisons throughout
Germany? Yet not one of them from their tortures or the miseries of
their prison. Who has heard this? The devil carried them all off, he
broke all their necks. And what proof is there for it? Who was there?
Who saw it? The executioner says it. That is to say, he who does not
want to hear it said that he used torture too harshly—a dishonorable
and generally worthless man, who alone can be the witness because
he is the only one who handles and examines the cadaver. All proof
rests in this one man alone. If you should examine matters closely, in
the end the entire and final proof is nothing other than his opinion
repeated. In this matter we can validly be amazed, since in other mat-
ters no one has such authority that it does not leave some room for
doubt from time to time. Nevertheless in this very serious business
it is the authority of the executioner alone which conquers all doubt;
whatever he pronounces is considered to be completely true, as if
Jupiter himself had spoken.” So the doctor spoke. Since I liked his
words very much and desired to pursue this argument, I turned to

* Spee was himself the son of a nobleman and castle governor, so it is not surpris-
ing that he mixed in such company.
† A reference to the Delphic oracle, who as Apollo’s mouthpiece spoke the truth.
Hellyer text 4/14/03 12:54 PM Page 165

question xli 165

the governor and said, “So that we might know with more certainty
those things which we are discussing for the sake of knowledge, I ask
that witnesses be sent from this table who can bring the certain truth
back to us in this matter. So that the cadaver can be inspected imme-
diately, they should accompany the torturer, since he is at hand, and
diligently examine it. This way we may be certain of how things really
are.” This pleased the governor so much that he wanted to be pre-
sent at the examination himself. Therefore they went off and soon
returned. They said, “In fact the matter is nothing other than that
the devil crushed his neck. It is completely broken, limp and weak so
that his head sways and nods in any direction. The other limbs are
whole and firm. The torturer revealed it to our eyes while we stood
by so that he could not deceive us.” “I myself,” said the governor,
“saw this with my own eyes. I am a witness so that proof does not
rest in the torturer alone.” The rest said the same, and now that all
doubt had been removed they all returned to their meal. I held myself
for a little while, then drinking up, I asked, “May I speak more freely
here among cups and friends?” “You may,” said the governor, and I
continued, “I greatly fear that if one is to philosophize in the way we
have been philosophizing here, then some evil spirit also broke our
parents’ necks, who we believed died honorably in their own beds.
Don’t we know that there was never a human corpse so completely
rigid and cold that its head did not droop and sway in all directions?
Have we never handled a corpse? Have we never seen one handled
by others, wrapped up, moved, and laid out in a coffin, so that we
could still be ignorant of such a clear thing? Well done, what a great
and clear proof of a broken neck! If that executioner and also others
everywhere (as one can judge, indeed as is already quite clear to me)
are accustomed to use this proof, and the most simple observers
affirm it, then, I ask, how many people over so many years have been
undeservedly disgraced?” [NB in margin] Once I had said this, I got
up and left. I learned that some days later the body was buried under
the gallows. But the judges and all those whom this matter concerns
should see how they allow the executioners to lead them around by
the nose, and how well they preserve their consciences, when they
think that they know everything and neglect the solicitude and care
that must be singular and exceptional in witch trials, as I stated above.
Many things come together in this case which the negligent judge
will have to answer for before the eternal Judge. For
I. A deceased person of this kind has not yet legitimately con-
Hellyer text 4/14/03 12:54 PM Page 166

166 cautio criminalis

fessed or been convicted of a crime, nor is it even legitimately proven
that he was violently killed either by the devil or by himself. Thus it
follows that it is a mortal sin to deny him a church burial (see Del-
rio, book 6, section 19); nevertheless it was denied him.
II. Not only was he denied the requisite burial, but in addition
he was given an ignominious one, for he was dragged by the execu-
tioner to the gallows and buried there.
III. By this very deed, he who is given an executioner as an em-
balmer and the gallows as a mausoleum is considered by everyone to
be as surely guilty as if condemned by a court sentence.
IV. The same disgrace is passed on to his family and descen-
dants, which must be considered all the more serious the more re-
spectable his lineage. If each individual case is in itself significant
and subject to restitution both in the court of conscience and in the
external court, then it is not easy to measure the snares in which all
those men entangle themselves who rely on belief in such worthless
arguments when they besmirch the memory of the deceased, com-
pletely without a care. For those who are obliged by their office to
make the greatest effort to avoid working in ignorance cannot con-
ceal themselves behind a veil of ignorance.
Question XLII. When may it be judged in good conscience that a
corpse has been strangled by itself or by the devil?
i answer, it can be judged from these signs:
1. If a rope is wrapped around its neck.
2. If the head is twisted, and it must be clearly twisted around to
the back. It is not sufficient if it is leaning toward a shoulder. This
should be noted.
3. If lines appear on the throat which were not there the day
before. The opinion of a doctor is needed for this.
4. If the first vertebra of the neck has been moved out of its place
and sticks out at the back, which could not happen without great
external force being used. Finally then can strangulation be validly
presumed, and the body buried under the gallows, unless on the
other hand it seems that something can be presumed against the
jailer, as I said above. But if these or other manifest signs are not
found, the presumption must be in favor of the corpse, as I said.
Indeed the devil can strangle anyone without leaving a sign. We,
however, cannot know that he did it unless we see signs. If only the
superiors of religious orders would either send their subordinates
Hellyer text 4/14/03 12:54 PM Page 167

question xliii 167

out better instructed in such matters or shut up the mouths of the

imprudent ones, lest from the same proof as above they themselves
are among the first to shout and spread among the common people
that his neck has been broken when they learn that someone has
died in prison. Recently, when a woman who had been tortured in
the most miserable way possible was nevertheless led back to the
rack, she collapsed dead in the arms of the torturers and her head
hung down to the side. A regular cleric, the confessor to the prison-
ers, was the first of all to exclaim that the devil had snapped the neck
of that terrible witch. Since he also added that he himself had seen
that her neck was completely broken, there is no one who would not
embrace this fable all the more firmly the less they suspected that
regular clergymen could either lie in a serious matter or display great
rashness in judgment. Yet will no one pay attention to many similar
things? If those to whom the matter is important now sought an
accounting for those bodies from the judges who until now have
ordered them buried beneath the gallows for being strangled by the
devil, and if they ordered the judges to show them the signs by which
they were convinced of it and thereby defamed the families of the
deceased, the judges will not do any better than do they who are
asked about something which they have never thought about.
Question XLIII. Whether witches’ stigmata provide evidence for
torture and condemnation?
so that my reader may understand, this is how the matter stands:
people say that certain places are found on the bodies of witches
which lack sensation and blood, so that if you should stick a needle
or nail in there deeply, it causes no pain and no blood comes out.
They add that those places are sometimes also like a kind of spot or
conspicuous mark, whence they call them signs or stigmata which
the devil burns into his disciples (even if not all of them, as they
admit), just as everyone brands his property, such as furniture, sheep,
cattle, or slaves. See Binsfeld, page 626; Rémy, Demonolatry, book 1,
chapter 5; Delrio, book 2, questions 4 & 21. Therefore in some places
the executioners strip each prisoner and look for such marks no less
impudently than diligently. And the more important it is to those
searching to find some, the more easily they will. Some judges cling
so stubbornly to these marks that if you try to refute or question them
in any way, they become most indignant. It happened recently that
I was present at a conversation between a learned priest and a judge
Hellyer text 4/14/03 12:54 PM Page 168

168 cautio criminalis

who were discussing these very marks. The judge recounted many
things, but the priest did not believe him and added that he was aston-
ished that prudent men inquiring into these marks relied upon the
trustworthiness of a single torturer. This statement, which did not
seem to me to be unfair, so inflamed the judge that he rushed away
from the place and conversation completely indignant and not with-
out stating calumnies against the priest. I laughed and when I had
called him back and stroked him with words until his rage subsided,
I modestly asked him, “Let me put an argument to you, for I do not
know who can solve it for me. It is this: if with your accusatory bile
you so easily attack beyond all reason priests over whom you have no
power, how validly should I fear your manner of dealing with those
whom you hold in chains under the sway of your whim? How well
suited are those whose judgment is so quickly put in turmoil for dis-
cerning things which are completely obscure in witch trials? Like-
wise, how will men who blow up at any mention of the prisoners’
innocence care for the truly innocent?” Answer me who can. But let
us return to the stigmata. I have not yet seen any, nor do I believe
that I ever will. Every day I see that people are subject to infinite
deceptions, and the credulity even of great men is often shameful;
because they are too great to examine closely details of this kind
themselves, they embrace virtually any fables whatsoever, record
them in their commentaries, and thereby trick the world. Mean-
while, because I neither believe nor deny, I will say what I think until
it is better examined and taught by wise and learned men. And so to
the proposed question.
i answer i. It is futile to ask whether stigmata can be evidence
for torture. The reason is, in order for me to concede that it is proper
for the torturer to look for them on the naked body of the accused,
I would think that it would be appropriate that there already be at
least half-full proof. Since it is not permitted to torture without it,
then it will not be permitted to strip a woman in the presence of an
infamous scoundrel without it, since that is worse for that sex than
torture. If there already is a half-full proof against the suspect, what
need is there for the further evidence of stigmata for torture?
i answer ii. Before a trial may proceed on the basis of stigmata,
the judges must weigh up the following points in their consciences,
which those good men do not seem to have considered.
I. They must not trust the torturers, who are interested in money
and are often worthless or themselves sorcerers.
Hellyer text 4/14/03 12:54 PM Page 169

question xliii 169

II. Something that is a natural mark, spot, or scar or for some

other reason lacks feeling, such as spongy flesh, must not be consid-
ered a stigma.
III. They must not look for stigmata while the suspect is hang-
ing in torture, lest in her terror at the torture the blood leave parts
of her, or in shock does not flow, since it often stands still even
though a outlet has been opened by cutting a vein.
IV. They must not ignore the doctor’s opinion.
V. An expert person must be present who clearly observes the
executioner’s hand, for if he is diligent he will notice any deception.
Note this above all else.
VI. The executioner must not numb the flesh first or only prick
it lightly with the needle or, as recently a worthless person did, only
pretend to prick it and meanwhile shout that he has found what was
never there. Thus it was not remarkable that no blood flowed from
the accused and he felt nothing.
VII. The executioner must not use a trick needle such as, for ex-
ample, a magic or enchanted one, or one fabricated so that it pene-
trates and wounds when the executioner wants, but only appears
to and retracts into itself when he does not. Such are the knives of
jesters.
VIII. The executioner must not know spells or arts by which he
makes the blood stand still or cause the flesh to go numb, as I under-
stand certain conjurers can. I hear that a torturer was found who
confessed to this and was executed, so I am astonished that we still
have not opened our eyes to it.
IX. The judges must have proven for certain that God would
never permit the devil or witches to burn such marks into the inno-
cent through their malice and arts, but only into the evil.
X. This proof must not be like this: If God permitted it, mis-
fortune would follow, because innocent people would be considered
guilty and executed. For I deny that prudent and skilled people
would consider them to be guilty. Indeed you would argue badly this
way: It is said that innocents would be executed if God allowed signs
to be branded into them. Therefore we may validly suppose that
those branded in this way are guilty. But this is the very thing in
question, so the proof is circular. Why are marked people consid-
ered guilty and executed? Because God does not permit innocent
ones to be marked. However, why does God not permit it? Because
those marked are considered guilty and executed. It is the same kind
Hellyer text 4/14/03 12:54 PM Page 170

170 cautio criminalis

of argument as I will show below in a similar case in Question 48,
Argument 6.
i answer iii. Whatever the case may be, I do not think that
judges should be allowed to proceed to a condemnation on the basis
of these marks until scholars have discussed the matter better and
public authorities determine something for certain. So my remarks
are made in passing for want of a better opinion. Recently a certain
doctor of laws in Cologne wrote some things in which, after I had
studied them, I found much was wanting.* Therefore it was my
intention to summarize the whole force of his text and refute it. But
because I was told that someone else* [marginal note: à Dn. P. Ior-
danaeo in Proba Stigmatica]† had already done it, I let it rest. I warn
once again that deception hides here. The clever should investigate
and perceive it. Only eyes, but wise ones, are needed. Obviously the
devil would be too foolish if he wanted to mark his flock so that it
could be identified and slaughtered. However this may be, certainly
Delrio, in book 5, section 4, indic. 28, and Binsfeld, page 626, whom
judges think highly of and boast about following in other respects,
reject the evidence of stigmata.
Question XLIV. Whether much should be made of denunciations
of accomplices in the crime of magic?
binsfeld treats this question thoroughly in his book De Con-
fessionibus Maleficorum, pages 238ff., as does Tanner in his Theologia,
book 3, disputation 4: “On Justice,” question 5, doubt 2. We follow
Tanner’s opinions; we shall explain the matter by our method and
refute what Binsfeld offers to the contrary. And so
i answer, denunciations by accomplices are considered to be of
great moment according to the common practice of the day, such
that three or four denunciations are ordinarily thought to suffice for
arresting and torturing someone, even a person of otherwise good
reputation, according to certain authors with whom Binsfeld, Del-
rio, and others are in agreement. Nevertheless even if there are very

* Van Oorschot identified this text as Peter Ostermann’s Commentarius Juridicus ad

L. Stigmata C. de Fabricensibus (Cologne, 1629).
† This is a reference to Ioannes Iordanaeus’s Disputatio Brevis et Categorica de Proba
Stigmatica Utrum Scilicet Ea Licitia Sit, Necne. In Qua Pars Negativa Propugnatur
(Cologne, 1630).
Hellyer text 4/14/03 12:54 PM Page 171

question xliv 171

many denunciations, we reject them as being of little weight, falla-

cious, deceptive, and vehemently and validly suspect according to
prudent judgment, and deny that they suffice for arresting and tor-
turing anybody, whether of good or bad reputation, unless other,
more serious evidence is added to them. These are the reasons:
reason i. The authority of very many of the best scholars sup-
ports this opinion. This is what Ancharanus, Alexander, Andreas
de Isernia, Bartolo, Bartazzolus, Bursatus, Cornelius, Cravetta, Feli-
nus, Gomezius, Grammaticus, Marsilius, Menochio, Paris, Raphael
Cumanus, Rolandus à Valle, Socinus Junior, Vincentius Ondedus,
and others think concerning excepted crimes (at least for persons of
otherwise good reputation). For the citations, see the passage I just
cited in Tanner, numbers 31ff., who therefore concludes that not
only is this opinion not new but it is indeed the common one.
reason ii. The Caroline Criminal Code, which must be upheld
throughout the empire, makes no mention of a denunciation by two
or more accomplices when it discusses evidence for witchcraft, which
would have to be there if the emperor had thought that denuncia-
tions had any weight for progressing to torture.
reason iii. If the opinion of our adversaries is accepted, it would
be within the power and arbitrary will of dishonorable and worth-
less people to impugn and denigrate the good name, standing, and
person of virtuous people, which is absurd as well as dangerous for
innocent people, as you will learn well enough from the following
points.
reason iv. Either those women who denounce others truly are
witches or they are not. If they are not, then what can they know
about accomplices whom they do not really have? They are lying
about themselves and others so that they might free themselves from
torture. Therefore these denunciations have no weight if the de-
nouncers are innocent. However, if they are guilty and truly are
witches, then their denunciations have no weight either, for the guilty
must be supposed by their very nature to be liars who have the devil
for their teacher. Therefore their veracity is null, and therefore a
proof based upon their veracity is null. But a denunciation is based
upon this veracity, since it proves nothing unless by the authority or
veracity of the one making it. Therefore . . . The authors of the
Malleus, who are otherwise harsh, acknowledge this, page 512. Since
they had said that some evil mistresses can be retained either to help
Hellyer text 4/14/03 12:54 PM Page 172

172 cautio criminalis

the bewitched or to reveal witches, they added: Nevertheless because
the devil is a liar, a betrayal made by them does not stand, unless other evi-
dence presents itself along with witnesses as well.
reason v. It is the common opinion of all scholars that a denun-
ciation or testimony from witnesses who are disreputable must not
be believed. However all witches are completely disreputable in that
they are witches. Therefore . . .
you will say, following Binsfeld, De Confessionibus Maleficorum,
pages 264 & 266, and Delrio, book 5, section 3, that disrepute is
erased through torture, according to the common opinion of legal
scholars. Consequently they state that an accomplice is not to be
believed unless he makes the denunciation under torture. Therefore,
if a disreputable witch denounces someone under torture, as must
happen, she has been cleared of any disrepute, therefore her disre-
pute does not constitute a valid objection. So that the reader may
understand this, he should know that judges today say that the tes-
timony of a disreputable person is not admissible. Therefore since
anyone who has confessed a crime under torture is disreputable by
the very fact of being a criminal, what he says about his accomplices
should not be believed, unless he is asked about them during a new
round of torture which expunges his disrepute. So the suspect must
endure new torture in order to reveal his accomplices, however pre-
pared he may be to reveal them without torture. This is the judges’
current procedure. But I could not find this cleansing of disrepute
anywhere in the Caroline Code. So I do not quite understand how
torture banishes disrepute, for whatever it is that makes disrepute
cling to someone, it cannot be annihilated by torture, consequently
neither can the disrepute itself. For example, a witch is disreputable
by the very fact or for the reason that she has been detected and has
confessed to being a witch. Will she cease being a witch when she
is tortured? She will not. Therefore she will not cease to be dis-
reputable, for if the cause remains then the effect also remains. Be-
sides that would be a splendid cleansing if torture could so easily
cleanse any disrepute whatsoever. Thus I fear that this axiom com-
mon among legal scholars does not adequately hold up, unless some-
body should teach me otherwise. Simanchas certainly says that the
authors of this opinion speak without law and reason. But perhaps
you could teach in this manner: a disreputable person is not believed
regarding his accomplices because it is feared that he may be lying.
Therefore torture is used to the end that he does not lie. Since tor-
Hellyer text 4/14/03 12:54 PM Page 173

question xliv 173

ture prevents him from lying, it is rightly said that his disrepute has
been removed, because the torture effects that he can be believed,
even if he is disreputable.
i answer that the difficulty is not resolved in this way either.
For if you should torture the witch so that she does not lie, will you
then attain this goal? She could lie just as well after the torture, and
how will you disprove those lies? Indeed, if you believe her after the
torture, then she will want to lie all the more. For she would be stu-
pid if she did not use this occasion to destroy another’s kingdom
rather than her own, when it is equally satisfactory to you whether
she names guilty people or innocent ones, since you are convinced
that she will speak the truth after torture, as she no doubt will have
learned from her teacher himself.
you will say ii. According to Binsfeld, page 306, one may infer
from positive law, as Philippus Cornéus, Philippus Francus, Petrus
de Ancharano, and Andreas Barbatius attest, and reason urges, that
disreputable witnesses may be admitted to testify. Therefore when
necessity demands it, this very law allows disreputable witnesses to
be admitted in excepted crimes, so that the truth does not remain
hidden to the detriment of many, etc. This is Binsfeld’s opinion.
i answer that I reject what this argument assumes, because rea-
son does not urge what Binsfeld says, but rather the opposite. We do
not follow the authors cited or any others, except insofar as they
offer proof. So not only does positive law reject the testimony of a
disreputable person, but natural law does too. However, so that you
may understand this better, I will make a distinction and say that
there can be two kinds of disreputable people. Some are of disrep-
utable life or morals, that is, criminals. The authors are to be under-
stood as referring to these people when they say that according
to positive law disreputable witnesses are to be rejected. There are
others who are of disreputable authority, or defamed and suspected of
lying and perjury. Since it is positive law that rejects those of the first
kind, it seems they can be admitted in excepted crimes and those
otherwise difficult to prove, since it is not inconsistent that a crimi-
nal can be truthful. But I say that those of the second kind must be
rejected absolutely in excepted and secret crimes also, since not only
does positive law absolutely reject these people, but natural law does
too. For even aside from any positive law, the authority of those who
are disreputable in this way is untrustworthy, or at least is thought
to be untrustworthy. However, when authority is untrustworthy,
Hellyer text 4/14/03 12:54 PM Page 174

174 cautio criminalis

whatever is built upon it is also untrustworthy. However testimony
is built upon it, since testimony does not prove except by its author-
ity. Therefore the testimony of such disreputable people is untrust-
worthy. If it is untrustworthy, however, it is validly rejected in the
most serious matters when people’s lives are at stake. Not only does
positive law prescribe it, but right reason dictates it. For indeed it is
against the nature of the matter and thoroughly contrary to reason
that you should construct an argument on the authority or veracity
of someone whose authority you assume is worthless. Furthermore,
since by the nature of the matter and the common interpretation of
all scholars, no type of person bears greater disrepute or presump-
tion of mendacity than those who have been judged to be witches,
that is, disciples of the father of lies, it obviously follows also that
there is no type of disreputable person whose testimony by the
nature of the matter could be less admissible. I am amazed that Bins-
feld did not notice this. However if that great man did not notice it,
why should our inquisitors?
reason vi. The testimony of base, poor people is also rejected
by positive law, as is the testimony of women in criminal trials under
canon law because of the fragility of their sex and the inconstancy
of their minds, cap. forum 10 sub finem de verborum signif. & cap. 16
mulierum 33 q. 5. Similarly the testimony of madmen or fools, etc.,
is rejected by every positive and natural law. But all these things per-
tain to witches, therefore . . . For many of them are base, unlettered
wenches, inconstant, and often half-witted. Therefore they cannot
prudently be trusted, especially to send people to the rack, which
demands clear and almost certain proofs, as I have also taught above
regarding excepted crimes.
reason vii. All legal scholars and theologians teach that the tes-
timony of a hostile person or enemy—read here mortal enemy—
may not be considered or admitted in any crimes, however much
they may be excepted, and this comes from natural law. This is pre-
sumed because he has the desire to harm his enemy and therefore to
lie. I will omit authorities so that I do not pointlessly fill my pages in
a matter no one doubts. But one cannot deny that true witches are
the sworn mortal enemies of the human race and innocent people
and so will not fail to wish them ill and cause them harm, if it is in
their power. Therefore we rightly condemn their denunciations as
being completely suspect. Tanner puts this argument well in elegant
Hellyer text 4/14/03 12:54 PM Page 175

question xliv 175

words: If the accuser’s or witness’s hatred is proven by natural law itself or

presumed by the law, it weakens and crushes the denunciation or evidence.
Why then does the presumed hatred toward all humankind which witches
are thought to bear fixed in their souls, and for which they seem to have
received the name “Unholden” among Germans,* not weaken a denunci-
ation, at least so that alone it is insufficient evidence to torture a denounced
person?
So I do not quite understand what Binsfeld was aiming at here.
For first of all in one place he teaches eloquently that the testimony
of a mortal enemy is absolutely inadmissible even in excepted crimes,
and commends the teaching of Ancharanus, Francus, and Barbatius
that not even the pope can grant a dispensation for an enemy to tes-
tify, since that is rejected by natural law. But then in another place
he does not just admit but forcefully shows that witches are the most
dangerous, mortal enemies of humankind. Yet finally in another place
he once again fights for the admission of their testimony as if for
hearth and home. Make sense of that, if you can.
reason viii. It is the common opinion that if an accomplice in
crime who denounces others should have many flaws, such as, for
example, he is not only disreputable but also servile, debased, per-
jurous, and a gambler, etc., then in excepted crimes he cannot pro-
vide evidence for torture, nor even for arrest, nor even for a special
inquisition. And rightly so, for if the testimony of another is rejected
because of a single failing of this kind, how much more so is it to be
rejected when several reasons for rejection are found together? Yet
who does not know how many of these things converge in witches,
if they truly are such? For they are women of disreputable authority,
they are perjurers who have broken faith in God, they are debased,
perverse women, concubines of Satan, they are enemies of the hu-
man race, they are murderers and heretics and idolaters and hyp-
ocrites, and finally, they have completely embraced every abomina-
tion imaginable.
you will say i. These inconveniences may be remedied by tor-
turing the denouncer all the more often or severely, for just as one
round of torture purges disrepute according to the argument men-
tioned earlier, then many rounds or one much more severe round

* “Unholden” was originally an old German term for spirits that harm people. By
Spee’s time the term had become synonymous with witches.
Hellyer text 4/14/03 12:54 PM Page 176

176 cautio criminalis

will purge the remaining flaws. And Delrio is said to teach this in
appendix 2, book 5, question 17. I do not have it so I cannot read it,
whatever it may say.
i answer. First of all, I really do not know what kind of butch-
ery it would be to multiply tortures or to intensify them in propor-
tion to the wickedness of the witches —my mind shudders at the
thought. However, I have already said that I do not quite understand
how torture purges all these flaws and, as my opponents say, makes
the testimony of witches credible when earlier it was considered
unbelievable. If witches want to lie and destroy innocent people, as
must be presumed of the mortal enemies of the innocent, they will
want to lie equally after torture as before, for they will be equally tor-
tured concerning their accomplices, and the judges will be equally
satisfied after this torture whether their accomplices are real or in-
vented. Indeed if they were presumed to be willing and able to lie
about innocent people before torture so that they might destroy
them, then all the more can one presume that they will do it after
torture, since they know that they will be believed now and whatever
they say will be regarded as an oracle. How are we so blind that we
do not think about these things?
you will say ii. When it is said that one must entirely reject
testimony concerning accomplices if the denouncer is encumbered
with many flaws or crimes, that must be understood to mean if he is
encumbered with many flaws which are not ordinarily joined and
mutually connected to each other. For if those crimes are ordinarily
found joined together, then one must not entirely reject the testi-
mony of such an accomplice, but it can be admitted.
Professor Goehausen provides this distinction or explanation on
pages 99 and 100 of his recently published book, Judicial Procedure
against Witches,* and says that it comes from the Freiburger doctors.

* Hermann Goehausen, Processus Juridicus contra Sagas & Veneficos, Das ist: Recht-
licher Proceß wie man gegen Unholden und zauberische Personen verfahren soll . . .
( Judicial procedure against witches and sorcerers) (Rinteln, 1630). Goehausen
(1592–1632) was professor of law at the University of Rinteln. This work was
widely used by judges and lawyers as a handbook in witch trials. Although Goe-
hausen warned judges that they must protect the innocent, he granted them great
discretion in the repetition, duration, and severity of torture. Like many law fac-
ulties in Germany, Rinteln was often consulted to provide opinions in witch trials.
Rinteln was in general very harsh on accused witches. See Gerhard Schormann,
Hexenprozesse in Nordwestdeutschland (Hildesheim: Lax, 1977), 27–33, 42–44; and
Hellyer text 4/14/03 12:54 PM Page 177

question xliv 177

Whence he concludes that one should not reject witches’ testimony

for suffering from many failings, because these failings are of the
kind normally joined with the crime of magic.
i answer. Whomever this distinction may come from, it is
ridiculous. For
I. It is completely lacking in reason—or if it is not, provide it and
I will agree with it.
II. Why a witness of disreputable authority is unfit to testify,
why an enemy, why a half-wit, why a serf, why a criminal, etc., each
has his own reason either from the nature of the matter or from the
ruling of the law. However, do these reasons then fail if some are
normally joined together? I ask you to show me how. However if
they do not fail, then this distinction is not very appropriate.
III. I will cite such an example: the state detests idolatry, heresy,
theft, sodomy, etc., and indeed all the more vehemently the person
in whom all these coincide. Nevertheless should a witch be detested
less because they normally and always coincide in her and not just
sometimes? Rather she will be detested all the more. Apply the con-
clusions yourself.
IV. I will give you another example: the law states that whoever
steals is to be banished from the city. Likewise he who commits
sodomy and similarly idolatry. Therefore, because Titius has done
of all these things together, it follows that he in particular is to be
banished from the city. You will accept this. However you deny that
a witch is to be banished, because even if she also did all these things
she must nonetheless be exempted, since those crimes are normally
combined with magic. Apply the conclusions and see how absurd
they are.
you will say, one must grant the distinction made earlier be-
tween crimes not normally joined and those normally joined, for the
reason Professor Goehausen provides. He puts it this way in his own
words: In truth this distinction must be granted, because sorcerers are
always tied to crimes of the first kind, which of course are always joined with
sorcery. Therefore if it were necessary that wicked witnesses or accomplices
in this crime be free from other crimes, and in particular those very ones
joined with witchcraft, there would be no suitable witness, and so the law

Schormann, Aus der Frühzeit der rintelner Juristenfakultät (Bückeburg: Driftmann,

1977), 42–55.
Hellyer text 4/14/03 12:54 PM Page 178

178 cautio criminalis

would have permitted criminal and disreputable people to bear testimony
in excepted crimes in vain, suspects would be interrogated about their
accomplices in the crime of sorcery in vain, etc. So he writes.
i answer. This reasoning is completely ridiculous, for its sense,
if you should put it briefly, is this: the distinction I make must be
valid, because if it were not valid, my case would fail and what my
adversary says —that witches are not to be believed at all—would be
true. Wonderful! Furthermore, I will call to mind below, in Ques-
tion 49, Arguments 1 and 3, what this says about the law. Since all
those things which by natural and positive law render a witness unfit
coincide simultaneously in witches, and indeed coincide normally
and always, the conclusion now remains that normally and always
one must completely reject their testimony, and therefore we inter-
rogate the enemies of the innocent as well as half-witted, servile, dis-
reputable, and mendacious, etc., women about their accomplices
not only in vain but also perniciously.
reason ix. If denunciations should become as important as they
are today, the enemy of the human race has found a completely open
door to inflict infinite slaughter on innocent people. For it will be
within his and his followers’ power to overwhelm anyone at all with
denunciations, no matter how innocent they may be, and to deliver
them whenever they want without any hindrance into captivity and
the most severe torture which hardly anyone can endure. For I ask,
what can stand in the way of this? Prisons throughout Germany are
full of prisoners; let us concede that they are all really witches. Soon
they will be strapped to the rack so that they confess their accom-
plices. Their Master knows that those whom he names will be
dragged to the same place. Why, therefore, should he who has been
a murderer from the beginning of time not name those whom he
most wants to die? Could even he fashion for himself a more conve-
nient way of raging and causing harm throughout Germany? I often
laugh at the simplicity of many judges today. For often when they
require a priest for the prisoners and seek to shape him to their
spirit, they first warn, instruct, and continually impress upon him
how great the prisoners’ malice is, how they have a thousand lying
arts prepared and at hand, how their eloquence is ready for every
falseness and deceit. The judges tell him to beware lest he believe
them and allow their feigned sanctity to deceive him. They say that
it is nothing to the slaves of the devil to profane the sacrament of
confession by lying, that they had the most wicked teacher of all,
Hellyer text 4/14/03 12:54 PM Page 179

question xliv 179

who can trick even the most prudent and cautious men, and similar
things. These words aim at annulling the confessor’s trust in the
prisoners, in case some of them reveal something to him by which
he might arrive at their innocence as if by following footprints. As
long as they are liars, perjurers, tricksters, and deceivers, they can-
not be believed at all. Only when it comes to naming their accom-
plices under torture do they immediately strip off their nature and,
suddenly bored with their arts, change from liars into truth tellers,
totally frank, sincere, without tricks, who accuse only witches and
the truly guilty and are indifferent toward the innocent. Terrific!
What a charming and merry matter! We do not have to fear any
deceit, there will be no more danger, they cannot lie any more. The
Ethiopian has changed his skin. Proceed, Inquisitors, seize those
denounced, there is no doubt they are guilty, tie them down and rack
them until they confess; if they do not want to, burn them alive as
obstinate, for they are guilty. The devil said it, and he said it under
torture. O Germany, what are you doing? The judges fear that apos-
tolic men who shall judge angels are deceived by witches yet they
do not fear that they themselves may be deceived.* They say that
witches, the worst of all deceivers, lie even in the sacrament of con-
fession, but only on the rack do they speak the truth, there they can-
not deceive. How perverse and ridiculous is this? I am amazed that
Germany’s rulers, surrounded by so many advisers and wise men,
have not yet noticed it. Why should the devil not do whatever he
pleases and savage whomever he wishes? Behold once again where
we get so many witches from!
you will say i. Judges do not conduct trials today on the basis
of denunciations alone, but only if other evidence also supports
them.
i answer. What you say here is false. For usually, or certainly
very frequently today, they try on the basis of denunciations alone. I
will prove it with this enthymeme:† most try on the basis of denun-
ciations and rumor, therefore they try on the basis of denunciations
alone. The antecedent is clear, since everywhere is completely full of

* 1 Corinthians 6:3: “Do you not know that we are to judge angels? How much
more, matters pertaining to this life!”
† An enthymeme is a less rigorous form of the syllogism often used in rhetoric in
which one of the premises is merely implied. Here it is “Rumors have no weight
for conducting trials.”
Hellyer text 4/14/03 12:54 PM Page 180

180 cautio criminalis

examples of it. Therefore the consequence must be proven, which I
will show this way: I have already taught above, in Question 34, that
rumors currently are nothing other than worthless chatter and,
moreover, are hardly ever legitimately proven in court. Therefore,
they are invalid and null evidence according to positive and natural
law. However if they are null, then when judges try on the basis of
rumor and denunciations, then they are in fact trying on denuncia-
tions alone. Moreover, even if we should grant that rumor nowadays
is not entirely null but is always legitimately proven in courts, nev-
ertheless I ask the judges, what are they thinking? Is everybody
guilty who is accused on the evidence of an evil rumor alone or
something similar? They will not admit this, so what then? Do they
admit it as soon as the authority of the devil is added, that is, testi-
mony drawn from the authority and veracity of the devil and his
slaves? Now do they consider the prisoners’ guilt to be certain? And
indeed so certain that whatever tortures the denounced endure,
whatever they offer in their defense, whatever they steadfastly deny,
etc., they must by hook or by crook be guilty? For this is the prac-
tice today. From this I infer that it is still in Satan’s power to lead into
danger all those at least who can be defamed or become suspect
through some similarly insufficient evidence as soon as his followers
hurl their denunciations. It is easy to estimate from this how much
slaughter the devil has so far devised for us. For he would be lazy if
he allowed this opportunity to slip away without profit.
you will say ii. But at least if the denouncers repent, their
denunciations are not to be discounted nor the aforementioned dan-
gers feared.
i answer. They must still be feared and their earlier denuncia-
tions still discounted, as I will show more fully in the following
Question.
Question XLV. Whether denunciations should at least be believed
because of the denouncers’ repentance?
i answer, some people argue in response to the points we ar-
gued in the preceding Question that they should be believed, but
they do so in vain. These are the reasons:
reason i. Today denunciations are made and entered into the
records before anyone speaks to the denouncers about conversion
and repentance. For current practice is such that hardly any clergy
are present until the trial has been settled in the external court.
Hellyer text 4/14/03 12:55 PM Page 181

question xlv 181

Therefore, it is in vain to offer the witches’ penitence as a reason for

not discounting their denunciations, for all their denunciations pre-
cede their penitence. If only they were ordered to name their ac-
complices once they had sincerely returned to God, and indeed not
those whom the rack twisted out of them, but those whom their con-
science suggested. Then, perhaps, I could put some faith in the de-
nunciations, and either I am greatly mistaken or we would soon have
a very small number of witches. I know what I am saying, even if it
is still necessary to remain silent about many things. So I have always
had no little admiration for Tanner, that most prudent of theolo-
gians, who swiftly adds this to the means by which witches can be
extirpated: suspects may not be questioned about their accomplices
until after they have received their death sentence and, ministered
to by a confessor, are penitent and prepared to die well, as he writes
in disputation 4: “On Justice,” question 5, doubt 5, number 131. But
to what end this method? The inquisitors will never adopt it and the
rulers will never order it. The inquisitors will not adopt it for they
will cheat themselves out of profit by reducing the number of peo-
ple to try; the rulers will not order it because no one suggests it to
them and they themselves will not read this book.
reason ii. However, not only is what I said true, namely that
today denunciations are eagerly listened to and recorded even be-
fore the prisoners have repented, but also that the judges only grant
validity to denunciations made by unrepentant people. So if prison-
ers should disclose something concerning their accomplices when
they have been judged by their confessor to be truly repentant and
properly prepared for death, the judges believe or reject it only to
the degree that it agrees with or dissents from the denunciations
they made before their repentance. Indeed these cunning people
test whether someone is truly repentant or not with the denuncia-
tions they made when they were as yet unrepentant, as if with a
Lydian stone.* For example, if after receiving the sacrament of
penance Titia approves of and ratifies the denunciations that she dis-
closed while still unrepentant, then for the judges that is a sign of a
true conversion; she is not falsely repentant. But if she recants and
declares that she was compelled by the torture to lie, then she was
deceitful, she tricked her confessor, her repentance is false, or con-
fused by her fear of death, and therefore her earlier denunciations

* The touchstone that tests the purity of gold and silver.

Hellyer text 4/14/03 12:55 PM Page 182

182 cautio criminalis

are to be upheld. Truly ingenious! Whatever happens, whether Titia
ratifies or recants after the sacrament of penance, the judges always
get what they want. If she ratifies, her first denunciation was true,
because a truly repentant woman ratifies. If she recants, there is
no harm done, because she was not truly repentant. That is what
the judges say. Naturally they do not notice that neither case holds
up. For
1. When they admit that Titia has truly repented if she ratifies
her earlier denunciation, they are arguing in a circle. For they say
that the denunciation was true because the repentance that ratified
the denunciation was true. But they infer that this repentance was
true because it ratified the denunciation which was true. Thus the
denunciation causes the trust in the repentance, the repentance
causes the trust in the denunciation, which is to reason in a circle.
2. With the same facility and authority with which they say that
Titia’s repentance is false when she recants her earlier denunciation
but that it is true when she ratifies it, I may state the opposite,
namely Titia’s repentance is false if she ratifies an earlier denuncia-
tion made in a state of impenitence, but it is true if she recants it.
Besides, the matter is clearly ridiculous if the judges shout that she
is truly repentant when she says what they like, but that she repented
falsely when she says what they don’t like. What wise man is not out-
raged by this, for it is completely nonsensical?
3. Even if they should deny that Titia was truly repentant when
she retracted a prior denunciation, this is of little help to them, for
she was not repentant either when she first made the denunciation.
That is enough for me, since what I wanted to prove is left: that the
denunciations were made by witches who had not yet repented and
therefore are to be rejected as still being diabolical and fallacious.
reason iii. Indeed even if it were the custom today (which will
never happen) that in accordance with Tanner’s counsel denuncia-
tions are first heard after repentance and the reception of the death
sentence, even if it were also the custom today among most judges
that denunciations do not stand unless they are ratified after repen-
tance, nevertheless I still say that wise men would validly reject those
denunciations. Could not a wise man validly doubt that this repen-
tance was false? For
1. The inquisitors shout that above all else the devil drives his
slaves as vigorously as possible to commit the most serious crimes
Hellyer text 4/14/03 12:55 PM Page 183

question xlv 183

which are unheard of throughout the centuries. If it is true (about

which I will say more elsewhere), would it be amazing and unbe-
lievable if he urged them to feign repentance?
2. It is an everyday event, as I said a little earlier, that whenever
the accused retracts what she confessed under torture, the judges
exclaim that she is deceiving her confessor and feigning her repen-
tance. Therefore they themselves quickly judge well enough that
these suspects are greatly given to pretense and deceit. Therefore
with good reason any wise man will also be suspicious when they
make or ratify denunciations after they repent.
3. That the confessor judges that Titia, for example, is truly re-
pentant does not prevent this. For as those judges against whom I
am arguing openly admit, the confessor should not be listened to in
the court of conscience. If Titia should retract what she confessed
under torture, even if the confessor should say that she is truly pen-
itent, the judges nevertheless will say, as we have seen, that he has
been deceived, that Satan is the most cunning of all and master of a
thousand arts, that the hypocrite must not be trusted. Therefore,
wise men will say the same thing when Titia ratifies her denuncia-
tions and will claim the same right to use the argument for their pur-
poses as the judges do for theirs. In the end it will be impossible to
ever know for certain whether Titia repented truly or falsely, for
who will be the judge of this? The confessor? But the judges, as we
have already said, do not grant this. They themselves, then? But the
Church certainly would not grant them this in that particular court.
4. There is no shortage of strong reasons why Titia should want
to pretend to be penitent and why the devil should want to compel
her to pretend. Titia sees that it is all over for her, but if she could
nevertheless feign repentance, she can hope for an alleviation of her
punishment. She also sees that she can lead innocent people into
danger (a desire she shares with the devil), and she can effectively
avenge herself by her denunciations, which, strengthened by the seal
of repentance, will increase the princes’ zeal for slaughtering in-
nocents with greater certainty and less doubt among the judges.
Therefore, these enemies of the human race will seize their oppor-
tunity and try to dress up their denunciations in fake sanctity (so that
they do not appear feeble) with the same lust for harm with which
they denounce innocents. Finally, this is always the pinnacle of it all:
a trial conducted by such judges rests upon the authority and verac-
Hellyer text 4/14/03 12:55 PM Page 184

184 cautio criminalis

ity of the devil, and they are not deceived only to the extent that he
who is described in the Holy Books as the artificer of all deceit and
falsehood does not deceive them.
reason iv. Indeed, even if I should concede (for I do concede it)
that a particular witch has sincerely returned to God and is truly
penitent, nevertheless I would not dare to trust her denunciations
in such a serious matter because she could be mistaken, or because
she can hardly dare to do otherwise, or because she does not know
otherwise, as I will explain in the following Question.
Question XLVI. Whether denunciations should at least be be-
lieved if it is infallibly certain that the denouncers have truly re-
pented and want to say the truth?
i answer, in the end this could appear to be the case, but it
would not seem to be so to me or to any wise man who wishes to
consider it carefully. These are the reasons.
reason i. Judges usually call women back in to torture if they
recant their earlier denunciations. And, it must be carefully noted,
the executioners generally threaten them with torture and, with that
singular passion for extirpating weeds by which they are driven, they
intentionally forewarn the women about it so they are not ignorant
of it. Therefore, even if Titia, for example, has truly repented and is
sincerely penitent, nevertheless she would not dare not to ratify her
earlier denunciations. So if she does ratify them, it does not neces-
sarily follow that they are therefore true. Since human weakness is
great, a truly penitent person can dread intense pain and continue to
lie out of fear.
It is incredible how many examples of this I have at hand, and
how many people die because of these sorts of completely false re-
ports, which are extracted through the violence of torture yet remain
unrecanted. Those who have never tasted torture do not know how
those who have dread it above all else. Because of this very few
women can be induced to steadfastly recant all their false denuncia-
tions. Therefore they merely retract some of them, so that they
might thereby relieve their consciences as much as they can and at
the same time avoid a repetition of their torments, which they will
not escape unless they leave at least one or the other denunciation
unrecanted. Nevertheless, the reader will easily perceive once again
how much evil the remaining ones cause, since judges everywhere
conclude from them that this or that woman’s guilt is all the more
Hellyer text 4/14/03 12:55 PM Page 185

question xlvi 185

certain, since her name was not retracted along with the others.
Therefore she must be punished all the more savagely if she should
deny it. There is danger in this matter on all sides, and I do not want
to spin it out any further, provided that it is clear that Titia can be
truly repentant yet, out of her fear of suffering torture again, leave
unrecanted false denunciations which she made earlier. Oh! how they
will all pay the penalty, not just judges but also judges’ confessors,
who do not pay attention to this and, despite being warned by my
clear words, not only do not use their intellect to investigate it but
gnash their teeth at being instructed!
reason ii. However penitent a denouncing witch may truly be,
and however infallibly that may be established, and however truth-
fully she may want to denounce others, nevertheless her denuncia-
tions may be no less deceptive because of the danger that the witches
are themselves being deceived. For it is well established, and even
granted by my adversaries, that witches are not always actually
transported to their covens and sabbaths but merely in their imagi-
nation alone. So when the devil arouses various phantasms either
himself or through the use of natural medications, they think that
they were, saw, and did what has never been seen or done anywhere.
This happens with them just as with those who are deluded in their
dreams by images and not real things. There are examples of this
which I will omit for the sake of brevity because they have been
spread around everywhere and noted. Indeed Tanner teaches in his
Theologia, book 1, disputation 5, question 6, doubt 7, that it is ex-
tremely credible that witches enjoy fantastical flights and sabbaths of
this sort more often than real ones. Once this is established, who
does not see that these reports are necessarily deceptive, however
sincerely the denouncers have repented and do not wish to deceive?
For how does the judge know whether these and those denouncers
are not of that class of witch who are deceived by the devil’s mere
phantasms and therefore think that they have been and seen where
they have not been and seen. They themselves cannot distinguish
with sufficient certainty between phantasms and real things. They
swear that they were where they were not. There are well-known
examples where people inquiring into these things were present
along with witnesses and kept witches of this kind secured with
leather straps in front of them. Nevertheless, often when the witches
had slept out their dreams, they insisted they had been at their sab-
baths and had done incredible things there. So they thought that
Hellyer text 4/14/03 12:55 PM Page 186

186 cautio criminalis

something they had experienced only in their imagination was true.
In the first edition of his Natural Magic, the Neapolitan Baptista
Porta narrates such an experiment which he carried out.* But you
say that it is amazing and unbelievable that somebody could not
know how to distinguish between those things which he really expe-
rienced and those in his imagination, for even if we are sure we are
awake in a dream when we are actually sleeping, once we wake up,
however, we can perceive quite clearly that we were only sleeping. I
answer that ordinarily we can distinguish adequately between dream-
ing and waking when we are awake. However, I deny that it is unbe-
lievable that it could happen otherwise, or that the devil, who is mas-
ter of a thousand arts, could not confuse his slaves, the witches, so
that they cannot distinguish between true and false, especially since
many of them are delirious women to begin with or are disposed to
delirium by the nature of their sex, so that this craftsman can work
his wickedness all the more easily in such suitable material. However
that may be, I advise the princes to examine their judges and order
them to reveal the signs by which they were convinced for certain
that all the women they have so far interrogated concerning their
accomplices and executed were not of the kind who were merely
transported to sabbaths fantastically. For unless they first convince
themselves for certain of this foundation, they certainly cannot base
any trials on it in such a serious matter. If they conducted trials any-
way, then they did so quite wrongly and contrary to reason. Behold
the integrity of our judges! Not only do we not note these things
in the transcripts, but we do not think about them unless we are
warned about them, and when we are warned we do not perceive
them, except most reluctantly.
reason iii. But even if we assume that the judge is certain that
the denouncers are of that class which was actually, and not just fan-
tastically, transported and met at the sabbath, nevertheless he still
cannot prudently rely on their denunciations. For in order for him
to rely on them prudently, he must establish not only that Titia, for
example, is not lying when she says that she saw Gaia at the sabbath,
but also that the following is a correct conclusion: Titia saw Gaia at

* Giambattista della Porta (1535?–1615) was a Neapolitan nobleman whose

widely read Magia Naturalis (1589) treated material ranging from optical experi-
ments to plant hybrids to cosmetics.
Hellyer text 4/14/03 12:55 PM Page 187

question xlvii 187

the sabbath, therefore Gaia really was at the sabbath. For how does
the judge know that the devil was not representing Gaia there per-
haps, so that Titia thought she was present when actually she was
very far away? Since there can be some difficulty in this matter, it
should be treated in more detail in the following Question.
Question XLVII. Whether the devil can represent innocent peo-
ple at witches’ sabbaths?
i answer, it seems so and indeed not only motionless people, as
some readily acknowledge, but also those dancing around with all
the others. These are the reasons:
reason i. Examples teach that it has happened. Therefore it can
happen. I know of a monastery where it happened and is related in
its records, as I will now recount. Many witches accused a particular
monk of this monastery of being seen at the sabbath. They also
named the person with whom he had danced, and moreover they
died steadfast in their accusation. Nevertheless the testimony of the
entire monastery affirmed that at the time he was supposedly there,
he was present with the other monks in the choir and actually en-
gaged in the divine office. Either the denouncers had lied (which I
consider is what usually happens), whether through the violence of
the torture, as is the usual case with innocent people, or through
malevolence, as is the case with guilty ones, or if they had not lied
(as the judges suppose), they took an image to be the thing itself. I
can name others, saintly men still living today and even princes whom
many have confessed to have seen at their dances. Other cases have
been publicized, which I shall omit because they are well known and
would merely fill up my pages, in which people who were also said
to have been seen at sabbaths not only were in another place at that
particular time but were also guarded by witnesses so they could not
have been absent.
reason ii. The devil can transform himself into an angel of
light, as Scripture testifies,* and there are examples of this every-

* 2 Corinthians 11:12–15: “For such men are false apostles, deceitful workmen,
disguising themselves as apostles of Christ. And no wonder, for even Satan dis-
guises himself as an angel of light. So it is not strange if his servants also disguise
themselves as servants of righteousness. Their end will correspond to their
needs.”
Hellyer text 4/14/03 12:55 PM Page 188

188 cautio criminalis

where in the lives of the saints. Therefore the devil can also repre-
sent innocent people, especially since it is not unbelievable that God
permits him to do many things.
reason iii. The arguments for the opposing opinion do not
sufficiently prove the contrary, therefore one must validly and pru-
dently adhere to our opinion and not believe the other one. Note
that it is not incumbent on my conscience, which affirms that the
devil can represent innocent people, to completely prove my opin-
ion for certain, but in this case it is incumbent on the consciences of
the other side, who deny it. The reason is that it matters little to me
whether the devil can do it or not. For I do not want to undertake
anything against anyone based on either assumption, but only to
take up the work of proving this point as an intellectual exercise or
out of a desire to warn others. In doing this, even if I do not prevail
or sufficiently prove my case, I do not create any danger or harm for
another. But when the other side proceeds as if their opinion is the
foundation for decisions about human life and death, it is necessary
that they establish this foundation solidly, unless they want to pro-
ceed rashly in such an difficult matter. Therefore, unless they have
proven it with valid arguments, it can by no means stand in their
conscience. Indeed, in this case when they deny that the devil could
do it, proof is required not only in their conscience but also accord-
ing to dialectics. Even if it is customarily said that it is the task of the
affirmative, not the negative, to prove, nevertheless (as the reader
may learn in passing here), since the affirmative here is understood
to be the one who proposes, then if someone proposes some propo-
sition as the truth or some kind of foundation upon which he wants
to build something further, it is necessary for him to prove that
proposition, whether it be affirmative or negative. Thus, when my
adversaries first propose the negative proposition that the devil can-
not represent innocents, and then base trials upon it, they them-
selves must prove that negative opinion, since they are the affirma-
tive in this case, that is, those proposing or introducing. Otherwise
they would be unjust in supporting themselves on a foundation
which they had not constructed solidly. It is sufficient for us to offer
reasons for doubting them. Likewise, it is sufficient that there are
people in the world not completely without any learning who
greatly fear that with God’s permission the devil can and does rep-
resent innocents. It is sufficient also that we warn the judges on this
matter. Now if they themselves nevertheless want to proceed with
Hellyer text 4/14/03 12:55 PM Page 189

question xlviii 189

the most severe tortures against whomever they want in matters of

life and death, then either they must prove this foundation with
arguments a wise man finds worthy, or they cannot be excused.
Therefore let us see how compellingly they prove their reasons.
Question XLVIII. What are the arguments of those who strive to
prove that the devil cannot and does not want to represent innocent
people at dances?
i answer, Binsfeld, to whom Delrio refers, collected these ar-
guments. I ought to admit that I have wavered considerably on how
reliably he discusses matters of magic. Although we are referred to
his arguments, I have never yet been able to find a single solid one
among them, as will soon be established through a refutation of
them. So I will list Binsfeld’s arguments in order, except I will take
the first one from Delrio.
argument i. It cannot be described how a certain confessor to
witches, who in other respects was not particularly skilled, recently
exulted in the words of Delrio when he recited them from his book
in this way: Demons could appear at sabbaths having assumed the shape of
innocent people if God did not prevent it. But I have not yet read or heard
that he has in fact permitted it in the crime of witchcraft. So he writes in
book 2, question 12, number 5. Then immediately afterward simi-
larly: If God does allow it, he immediately reveals the deceit, or he permits
it for the sake of the remission of other sins, either for greater merit or for
the glory of suffering. From which that confessor said, Look, Delrio has
never read or heard of this? Who then can believe that it has happened?
i answer i. This argument proves too much and thus nothing
at all. For it proves that an infinity of other things that have truly
happened have not happened, because Delrio never read or heard of
them. Certainly I and many others along with me have read and
heard of it.
i answer ii. Every day inquisitors wrench confessions of new
tricks and unheard of crimes out of the witches through new tor-
tures and blather wonderfully about them before the princes and the
common people. What if I should use the argument just mentioned
and deny all those things because Delrio has not read or heard of
them—what would my opponents say then? Clearly they would be
outraged and contend that God allows new things every day. Why,
then, do they not grant me that among so many new unheard and
unread of things, God also allows the devil to appear at sabbaths
Hellyer text 4/14/03 12:55 PM Page 190

190 cautio criminalis

with these images? I would say that this also is one of those new
things.
i answer iii. When those seen at sabbaths are denounced, they
are considered to be certainly guilty and to have certainly been there
physically. They are tortured for a long time until they confess, and
if some withstand the tortures and do not confess, then they are nev-
ertheless burned alive as obstinate, for they all must simply be guilty.
Therefore is it astounding if Delrio did not read or hear that inno-
cent people appeared at sabbaths?
i answer iv. If you should object that it does not happen as I
have said, but that those who do not confess under torture are re-
leased in accordance with the law and are not burned, then once
again this helps me. For those who are released have been judged to
be innocent, therefore it is not unheard and unread of that innocent
people have appeared at sabbaths. Therefore this argument does not
prevail at all.
argument ii. The devil has no desire to make images of this
kind. Therefore . . . The antecedent is proven because it is evident
to him from the Holy Scriptures that God does not allow his chosen
people to be afflicted or tempted, except for the sake of their merit,
testing, and good. So Binsfeld writes.
i answer i. This argument proves too much and thus too little,
for clearly it could be proven with the same words that the devil did
not strike Job from his head to the sole of his foot,* nor finally that
he ever effected the exquisite pains and deaths of any of the martyrs
through his arts. For I could say with just as many syllables: The devil
does not desire arts of this kind; it is evident to him from the Holy Scrip-
tures that God does not allow his elect to be afflicted and tempted, except for
the sake of their merit, testing, and good.
i answer ii. Not all whom the devil represents are among the
chosen, some may be evil and worthless and judged to be in mortal
sin, even if they are not involved in witchcraft, so they are innocent
in that sense at least. Therefore, even if the devil does not desire to
represent the chosen because of the reason provided above, it is not
necessarily proven that he does not desire to represent innocent
people. Therefore this argument does not prevail at all.
argument iii. This doctrine that the devil cannot represent

* Job 2:7: “So Satan went forth from the presence of the Lord and smote Job with
severe boils from the soles of his feet to the crown of his head.”
Hellyer text 4/14/03 12:55 PM Page 191

question xlviii 191

innocent people gains its greatest strength from the consciences of

the innocent, says Binsfeld. For what innocent person conceives of
or is troubled by any fear that the devil will represent her among sor-
cerers and witches? Otherwise, if the devil could do that, then all of
us would always be in fear and trembling that we could be trans-
ported into fables and tragedies in which the welfare of our bodies
and souls was exposed to danger. But good consciences do not fear
this at all. Therefore . . . So Binsfeld argues.
i answer i. This argument proves too much and thus nothing
at all. For with the same words it could be proven equally well that
innocents cannot be, nor actually are, enchanted by witches and
made miserable for their entire lives by spells. I will prove it this
way: what innocent person conceives of or is troubled by the fear
when she gets up in the morning that on that day she will be en-
chanted by witches? Otherwise, if witches could do this, then all of
us would always be in fear and trembling that they will breathe some
spell upon us which will make us miserable for our entire lives. But
good consciences do not fear this. Therefore . . .
i answer ii. Innocent people are secure and without fear, not
because they all believe that the devil cannot represent them or that
he never does it, but because they believe that it will not harm them
even if it does happen. The reason is that they suppose that impru-
dent and confused judges, who conduct trials on the basis of denun-
ciations made by diabolical people and put more trust in the devil’s
worthless slaves who accuse them than in the integrity of their own
character which excuses them, would never sit on the tribunals.
i answer iii. Where judges rashly investigate sorcerers and
share Binsfeld’s opinion, which we mentioned, so that they think
that they can conduct trials on the basis of this nonsense, I deny that
innocent people have no fear for their lives. This is completely false.
I know many very good and conscientious men who vehemently
dread these trials, and several to such a degree that they have moved
their homes elsewhere. I know some who have consulted me and
others about this very matter. I know of some who, after they went
to a neighboring city to seek advice and make a general confession,
were arrested when they returned the following day on the basis of
this evidence. Supposedly they had been getting ready to flee but
were not able to when God the Avenger confused them and dragged
them back. If they should want to testify to the contrary, they are not
allowed to. I know that some have already thought about the stories
Hellyer text 4/14/03 12:55 PM Page 192

192 cautio criminalis

they will fabricate so that their lies will appear plausible if they are
arrested and forced by their torture to say that they are guilty and
that they are not strapped down again on the rack if there are any
inconsistencies. I know what advice I have given to many in these
matters of conscience concerning the extent to which it is permitted
to lie without sin against oneself or others under torture.* So cer-
tainly in many places remarkably many good people live in fear.
Thus this argument of Binsfeld’s amounts to nothing, except that it
helps me against him, for I will conclude this way: if Binsfeld had so
little experience or thought in these matters that he was truly igno-
rant of things that were known everywhere, what authority should
we grant him and similar learned scholars in such matters? Let them
sit in their studies and send us their nocturnal theological ramblings,
as they have done so usefully up until now. However, I ask that men
of such authority should not participate in the trials of suspects un-
less sometime at least they incline their authority to the ears of the
incarcerated and depart stuffed with the filth of the prisons, which,
as I know through experience, usually arouses our spirit and ideas so
that we do not philosophize in any way other than mildly.
argument iv. What has never happened and does not happen
according to the usual course of things must be judged to be unable
to ever happen, if misfortune would follow the event. But never, or
very rarely, do we hear from steadfast and persistent confessions that
innocent people have been represented at sabbaths, but rather we
always learn through experience that those who were represented
there were actually guilty of a great crime. So writes Binsfeld.
i answer by denying the minor premise. For how does Binsfeld
know that innocents have never been represented, accused, and exe-
cuted? How does he know that all those represented and accused
were actually guilty of a great crime? Is it from steadfast confessions,
as he says? But how does he know that all these confessions were true
and not extorted by fear or the violence of the interrogation? But it
is already well established that there are many who lie about them-
selves; how does he know that those prisoners upon whose steadfast
confessions he supports himself are not numbered among those who
lied? Woe to her who has once immersed her foot in torture—she

* As an experienced confessor and professor of moral theology, Spee would have

known that in certain extreme circumstances it is permitted to commit acts that
would normally be considered sins.
Hellyer text 4/14/03 12:55 PM Page 193

question xlviii 193

will never be able to take it out again but rather will confess to every-
thing the inquisitors can think up. Here the third response given
above to the first argument, which you should reread, is relevant.
Therefore I often think to myself that the only reason we are not
all sorcerers is that torture has not yet touched us. Recently, while
drinking, a great prince’s inquisitor dared to boast with complete
truth that if the pope himself fell into his hands and tortures, he
would without doubt eventually confess that he was himself a sor-
cerer. Binsfeld would do the same, I would myself, all the rest of us
would too, with the exception of a few of the most hardy people.
Therefore this argument does not prevail at all. However reread, as
I have said, the third response given above to Argument 1.
argument v. If the devil can represent the innocent at witches’
sabbaths, he could also represent them in the form of murderers,
adulterers, or fornicators, since he greatly desires the ruin of all in-
nocent people. Therefore, whoever is accused of murder, banditry,
robbery, or adultery could deny the accusation and say he was free
from guilt because the devil had transformed himself, taken the
accused’s face, and performed the evil deeds himself, etc.
Binsfeld says that those who suffer from a pressing conscience or
frequent blinding passions cannot loosen the knot of this argument.
i answer that when Binsfeld completely passes over those who
are of our opinion as if they were suffering from blinding passions
and a pressing conscience, he does so without foundation. Mean-
while, if those who cannot untie this knot suffer from passions, we
certainly do not suffer from them, since we can untie it. For we say
that what he alleges is entirely dissimilar to our present case. I will
show it in this way. Let the reader pay attention and understand.
Let there be some place where at certain set times various ghosts
appear and portray marvelous tricks and various human inclinations.
However, if Sempronius then accuses Gracchus, claiming he ob-
served him committing a murder at that very time in that very place,
then any prudent judge could then doubt with sufficient reason
whether it really was Gracchus or merely an empty specter in his
place. Furthermore, the judge would act absurdly if he decided to
subject Gracchus to torture on this basis alone without any further
evidence. Yet it is the same in our case. For our adversaries previ-
ously said that the devil has set places and times at which he cele-
brates holidays, sabbaths, and dances with his witches. They also say
that he deceives the eyes of his lackeys with various representations
Hellyer text 4/14/03 12:55 PM Page 194

194 cautio criminalis

and forms, now this shape, now that, of a man, of a woman, a soldier,
a maiden, a youth, a goat, a lion, etc. If any are absent from the
sabbath, as my opponents admit, he himself fills their place. Many
things are really done there, however many more fictitiously. They
think that they eat and drink delicacies, that they sleep in ivory beds,
etc., when all they did was feed on a corpse, drink a chamber pot,
and rest under the gallows. I will omit all the other illusions which
are so normal in these rites that the infernal actor seems to do noth-
ing but indulge himself in fabricating mere ghosts, specters, and
false images there. Since all those against whom I am arguing admit
that things are like this (for what I myself think about those sabbaths
I will state elsewhere), whoever will be a judge may prudently doubt
whether the devil’s license in his faculty of fabricating all kinds of
specters in these places does not extend also to the fabrication of
other people, especially those living in mortal sin. Then, when some-
one is said to have been seen in these places at that time, the judge
may prudently doubt whether the person himself befell the witness’s
eyes or merely a vain ghost. But if someone is seen stealing, con-
ducting banditry, committing adultery, etc., in any other place where
there are no such illusions or phantasms, it hardly follows from this
that I should then suspect that I am also being deluded by a specter.
For the cases are completely different. From these points it becomes
very clear that there is absolutely nothing in Binsfeld’s argument,
which he himself thought was irrefutable, and that he incorrectly
argued that we have our eyes closed, for he said that we could not
see those things which he thought he himself could see in the argu-
ment conveyed above. We could answer him in another way, but
what we have responded here suffices and renders the force of his
argument sufficiently impotent.
argument vi. God would never permit the devil to represent
innocent people at sabbaths, therefore he cannot do it.
i answer by denying the minor premise. How are my adver-
saries so certain that God would not permit it? God allows many
more serious things, as we have taught above, namely the deaths of
martyrs and infants, the desecration of the sacred host, and similar
unspeakable matters. Moreover God permits the devil to display the
images of various people in mirrors as well as in water, oil, and other
media, when curious people everywhere approach soothsayers and
diviners and ask them who committed the theft in their house, who
drove their horses away, who infected their cattle with witchcraft,
Hellyer text 4/14/03 12:55 PM Page 195

question xlviii 195

who will be their daughter’s husband, who will be the first in the
family to die, and other questions of this sort which are all too com-
mon and well known, in which nevertheless the devil often deceives
them and persecutes innocent people with false evidence, as is well
established. I know a virtuous man, learned and pious, and of un-
common beauty, for whom a brazen woman—and a witch at that—
began to burn with an insane, lustful frenzy. Since she was not able
to obtain her desire by any method of temptation, she comforted
herself as best she could by receiving the devil as her concubine and
always in the form of that man, as she herself then confessed to
him—unless she deceived him in this too. So why can the devil rep-
resent innocents elsewhere but not at his sabbaths and rituals?
you will say, if it were permitted for the devil to represent the
innocent at sabbaths, then this would cause great harm to a third
party (as someone recently told me) and would flood the state with
much too great misfortune.
i answer i. Let this be so, but why are you convinced that God
does not permit those things which cause harm to a third party and
from which great misfortune floods the state? God permits the devil
to transport witches, to supply them with drugs for witchcraft, and
similar things, which none of my adversaries disputes. Do no mis-
fortunes arise from that? How ridiculous is this argument? There-
fore unless it is established some other way that God does not per-
mit representations of the innocent in those diabolical games, one
denies it in vain and without good judgment.
i answer ii. I deny what is assumed here. For what misfortune
will flood the state from those representations? Is it that innocent
people will be considered guilty? That they will be tortured? But I
answer that I deny that they are considered guilty and tortured by
wise and prudent judges, although I do grant this is the case with
imprudent and foolish ones. Beyond this, however, my adversaries
reason badly. They say that misfortune will befall the innocent peo-
ple represented at sabbaths, namely that they will be taken for guilty
and tortured. Therefore they presuppose that people represented in
this way will be regarded as guilty when this is the very thing in
question here, namely whether those represented in this way ought
to be regarded as guilty. So they are arguing in a circle. Why are
those seen at a sabbath validly considered guilty? Because God does
not permit the innocent to be represented there. Why, however,
does God not permit it? Because misfortune follows, since those
Hellyer text 4/14/03 12:55 PM Page 196

196 cautio criminalis

seen there are regarded as guilty. See how little attention my adver-
saries pay to dialectics today! [NB in margin] A because B, and B
because A. Has no one recognized this circle until now? There are
still learned men, even regular clergy, who use this circle and lead
rulers and princes into error and then never lead them out again, nor
do their superiors, who are equally ignorant about everything, re-
strain them. Moreover what Binsfeld wants to claim, namely that it
is a privilege of the children of God that such a thing is not permit-
ted, has been refuted above in Question 10, where you may reread
it. I certainly should insert here what recently happened in a well-
known place in Germany where almost everything burned to ashes.
The prince summoned to his table two regular clergymen, men of
acknowledged virtue and learning. During the banquet the prince
said to one of them, “My father, do you think that we have so far
acted justly and fairly when we drag people off to the rack who have
been denounced by ten or twelve witches for appearing at sabbaths?
I greatly fear that the master of a thousand arts deceives his lackeys
so that we are not paving a safe path to the truth with these denun-
ciations, especially since some of the most earnest and learned men
here and there are beginning to protest and stir our consciences.
Tell me, then, what do you think?” Then he, with the instantly shrill
and excessive zeal of those who usually do not philosophize more
than four feet from their heater, said, “ What evil is there here to
trouble us and shackle our consciences, which have been convinced
by so many testimonies? It is a excessive scruple to think that God
would ever permit images of innocent people to be transported in
this way. With such a great number of denunciations, this is not a
case in which the judge should wonder whether he is proceeding
safely.” In turn the prince responded to this, and both sides offered
many arguments back and forth. When it seemed that the cleric
stubbornly wanted to insist, the prince finally concluded the dispu-
tation. “Truly,” he said, “I regret your fate, for you have condemned
yourself out of your own mouth in a capital crime. For you cannot
protest at all if I should hold you in custody, since no less than fif-
teen witches confessed that they saw you at their sabbaths. If you
should think that this is not a serious matter, nothing is stopping me
from ordering the transcripts brought out for you to read for your-
self that you have been proven guilty by more witnesses than you
yourself demanded.” The good man was struck dumb, and with his
eyes lowered he did not have anything he could offer in opposition
Hellyer text 4/14/03 12:55 PM Page 197

question xlviii 197

except confusion, and after his supreme eloquence came silence. I

am not telling a tale; it happened just as I said—it is not necessary to
identify the place and people. This can only be marveled at, since
Scripture says, and my adversaries grant, that the devil can trans-
form himself into an angel in order to ruin souls —indeed the Apos-
tle says that he actually does transforms himself in 2 Corinthians
11[:12-15]. Why can he not transform himself into an innocent per-
son so that he may ruin her body? Therefore this argument amounts
to nothing. Let us examine the last one remaining.
argument vii—the last one. Binsfeld says on page 360 that
the scholars —the authors of the Malleus Maleficarum, and likewise
Jaquerius, Spinaeus, Loyerius —hold this opinion, the true doctrine
that the devil cannot represent an innocent person at a sabbath, even
though our sorcerers testify that he can.
i answer. Many more scholars will hold our opinion once it is
presented. We prefer to maintain that this doctrine is true through
reason rather than authority. Therefore this argument does not hold
at all either. It is too ridiculous that Binsfeld begins with the author-
ity of witches, for the sense of his argument is that you should say
this opinion is true because the disciples of the father of lies hold it.
A wonderful proof! Therefore the witches acquire their authority
through their own testimony. Christ says in the Gospel: “If I bear
witness to myself, my testimony is not true” [ John 5:31]. The argu-
ment offered says: If Satan bears witness to himself, his testimony is
true. I am amazed at the point we have reached. To state finally what
I myself think, I am entirely of the opinion, as I indicated earlier,
that when the accused say they saw these and those people at sab-
baths, they are lying because of the compulsion of their pain, since I
think they are for the most part innocent. At least I see that it is
inevitable that if even only a few innocent people are enveloped
along with the others, immediately a huge number of additional
innocent people will follow, for some will drag others whom they do
not know along with them, once they have been compelled by the
violence of the torture to accuse them. We do not want to know the
truth; we just want them all to confess they are guilty. Whatever
happens, that must be achieved in the end. Accordingly, it never
occurred to me to doubt that there is a great crowd of witches in the
world. But now when I examine the public courts more thoroughly,
I see that I am gradually led to doubt whether there are any at all.
Certainly one can doubt in no small degree whether dances and sab-
Hellyer text 4/14/03 12:55 PM Page 198

198 cautio criminalis

baths physically occur. If only someone would investigate it care-
fully! With this commentary I wanted to incite scholars to begin to
discuss more deeply the things pertaining to trials in this crime.
Every day I experience that many people are carried away by blind
zeal and empty thoughts. I prefer those minds which do not consider
the things embraced by the common people to be completely true
and indubitable. But however this may be, let the princes beware lest
they are careless in a serious matter which has restitution bound
to it.
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 con-
cern 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 im-
mediately 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 accom-
plices, 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 rea-
sons recounted above. Let me mention this here in passing: I taught
Hellyer text 4/14/03 12:55 PM Page 199

question xlix 199

above* from the Caroline Code that confessions made under torture
should not be believed unless what was said were things that no in-
nocent 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 some-
one 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 distinc-
tion: 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 evi-
dence convince us that the suspects are not lying.
i answer ii. There are more excepted crimes than just witch-
craft. Therefore let what the objection states be true for those other
excepted crimes. If they want, my opponents can believe denuncia-
tions made by accomplices there. However, in the crime of witch-
craft alone I do not agree that they should believe them, because of
those particular reasons which I gave above, which one does not find
in the same way in other excepted crimes.
argument iii. One must rely upon and adhere to the rule until
it is shown that there is an exception or that the rule is wrong. But
the laws upon which we depend are just like rules and state that
one should rely upon sorcerers’ denunciations. Therefore . . . The

* Question 28, Argument 3.

Hellyer text 4/14/03 12:55 PM Page 200

200 cautio criminalis

minor premise is proven from the l. fin. C. de maleficis & mathe-
maticis [C. 9, 18, 9], which says that sorcerers should be subjected to
torture in order to reveal their partners in crime and therefore deems
that one may rely upon their denunciations. However, it is the height
of rashness to depart from the text of the law and from reason and
the common opinion. So Binsfeld writes on page 253.
i answer i. It is true that one must rely upon and adhere to the
rule until it is shown that there is an exception or that it is wrong. It
is also true that it is rash to depart from the text of the law and the
common opinion, if it is done without good cause. But we state that
here we depart from the rule, the word of the law, and from the
common opinion with good reason and by displaying that the rule is
wrong. That is what we did more than adequately above. The reader
should reread it.
i answer ii. There are two kinds of things that witches can be
asked concerning others.
I. About accomplices who helped in killing people or animals, in
causing harm, and similar crimes.
II. About accomplices at their sabbaths and festivals who prac-
ticed the art of magic and were seen there, etc. I should say, there-
fore, that the laws are to be understood to refer to the first kind of
question, and we grant, if indeed our adversaries want it, that some
trust can be placed in the first kind of interrogations, especially if the
sorcerers also add details which agree and from which evidence for
the truth of the denunciation arises which would satisfy a wise and
prudent man, that is, things according to the Caroline Code which
no innocent person could know or say, as I have warned several times
already. However, one should not trust interrogations of the second
kind, because even if witches want to say the truth they cannot
always do so, owing to the danger of them being deluded about sab-
baths discussed above.
you will say that Binsfeld has completely discredited this dis-
tinction for having no foundation and being derived from an igno-
rance of the crimes committed at sabbaths. For he says that the crime
of treason toward the divine majesty* and similar ones are commit-
ted there, which are much more serious than killing or harming peo-
ple or animals. Whence he argues this way: if one should believe and
rely upon the denunciations witches make when they are interro-

* By making a pact with the devil, a witch renounced God.

Hellyer text 4/14/03 12:55 PM Page 201

question xlix 201

gated about killing and harming men and animals, which are lesser
crimes, then should one believe denunciations all the more when
interrogating witches about sabbaths, which involve greater crimes.
But
i answer Binsfeld rejects our distinction without reason.
For I. he relies on principles that do not hold up. He assumes as
his foundation that the greater the crime the interrogation is inves-
tigating, the more the denunciation can be trusted—a foundation
lacking any reason, as we showed above, in Question 37, Reason 6,
when we taught that the power of testimony depends not on the
matter testified to but on the testifier.
II. We have given oft-cited reasons why one cannot believe a
denunciation for the crime of witchcraft when witches speak about
their sabbaths, even if one can believe them when they name their
accomplices in other crimes. Consider these things once again so
that we may amply satisfy any objections.
argument iv. Sorcerers are brigands and, more than brigands,
they are conspirators with the devil, they are guilty of treason toward
the supreme majesty, they are sacrilegers, they are traitors toward
their country, they are heretics, etc. But we may believe brigands,
conspirators, those guilty of treason, sacrilegers, traitors, heretics,
etc., when they testify against their accomplices, therefore we should
believe sorcerers too. Binsfeld again, pages 254ff.
i answer that the case is not the same with sorcerers as with
others. Particular reasons have been given above why we must not
believe witches even if we may believe the others, namely because of
their special malice, mendacious nature, and the presumption of
deceit peculiar to that crime because of its various illusions and
uncertainties. Consequently it is not correct to reason from those
other cases to witches, and Binsfeld’s enthusiasm here is groundless,
unless he can offer more solid arguments.
argument v. We must believe those who speak the truth, other-
wise trust among people will perish. But generally partners in this
crime speak the truth when denouncing their accomplices, as is clear
from experience and from witch trials. Therefore . . . Again Binsfeld,
page 257.
i answer by conceding the major premise but reject the minor
premise as completely false—and that is what is being examined
and disputed here, therefore it must be proven, not assumed. I
deny precisely that which he says is clear from experience and from
Hellyer text 4/14/03 12:55 PM Page 202

202 cautio criminalis

witch trials. Reread what I said in the previous Question, Argument
1, Response 3 & Argument 4, and this will strike down Binsfeld’s
argument.
argument vi. When witnesses who may not be examined are
examined, they inspire some credence because they provide evi-
dence of this kind, as the scholars say, etc. Therefore we must be-
lieve a witness who must be examined, because he inspires greater
trust. But according to the laws and the common opinion, a sorcerer
who himself confesses must be interrogated about his accomplices.
Therefore he is to be trusted more. Again Binsfeld, page 259.
i answer, the thrust of this argument is the same as the first,
therefore it has already been dealt with there, as the reader will
notice. Whoever wishes can reread it.
argument vii. The practice of the Church teaches that we
should believe witches, since judges have at all times investigated
those named by denunciations of this kind. Again Binsfeld, page 259.
i answer i. Even if this was the practice of many judges, never-
theless it was not the practice of all. For I have shown above that our
opinion does not lack learned authority.
i answer ii. Even if our opinion clearly departs from the com-
mon opinion of the other doctors and from practice, it need not be
immediately condemned as long as it does not lack solid reasons.
However, it does not lack them, as I revealed above. Therefore . . .*
i answer iii. Judges’ practice should not immediately be called
the Church’s practice. That sounds like it is a matter of faith. But it
is far from the case that the Church approves of every practice in
common usage and wants to call it hers, since many lack reason and
are bad. How long and how widely throughout the world did judges
practice the trial of witches by water? Should we then call this the
practice of the Church? Therefore Binsfeld groundlessly frightens
us with the beautiful name of the Church.
argument viii. Many witches identify the same person in
their denunciations. Therefore this is a sign that they are not lying.
Therefore they should be believed.
i answer that it is not remarkable that many witches identify
the same person, and if the denunciations do not have any credibil-
ity individually then they do not when taken together, since this can
occur for many reasons, as I will show. For either the denouncers

* These two answers constitute a classic statement of probabilism.

Hellyer text 4/14/03 12:55 PM Page 203

question xlix 203

truly were witches, or they were innocent people who were com-
pelled by the violence of their tortures to name others in order to
escape them. Whichever it was, it is not astonishing. For
if they truly were witches,
1. Many could have maliciously conspired together against an-
other woman, so that if they fell into the authorities’ hands their
accusations would agree in all the details and they would drag her
with them into ruin, as has been narrated in several examples which
I shall skip over for the sake of brevity.
2. The devil could, as we said above, have represented an inno-
cent woman at sabbaths. Since many witches assemble there, as they
themselves say, many could have seen her and named her along with
the same details regarding the time and place and so on.
3. The devil could have suggested, incited, or ordered them in-
dividually to accuse those whom he indicated and to add those
details as well.
if they really were not witches, then it is not astonishing either,
because
1. Where many prisoners are tortured and interrogated, noth-
ing is more likely than that several prisoners will attack the same
person by chance, especially if very few people still remain in the vil-
lage who have not yet been denounced and burned.
2. Since innocent women do not know any witches, most of them
usually name women about whom there is some widespread rumor,
or those who have been jailed on that charge once already or burned.
3. It happens now, as we see every day and was well noted by
Tanner, that court officials frequently do not maintain secrecy if
someone has been named, but spread it among the common people.
Therefore, in order to free themselves from their pain, those tor-
tured name these same women.
Certainly the rulers can in no way be excused in their consciences
when they do not rectify this matter. Where I live, several women
recently denounced by various people are already known almost
throughout the entire city. Their names are spread around while the
rumor grows. In a year a trial will be conducted on the basis of this
rumor. Oh what times! This is Germany’s zeal.
4. But some malevolent men, as I taught above, inquire about
particular people by name during torture. How then is it remarkable
if many prisoners accuse those whose names are put in their mouths?
Reread what I said above.
Hellyer text 4/14/03 12:55 PM Page 204

204 cautio criminalis

argument ix. It is clear from criminal trials that frequently all
those who were denounced by others truly were witches, since they
themselves then confessed under torture, from which it follows that
the denouncers spoke truly. Therefore we should not withhold our
trust from the denunciations.
i answer, their own subsequent confessions do not adequately
prove that the majority of those denounced were real witches. It is
abundantly clear how uncertain is proof acquired through torture,
and this is manifest from the things we provided above. However,
any accused witch who does not confess that she is guilty is a fool,
for these tortures will finally force her to succumb anyway, and if she
does not succumb she will be burned alive as obstinate. Reread what
we said about this above. Of course those who are accustomed to
write their nocturnal ramblings in peace and leisure, or have never
gained a sense of this pain because of their harsh and haughty spirit,
do not know how much power these torments have. I pray, not out
of any malevolent will, but from the best Christian affection for
their greater good and the protection of their consciences, that it
may occur to them to try a little taste of the rack for half of a quar-
ter of an hour to get a foretaste in their imagination, as it were,
before they conduct these odious cases by putting accused people on
the rack. For I do not want to be as harsh as some prince, I do not
know which one, is said to have been. He ordered those men whom
he wanted to appoint to judge criminal trials to first be strapped to
the rack for half an hour, however much they struggled, so that be-
ing no longer completely ignorant of that pain, they would under-
stand the power of torture more clearly. He thought that through
the not particularly protracted torture of one person, it would fol-
low that many others would be rescued not only from torment but
even from death. Therefore he completely convinced himself that
he could do this in good conscience for the benefit of the state and
that the judges for their part had to endure it.
I will not add my judgment; may God grant that we all love him
and pass through this temporal world in such a way that we do not
lose the eternal one.
you will say that the denounced women not only confess
that they are guilty but also agree on those details and particular
points which the denouncers deposed about them. Therefore this is
a sign, etc.
i answer that either it is false or it happens in the way I taught
Hellyer text 4/14/03 12:55 PM Page 205

question xlix 205

above, in Question 28, Argument 4. Reread it and you will notice

that these arguments are entirely worthless.
argument x. Lest I should keep secret any of my opponents’
arguments which I have found, I will add to these arguments from
Binsfeld another from Professor Goehausen of Rinteln, whom I
cited above. He argued in this way, with these words:
It is well established that through our greatest efforts witches are com-
pelled to make these denunciations even though the devil forbids them to do
so, lest the execution of his devoted subjects diminish his kingdom and ex-
amples of this sort deter others from this crime.
Therefore it is all the more certain that those denunciations which we
know were extracted completely against the devil’s will are true. Therefore
the witches only name dead people. So he writes on page 152.
i answer, this argument proves too much and thus nothing at
all. I will show that it proves too much because it proves also, or
rather instead, the very thing that we wanted rather than what Goe-
hausen wanted. For from his very words I can form this enthymeme:
I. The devil is completely opposed to his lackeys revealing their
real accomplices. However he is not opposed but is in fact com-
pletely in favor of them naming and killing innocent people. There-
fore, one must judge that they will name innocents with their lord’s
full assent, rather than guilty ones completely against their lord’s
wishes.
II. The devil forbids them, and indeed, as Goehausen says else-
where, binds them under oath at sabbaths, to mutually name each
other. He never prohibits nor prevents them under oath from nam-
ing innocent people. Why, then, would his submissive slaves prefer
to name those whom he has forbidden them to name rather than
those whom he has not forbidden them to?
III. If they named their true accomplices, the devil’s kingdom
would be diminished. If they name others, it will not be diminished.
Why, then, would they want to name the former rather than the lat-
ter? Can they be faithful lackeys of a single kingdom if they are so
divided among themselves?
IV. If they mutually named each other, the surviving witches,
having seen their colleagues punished, would be deterred. But if
they name others, then obviously they would not be deterred but
encouraged further when they see that vengeance does not strike
their own flock but their enemy’s. Yet Goehausen can still ask why
they would accuse others rather than their own? Therefore this
Hellyer text 4/14/03 12:55 PM Page 206

206 cautio criminalis

argument proves too much because it speaks in our favor. However,
in order not to ignore the case against me but rather to help it, the
argument can be put this way. For
you will say that I was perverting the force of the argument,
for it had a very different thrust, namely this one, which can be sharp-
ened on the response I just gave in this way: if witches name inno-
cent people, then they are doing what the devil wants; they are not
diminishing his kingdom, they are encouraging the other witches,
and they are rescuing themselves from torture. Clearly, then, they
will be ready, willing, and able to name innocent people. But they
are not ready, willing, and able to name those whom they actually do
name, but rather they must be compelled with great effort and with
the great pain under torture to do it. Therefore, those whom they
name are not innocent, but guilty. It can be put more succinctly in
this way: if witches named innocent people, they would be ready to
name them. However, they are not ready to name them, therefore
they are not naming innocent people, which is a correct syllogism in
the second figure of hypotheticals.*
i answer i. Concerning the major premise of this syllogism:†
Witches are ready to name innocent people and will name them
without being compelled to by the violence of torture, if it were pos-
sible and up to them to do so. Yet it cannot ever happen that they
name someone voluntarily, for the naming must necessarily be co-
erced and extracted by torture. Therefore their naming of both
innocent and guilty people is always coerced and the same in both
cases. For scholars of criminal law doggedly insist that if someone
who has confessed to her own crimes then also wants to name her
accomplices before being coerced by torture, then her confession
should not be heard. Rather they torture her regarding her accom-
plices whether she wants to denounce them or not. In this way her
confession about her accomplices is wrung out of her through a new
and particular round of torture with the sole purpose of expunging
her disrepute, as they say and as we reminded you above, in Ques-
tion 44, Reason 5. Whence the legal scholars employ this argument
in vain, but they really do it quite charmingly, for they thereby en-

* A hypothetical syllogism is one that has a hypothetical proposition as a minor

premise. A syllogism of the second figure has the form P is M, S is M, therefore S
is P, where P is the predicate, M is the middle term, and S is the subject term.
† I.e., if witches did name innocent people, they would be prepared to name them.
Hellyer text 4/14/03 12:55 PM Page 207

question xlix 207

sure that every denunciation of an accomplice occurs through the

pain of torture and is thus coerced. Then because it was not volun-
teered but coerced, they deduce proofs from this. I cannot quite
grasp this manner of reasoning. Let the reader consider this matter
and when he has understood what I want to say, then he will be
amazed.
i answer ii. Concerning the minor premise of this syllogism:*
Those women who must name others either are true and real witches
or they are not and are witches in name only, so that I should say that
they are women coerced by the violence of torture to acknowledge
a crime of which they are actually innocent. If they are true witches,
I deny the minor premise, for they will name innocent people
promptly, willingly, and quickly because of the reasons given earlier.
But since everywhere those who name others must be forced into it
with great effort and pain under torture, I argue rather that they
therefore are not true witches but in name only. For I will twist back
the argument offered to the complete contrary in this manner:
If true witches must name people, they will willingly name inno-
cent people at least, as my adversary concedes. But the women who
name others everywhere now do not willingly name anybody at
all, as he will concede. Therefore those women who name others
everywhere now are not true witches. This syllogism is completely
correct.
From this the solution to what the argument above said clearly
follows: therefore witches only name dead people.
The princes should pay attention to what I have said in this seri-
ous matter, for this is how things really are:
Most ignorant and careless judges, and many avaricious and
malicious ones also, arrest and torture on worthless evidence. The
power of torture produces witches who are not really witches. Nev-
ertheless, because they must be witches, they must also denounce
their teachers, students, and companions whom they do not have.
Because this vexes their consciences, they resist until they are com-
pelled by the force or their fear of torture. Then finally, unequal to
the torture, they name those concerning whom their accusations
appear credible and whom they will harm as little as possible. So, I
say they name those who have already died and were burned as
witches. If they are urged on further, they also name living women;

* I.e., they are, however, not prepared to name them.

Hellyer text 4/14/03 12:55 PM Page 208

208 cautio criminalis

first of all those whom they have already heard defamed or de-
nounced by others, or arrested at some time on this charge, etc. This
is the way it happens everywhere. If I knowingly deceive you,
Then omnipotent Father drive me with thunderbolts into the shadows.*
I know, however, what I am talking about. At the final judgment
of the living and the dead I will reveal how I know it to those rulers
who should also know these things and whom so many innocents
will justly summon before the tribunal that day—and I will summon
them too.
argument xi. Unless we may believe denunciations, there is no
other means to detect and extirpate witches, so the state will not be
cleansed of evildoers; we must therefore believe the denunciations.
This is the argument of the judges today and of all those before
whom I say that denunciations must be rejected as deceitful. How-
ever, Binsfeld vehemently insists on this argument, as do men who
are in other respects learned, which always amazes me. So I will
show how little they have considered the argument they are propos-
ing. For
i answer i. I deny that there will not be any other means for
detecting the guilty, since there are other types of evidence that suf-
fice for proceeding to investigations and torture. Tanner and Delrio
enumerate several which it is too much trouble to write out in full.
Whoever is interested can read them himself.
you will say, even if evidence for detecting common witches
appears from time to time, evidence for the witches’ princes and
rulers does not. Binsfeld writes, When have princes of this crime been
seen either setting up brooms to cause rain, or putting them under the door
to someone’s stable, or spreading quarrels and threats among the people, or
performing other outward works that serve as evidence to prove their guilt?
For these are the deeds of common and base people who inhabit the coun-
tryside and work among the people. This sort of evidence can be seen there
sometimes. So he writes.
He thereby proves and vehemently insists that there should be a
place for denunciations, without which there is no other way to drag
the princes of witches out into the open. And so
i answer ii. Even if it were true that no other way to detect
witches and their princes would remain, what then? Should I there-
fore use an unsuitable and dangerous way, as I showed it to be above,

* Virgil, Aeneid, 4.25.

Hellyer text 4/14/03 12:55 PM Page 209

question xlix 209

which operates though denunciations? I encounter a dilemma here:

either my adversaries have sure and true ways for detecting witches,
or they do not. If they have them, well, they should use them. If they
do not have them, then they should abstain from detecting those
whom they cannot detect. Who is forcing them to eradicate weeds
of which they are unaware? Why do they harass and strike them
down in vain and do not rejoice in the teaching of the Gospel that
they should allow both to grow until the harvest? Did our heavenly
Father not foresee this when he gave us this commandment? Or are
we wiser than the Son of God?
i answer iii. I am amazed at the sort of proof this is. There is
no other way detect witches. Therefore the method of detecting them
through denunciations is a good one, just as if a priest wanting to cel-
ebrate mass concluded when he found no wine but only vinegar:
there is no other material to consecrate here, therefore this is good.*
you will say, this is to protect witches. But
i answer. This is not the first time that I have heard this voice;
nor it is the first time I will refute it. I am accustomed to arguing with
reason, not jeers. Nevertheless Tanner responds beautifully when he
says: This is to provide protection not for witches but for the innocent against
the witches maliciously plotting against them. Otherwise outside the court
witches could only attack people by risking the loss of their own lives and
goods, but in court, once freed from this danger and fear, they could attack
the lives, reputation, and fortunes of the innocent all the more freely and,
consequently, all the more harmfully.
i answer iv. Yet why am I fighting? Let what the argument pro-
posed be true, namely that unless we believe denunciations, there is
no other way to discover and extirpate witches. I will concede this to
my adversaries. Let it be so; it is completely true. But look how this
works in my favor and confirms the opinion I conceived regarding
the scarcity of witches. For I have often pondered the following
points:

* In his Summa Theologiae St. Thomas Aquinas specified that wine which had
turned to vinegar could not be used in the sacrament of the Eucharist (3a, q. 74,
a. 5, ad 2). The moral theology lectures delivered by Spee’s former student and
published as Theologia Moralis Explicata state, “He [the priest] who consecrates
wine which is not from grapes or has changed into vinegar . . . sins mortally. The
reason: because it does nothing as the Roman Missal teaches regarding defects
occurring in the celebration of the mass.” Theologia Moralis Explicata, ed. Helmut
Weber (Trier: Spee Buchverlag, 1996), 276.
Hellyer text 4/14/03 12:55 PM Page 210

210 cautio criminalis

I. My adversaries all shout that everywhere is full of witches.
Therefore I ask, how do they know this? How do they discover these
witches? They say there is no other way to discover them unless we
can believe denunciations. Yet I have shown a little earlier that all
denunciations are completely deceptive. Therefore everywhere is
full of witches because they have used a completely deceptive means
of knowing. Then they deny they have any other means except this
one. What should I say to this?
II. It is so certain, so indubitable, that everywhere is full of
witches that whoever doubts it is hated, booed, and may not be heard.
To put it briefly, it is completely certain. I ask, whence does this
certainty arise? They say, from the testimony of witches, from the
authority of the devil. Wonderful! Since this produces a completely
certain notion, will it be an infallible credo? But completely certain
knowledge is never deduced from fallible authority, as all theologians
and dialecticians and the light of reason itself teaches us.
III. Why do my adversaries fight among themselves? Some
shout that they have much compelling evidence that Titia, for exam-
ple, is a witch. Now Binsfeld and others shout that they have noth-
ing other than denunciations, and if they cannot be believed then
they cannot conduct trials.
IV. I hear that some inquisitors recently said that they follow
common practice and thus cannot err. Others say the same thing, if
not in words then nevertheless in deeds, for they act as freely as if
they were infallible. The common people also think that there is
something about all the criminal courts which is sacred and holy—I
do not know what it is —so that whatever they rule is infallibly just
because of this. I ask where does all this come from? Because the
judges rely on satanic testimony, and if they did not have it, they
could not conduct trials, says Binsfeld.
V. But I think that this is great trickery and nothing can taint the
German name more ignominiously than to say that our rulers have
conducted trials very harshly until now, yet nevertheless they could
not have conducted them unless in the end they relied on satanic tes-
timony. Let the reader reflect upon this.
VI. It will be much more shameful if it is heard that this same
satanic testimony has such strength among Germans that it is even
accepted as evidence against ecclesiastical persons. This will cause
the greatest contempt for the Catholic faith among heretics. Never-
Hellyer text 4/14/03 12:55 PM Page 211

question xlix 211

theless such testimony has been accepted in this way under Church
princes.
[NB in margin] VII. It occurs to me here to wonder whether a
Catholic priest in a case in which he had been accused of magic on
the basis of such testimonies but cleared himself through two, three,
and even four rounds of torture should nevertheless have been con-
signed living to the flames and called with that good old phrase
“obstinate and impenitent” because he rejected that great testi-
mony? And what if, on the very day of his death, he was judged by
his confessor to be truly penitent and with great reverence estab-
lished his innocence before the sacrament of the venerable altar?
What if he called out to his present and future Judge on the basis of
his word or Gospel? What if he appealed to that witness, that he had
endured those otherwise intolerable tortures until now so that the
priestly name not be branded with shame? What if, about to hear his
sentence, he repeated the same protestation to the bench of the law
and vehemently urged the judges not to condemn a priest of god
who had neither been convicted nor confessed to the crime and
thereby bring great contempt upon religion? What if he repeated
the same words to the people at his place of execution with the same
sense of piety and moving speech, which stirred their souls so deeply
that all groaned and broke out in tears, even the heretics who were
present? Does such grand testimony still hold its course and strength
through all these storms? And what if while denying the crime of
magic, he nevertheless confessed to other crimes through the vio-
lence of his torments —can he be condemned for them, when he had
not been accused of them in the first place and therefore had not
been legally examined nor made a legal confession? Certainly such
occasions could arise, so in any event it would be good to know
what we should think in such a case. But more about this elsewhere
perhaps.
What now remains is that it seems ridiculous to me to imagine
that we have many witches in Germany when we conduct trials in
this way, especially since many judges rush not only to arrest and
torture on the evidence of multiple denunciations made by witches
but also to condemn, following too closely the authors Delrio cites
who hold that many denunciations of this kind constitute full proof.
I hear that judges have even been found who want to arrest and tor-
ture on the testimony of the possessed.
Hellyer text 4/14/03 12:55 PM Page 212

212 cautio criminalis

So what testimony should we exclude then? Where will we ar-
rive? Is this not our manifest punishment? And what should I say
about the testimony of those beggar boys who, led on either by
malevolent people or, as it is easy to deceive them at that age, by a
particular skill in examination assailing them on all sides with soph-
istical questions, or even willingly allured by food and drink, agree
that they have been seduced. When they are asked about wonders
they narrate wonders —what they saw at sabbaths, what was done
there, who was present, and the like—none of which they remem-
ber when asked by clergymen and more intelligent men, and they
retract everything.
So when a nanny goat recently went missing, which I will add
here for the sake of humor (for a soldier had abducted her), she was
also eaten at a witches’ sabbath by these and those people—I do not
know whether they have already been executed or are about to be.
There are many such cases which I shall omit because I am hasten-
ing to the end. Perhaps we will collect them elsewhere. The rulers
should know that they are being deceived by their officials in a won-
derful way that can only be lamented.
Question L. Whether a judge can safely embrace either opinion:
ours which rejects denunciations or theirs which thinks much of
them?
i answer, he cannot embrace my adversaries’ opinion safely.
These are the reasons:
reason i. In doubtful cases the safer path must be chosen. Even
if this rule has only the weight of advice in other cases, it neverthe-
less acquires the force of a maxim when there is any danger that
some harm will otherwise come to our neighbor, as the casuists
teach,* and as I said toward the end of Question 8.
reason ii. I have shown with good arguments that my adver-
saries’ opinion does not hold up. Therefore, either the judge must
establish it more securely by introducing new arguments and refut-
ing ours, or he must follow our opinion.
reason iii. The law maintains that in doubtful cases the accused
is favored over the plaintiff, according to rule 11 of the law in 6.

* Casuists are moral theologians who examine cases of conscience by taking the
particular circumstances into account. Spee was strongly influenced by the Ger-
man Jesuit moral theologian Paul Laymann.
Hellyer text 4/14/03 12:55 PM Page 213

question l 213

reason iv. The judge must follow the safer interpretation ac-
cording to cap. ad audientiam, & c. significasti 2 de Homicidio.*
you will say i. Binsfeld proclaims that this way will not purge
the state.
i answer that he proclaims it without reason, for you will eas-
ily gather from what I have said that if we grant denunciations such
weight, then the opposite will happen and the wheat rather than the
weeds will be endangered. For evidently if purging the state means
starting out along such a dangerous path for annihilating the guilty,
then who, even the most innocent, can be safe?
All the inquisitors shout that the crime of magic is completely
hidden. I ask you, however, how hidden is it if we can so easily per-
ceive it that there is no other crime in the world for which so many
criminals have been brought to light and continue to be daily, as my
adversaries themselves think?
you will say ii. Indeed the first opinion is milder with respect
to those denounced, but the other one is more useful with respect
to the state and public good if it helps the courts and facilitates the
path to execution. Thus writes Professor Goehausen of Rinteln in
his book on witch trials, page 151, cited above. But
i answer. First of all, our opinion is both milder and more use-
ful with respect to those denounced, those denouncing them, and
the state. For it snatches the one denounced out of jeopardy, it reme-
dies the denouncer’s desire for malice and ill will, and it prevents the
state being devastated. It tolerates a few guilty people in order not
to expose many innocent people to mortal danger. Next, the reason
offered as an objection in support of the contrary opinion, namely
that it will thereby help the courts, etc., does not prove that it is
more useful to the state but, on the contrary, more harmful. For to
help the courts and facilitate such harsh executions through frivo-
lous evidence, that is, through completely false testimony resting
upon the veracity of mendacious witches, is as harmful to the state
as those great evils which can follow from conducting these trials
thoughtlessly, as I said above, in Question 8, Reason 3.
you will say iii. A judge who spares the evil harms the good.
Those who allow many to be slain in order to spare one are cruel,
etc., as this same Rintelner professor writes, page 153. But
i answer. That is true, but it is irrelevant. For first of all, who-

* Both of these legal references are from Tanner, number 28.

Hellyer text 4/14/03 12:55 PM Page 214

214 cautio criminalis

ever wants to learn who the evil ones are only on the basis of com-
pletely false denunciations made by evil people will instead spare the
evil and destroy the good and thereby doubly harm the good. Next,
they are cruel who, in order to slay one evil person, do not make sure
that they do not slay many good people at the same time. Finally, not
just one person is spared when the people denounced are spared. For
many are spared and they are spared rightly, since there is as yet in-
sufficient suspicion that they are guilty. However, if you assume that
they are evil, guilty people who must not be spared, then you are
assuming the very thing which is in question here, namely whether
their guilt should be assumed. For whether someone who a lying
woman says is guilty and evil should be considered to be guilty and
evil is what we were examining. Therefore, when Binsfeld on page
292 vigorously rebukes the rulers and urges justice but nevertheless
says there is no other way of conducting trials than through these
satanic denunciations, his zeal is not discerning at all.
Question LI. What is a brief summary of the method used by
many judges in witch trials today, fitting for the noble emperor to
comprehend and Germany to study?
i answer, any reader could fashion a summary of this treatise
himself, but because I can do it more easily I shall do it myself here,
omitting, however, many things that cannot be conveniently in-
serted. For such matters, consult what I have said already and, like-
wise, if you should want to know more details concerning those
things which are set down here. So here is the summary:
1. It is incredible what superstitions, jealousies, lies, slurs, mut-
terings, and the like there are among the common people in Ger-
many, particularly (it is embarrassing to say) among Catholics, which
the authorities do not punish nor preachers reproach, and which first
arouse the suspicion of magic. All divine punishments which God
threatens in the Holy Scriptures are committed by witches. God no
longer does anything, nor nature, but everything is done by witches.
2. Thus everyone shouts with great passion that the authorities
should therefore investigate the witches —of which they themselves
created so many with their own tongues.
3. The princes therefore command their judges and counselors
to begin to try witches.
4. At first these men do not know where to begin, for they have
Hellyer text 4/14/03 12:55 PM Page 215

question li 215

neither evidence nor proof, and they do not dare in good conscience
to undertake anything without good cause.
5. Meanwhile they are admonished two or three times to begin
the trials. The common people shout that this delay is itself not with-
out suspicion. So, advised by I know not whom, the princes convince
themselves of virtually the same thing.
6. In Germany it is a serious matter to offend the princes and
not obey them immediately. Most people, even clergymen, exces-
sively approve of almost anything as long as it pleases the princes,
nor do they notice who is often inciting the princes, however much
the princes themselves may have the best nature possible.
7. Therefore the judges finally accede to the princes’ will and at
last find some way to begin the trials.
8. If the judges still delay and abhor dealing with such a perilous
matter, then a specially appointed inquisitor is sent. If he brings with
him a certain inexperience or passion, as is normal in human affairs,
it changes its complexion and name in this matter and becomes noth-
ing other than pure justice and zeal, which no doubt his hope for
monetary gain does not diminish, particularly in a rather poor and
greedy man who has a family full of children, when a bounty of sev-
eral thalers has been arranged for him for every criminal he burns,
in addition to the incidental monies and contributions that inquisi-
tors may liberally extract from the peasants, as I mentioned above.
9. So if the possessed should say anything, or if the malign and
spurious (for it is never proven) rumor of the day falls heavily upon
some poor, common Gaia, then she is the first.
10. Lest they should appear to try her on the basis of the rumor
alone without any other evidence, as they call it, look! suddenly
some evidence is at hand by means of this dilemma: either Gaia led
an evil and immoral life or a good and virtuous one. If evil, then they
say that is strong evidence, for from evil to evil is an easy assump-
tion. If, however, it was a good life, then this is equally strong evi-
dence, for they say that is the way witches cover themselves, for they
usually try to appear to be especially virtuous.
11. Gaia is ordered to be taken to the prison, and look! more evi-
dence comes from this dilemma: either she now shows that she is
afraid, or she does not. If she shows fear (and naturally so since she
has heard what severe tortures are normally used in these matters),
then this is evidence because they say that her conscience is accus-
Hellyer text 4/14/03 12:55 PM Page 216

216 cautio criminalis

ing her. If she does not show fear (and naturally so, for she is confi-
dent of her innocence), then this is also evidence because they say
that it is of course quite peculiar to witches to boast that they are
innocent and hold their heads high.
12. But if he does not yet have much evidence against her, then
the inquisitor has his men, often immoral and disreputable ones,
inquire into everything in her past, and of course it cannot happen
otherwise than that something she has either said or done presents
itself which those men with their mean-spirited interpretation can
easily twist and turn into proof of magic.
13. If there are any people who ever wanted to do her harm, they
now have a wonderful opportunity to hurt her. They can allege
whatever they want, they will easily find things. So they shout from
all sides that she is incriminated by strong evidence.
14. Therefore she is dragged off to be questioned as soon as pos-
sible, unless she was already led off on the very day that she was
arrested, as often occurs.
15. Nobody at all is granted a lawyer or a completely unbiased
defense, since everyone shouts that this is an excepted crime, so any-
one who wants to defend her and speak for her also comes under
suspicion of this crime. It is the same with those people who wish to
say something on the matter and admonish the judges to use cau-
tion, for they are immediately called patrons of witches. In this way
everyone’s mouths are shut and quills dulled so that they neither
speak nor write.
16. Generally, however, lest it seem that the judges have not
given Gaia at least a chance to defend herself, they lead her into an
appearance in court and the evidence is read out and examined, if
that really is an examination.
17. Even if she refutes the evidence and accounts for all the sep-
arate charges, they neither notice nor record it. The charges retain
their strength and validity, no matter how well her answers strip them
away. They just order her to be led away in chains, so that she may
carefully consider whether she wishes to persist in her obstinacy. For
she is already obstinate, since she has defended herself. In fact, if she
thoroughly vindicates herself, then this is new evidence, since natu-
rally they say that she would not be so eloquent if she were not a witch.
18. After she has considered matters, they lead her back in again
the next day and read the decree of torture to her, just as if she had
not said anything in reply to the accusations and refuted them.
Hellyer text 4/14/03 12:55 PM Page 217

question li 217

19. However, before he tortures her, the torturer leads her aside.
So that she may not strengthen herself against the pain with some
kind of magic charm, he shaves and searches her entire body—even
that part by which her sex shows is most impudently searched. Of
course to this day nothing has ever been found.
20. But why not do that to a woman when it is also done to
consecrated priests, even by the inquisitors and ecclesiastical offi-
cials of Church princes? For German judges do not consider the
brute thunderbolts which the bull Coena casts at those people who
try clerics without the special and specific permission of the Apos-
tolic Chair. But the inquisitors make sure that the most pious princes,
those most obedient to the Roman See, learn nothing and thus do
not rein in the trials.
21. Once Gaia has been searched and shaved, she is tortured so
that she recounts the truth, that is, she simply pronounces herself to
be guilty. Whatever else she might say is not the truth, nor can it be.
22. However, they subject her to torture of the first kind, that is,
the more mild kind, which one should understand this way: it is
actually very severe, but it is mild in comparison with the following
kinds. Therefore, if she confesses they say and circulate that she
confessed without torture.
23. Who among the princes and others who hear this would not
think that she is most certainly guilty, since she admitted of her own
accord without torture that she is guilty?
24. After this confession she is executed without a thought. She
is executed even if she did not confess, for once the torture has begun
then the die has been cast, she can no longer escape, she must die.
25. So either she confesses or she does not. Whatever happens,
she is done for in either case. If she confesses, the matter is clear, as
I said, and she is executed. Any retraction is made completely in
vain, as we showed above. If she does not confess, then the torture
is repeated two, three, or four times. Whatever the judges want is
permitted. For there is no rule governing the duration, severity, or
repetition of torture in excepted crimes. The judges do not think
that they have committed any sin here which they will have to con-
front in the court of their own conscience.
26. Should Gaia in her torment roll her eyes in agony or stare,
then this is new evidence. If she rolls her eyes, look! they say, she is
searching for her concubine! If she stares, look! they say, she has
already found him, she is looking at him. But if she does not break
Hellyer text 4/14/03 12:55 PM Page 218

218 cautio criminalis

her silence after several rounds of torture, if her face is twisted in
pain, if she sinks into unconsciousness, etc., they shout that she is
laughing or sleeping during the torture, that she is using the sorcery
of silence, and she must be so much the guiltier. How fitting then
that she be burned alive. This was recently done to several women
who did not want to confess despite being tortured repeatedly.
27. Then even confessors, even regular clergy, call that dying
obstinate and impenitent. She did not want to repent or abandon
her concubine, but wanted to remain faithful to him.
28. But if it should happen that someone yields up her spirit
after such torture, they say that the devil broke her neck, and they
prove it with this irrefutable argument, which you may take if you
wish to use it: there is not a single person who was not killed by the
devil in this way, as I showed above.
29. Therefore, of course, her body may be taken out and de-
servedly buried beneath the gallows by the executioner.
30. But if Gaia does not die, and some scrupulous people do not
dare either to torture her further without new evidence or burn her
without her confession, then they keep her in prison bound in tight
chains, and there she is to be tormented for up to a whole year until
she is overcome.
31. But she can never clear herself through torture and wash
away the crime once tainted with it, as the law wishes. To let her go
once she has been arrested would disgrace the inquisitors. Once the
chains have embraced her, she must be guilty by hook or by crook.
32. Meanwhile, as well as before and after, ignorant, impetuous
priests are sent to her who are more troublesome than the torturers.
Their purpose is to harass the unfortunate in every way possible to
the point that she finally confesses that she is guilty, whether she is
or not. If she does not confess, they shout that she cannot be saved
nor fortified with the sacraments.
33. The judges take very particular care that calmer and more
learned priests who carry hay in their horns* and salt in their hearts†
are not admitted to her. Similarly, no one else who could defend her
or instruct the princes may enter the prison. For the judges fear noth-

* I.e., are threatening. Bulls that were dangerous had their horns tied with straw.
Horace, Sermons, 1.4.34.
† I.e., are shrewd and experienced.
Hellyer text 4/14/03 12:55 PM Page 219

question li 219

ing so much as that somehow something might be revealed by which

the prisoners’ innocence could come to light. So inquisitors take this
opportunity to remove from the prisoners’ consciences the kinds of
men into whose care the princes entrust not only the youth of this
world but even their own consciences, no matter how much the pris-
oners ask for them.* And recently, inquisitors even dared to claim at
noblemen’s tables that such men should deservedly be expelled from
the land as disturbers of justice.
34. While Gaia is still kept in the dungeon in the way I said and
is harassed by those who ought to do it the least, there is no short-
age of beautiful discoveries with which diligent judges may not only
find new evidence against the witch but also prove (God save us!) her
guilt to her face, so that they may proclaim that she may be burned
alive in accordance with the ruling of the academies of doctors, as
has been discussed earlier.
35. Some men, however, order that Gaia be exorcised to excess,
transferred to another place, and then tortured again, as if perhaps
by this purging and change of location her spell of silence can be
broken. But if they can make no progress this way, then finally they
commit her living to the flames. Since she dies whether she con-
fesses or not, I would like to know, may God love me, how she can
ever escape, no matter how innocent she may be? You miserable
woman! What are you hoping for? Why did you not declare your-
self guilty when you first entered the prison? Why, you foolish and
insane woman, do you wish to die many times when you can do it
just once? Follow my advice, and before any torture just say that you
are guilty and die. You will not escape, for this, after all, is the cata-
strophe of Germany’s zeal.
36. One can hardly say what misery this is if any woman falsely
states that she is guilty because of the violence of her pain, since in
most courts there are no means available by which she might escape.
She is forced to accuse others whom she does not know, whom her
questioners not infrequently place in her mouth or the torturer sug-
gests, or who they have heard are already infamous, or denounced,

* This is a clear reference to Spee’s fellow Jesuits, who dominated education in

Germany’s Catholic territories and who served as confessors to many princes and
bishops. Spee was not the only Jesuit who was concerned about the way witch
trials were conducted.
Hellyer text 4/14/03 12:55 PM Page 220

220 cautio criminalis

or already arrested once and released. And those women must in
turn denounce others and they in turn still others and so on. Who
does not see that this must go on infinitely?
37. Therefore the judges must either break off their trials and
damn their own art, or they must in the end burn their own families,
themselves, and everyone else, for these completely false denuncia-
tions will eventually reach everyone, and if only torture can follow
them, then it will reveal that they are guilty.
38. Thus those people who at the beginning actually shouted the
loudest that the bonfires be constantly fed are themselves finally
entangled. For these shortsighted fools do not see that their turn
must also come. And indeed it will be god’s just judgment on them,
for it was they who created so many witches for us with their pesti-
lent tongues and added so many innocent people to the flames.
39. But now many more prudent and learned people have begun
to see little by little and, as if aroused from a deep sleep, are open-
ing their eyes and are using cruelty more slowly and cautiously.
40. Although the judges deny that they move on to torture on
denunciations alone, I have shown above that they really do this.
Consequently they deceive their own good princes when they deny
it. For the rumor that they usually link to the denunciations is always
invalid and null, since not one has ever been legitimately proven.
As for the rubbish they talk about stigmata, I am amazed that wise
men have never noticed that they are deceptions performed by the
torturers.
41. But while the trials boil away and women diligently de-
nounce others when compelled by the harshest torment possible, it
soon trickles out just who has been denounced. This is the meaning
of secrecy for those present at the interrogation, and it is not with-
out profit for them because in this way they can at once seize evi-
dence against those denounced through this dilemma: if people hear
that they have been informed on, as they certainly do hear, either
they then take flight so that they are not arrested, or they stay in
place. If they take flight, then the judges say that this is great evi-
dence of their guilt and fearful consciences. However, if they stay,
then this is also evidence, because the devil, it is said, holds them so
they cannot leave, as I recently have had to listen to more than once
with a groan.
42. Furthermore, if someone goes to the investigators to ask
them whether what he has heard is true, so that he may have time
Hellyer text 4/14/03 12:55 PM Page 221

question li 221

to defend himself and counteract his impending troubles by legal

means, this is also taken to be evidence, as if someone against whom
the inquisitors had not yet undertaken anything must have been
motivated by his bad conscience and guilt.
43. But whatever he does, he binds the rumor to himself, which,
having matured sufficiently after a year or two and combined with
denunciations, suffices for torture, even though the rumor itself first
arose through denunciations, for I have seen examples of this.
44. Things happen in a similar way with those people who en-
dure some calumny that arose out of malice. For they will either
defend themselves in court, or they will not. If they do not defend
themselves, this is evidence of their guilt because they are silent.
However if they do defend themselves, the calumny spreads further
and arouses suspicion and the curiosity to find out more in those
who knew nothing about it before, and soon a rumor is circulating
which can never be suppressed.
45. So nothing is more likely to happen than that those who are
tortured in the meantime and forced to denounce others readily
denounce those about whom the rumor spread.
46. From this a particular corollary follows which one should
note in red. If we constantly insist on conducting trials, no one of
any sex, fortune, condition, or rank whatsoever who has earned him-
self even one enemy or slanderer who can drag him into the suspi-
cion and reputation for witchcraft can be sufficiently safe in these
times. So wherever I turn, the condition of our times is certainly the
most miserable possible, unless care is taken otherwise. I said above,
and I will repeat my words, that this plague, whatever it may be, can-
not be destroyed by fire, but it can be destroyed very effectively in
another way in which hardly any blood will flow. But who wants to
know this? Pain overwhelms me as I try to say more, so that I can-
not carefully bring this summary to a perfect end, nor can I con-
template writing a German version, which would not be without its
uses; perhaps there will be those who will carefully complete it out
of love for their fatherland and innocent people.* Finally I entreat
all learned and pious, prudent and moderate appraisers of affairs (for
I care nothing for the rest), for the sake of the court of the omnipo-

* Spee himself never prepared a German translation. An abridged German trans-

lation by Johann Seifert of the first edition appeared in 1647 and a complete Ger-
man translation by Hermann Schmidt of the second edition in 1649.
Hellyer text 4/14/03 12:55 PM Page 222

222 cautio criminalis

tent Judge, to diligently read through and consider what I have writ-
ten in this treatise [NB in margin]. All rulers and princes put their
eternal salvation in great danger unless they are willing to be as care-
ful as possible. They should not be astonished if I harshly and boldly
admonish them from time to time, for it is not fitting for me to be
among those whom the Prophet calls mute dogs who are not strong
enough to bark.* Let our rulers take care of themselves and their
whole flock, for one day god will require as accurate an accounting
as possible for it from their hands.

* Isaiah 56:10: “His watchmen are blind, they are all without knowledge; they are
all dumb dogs, they cannot bark; dreaming, lying down, loving to slumber.”
Hellyer text 4/14/03 12:55 PM Page 223

Appendix
What can torture and denunciations achieve?

they can achieve virtually anything. That is why recently somebody

not inelegantly called it Omnipotent Torture. And certainly several
examples have circulated of people who were executed after falsely
confessing once overwhelmed by torture that they had murdered
people—who afterward were found alive, and there are similar cases.
But I did not want to use such examples in this little book, in part to
avoid filling up the pages with stories, which anyone could do, in
part so that nobody would think such things are therefore rare and
do not occur every day. However I want to add one example here
which encompassed a huge crowd of people, and I am amazed that
it has not hitherto been better noted. This is it:
Memorable Example.
once the city of Rome burned under Emperor Nero. There is
some doubt whether this occurred by accident or at the command of
this prince; read the authors Tacitus, Suetonius, Dio, Sulpitius, Baro-
nio, and others. Certainly the most persistent rumor put the blame
on the prince, but he immediately transferred it to the Christians.
Because the rumor spread among the common people that Chris-
tians were criminals and capable of anything, he first ordered some
of them to be seized and tortured. Once they had been overcome by
their torments, they confessed and then implicated or denounced
others, so that from the denunciations and torments of these first
ones there was soon a huge crowd of convicts who were guilty of
the conflagration and of being the greatest enemies of the human
race. Therefore, as arsonists and the greatest enemies of the human
race, they were then executed through a variety of deaths. Indeed
some were wrapped in animal hides and torn apart by dogs, others
were nailed to crucifixes, others burned, and when the day ended they
were burned as night lamps, for they were affixed to stakes, spread
around the amphitheater, and then covered with pitch and resin and
bound up. So when lit, they flared up like torches. Juvenal alludes to
this when he says in the Satires, 1.
Hellyer text 4/14/03 12:55 PM Page 224

224 cautio criminalis

Take Tigillinus—you will shine in that torch in which
they blaze standing, who smoke with their throats transfixed.*
The words of Cornelius Tacitus, a reliable author on this whole
matter, are vivid when he says in the Annals, book 15:†
Therefore in order to suppress the rumor he punished with exquisite
tortures those who were hated for their disgraceful behavior and commonly
called Christians, etc.‡ First some were arrested who confessed. Then on
their evidence a huge multitude was convicted, not so much for
the crime of arson, as for their hatred * [marginal note: *Hence perhaps
the Unholden of the Germans] of the entire human race. To those dying he
added derision, for example some were wrapped in the skins of wild beasts
and finished off by being torn apart by dogs, or they were nailed to crosses,
or burned, and when the day drew to a close they were burned in the fash-
ion of night torches. Concerning this example the reader should note
and consider the following points.
first, Nero’s case against this huge multitude rested upon this
evidence or proof: 1. Rumor, which made the Christians sound as
evil as possible. 2. Their own confessions made under torture. 3. De-
nunciations by those confessing. In this way completely innocent
people were in the end convicted as arsonists and enemies of the
human race.
second, God allowed not just a few people to be convicted in
this way and die, but a huge number.
third, the Church cherishes as martyrs all those who died after
being convicted in this way for this very reason and celebrates their
memory on the twenty-third of June where the Martyrologium Ro-
manum§ says this about them: They were all disciples of the apostles and
the first fruits of martyrdom which the Roman Church, a fertile field for
martyrs, sent to the Lord even before the death of the apostles.
fourth, it is not prejudicial to their martyrdom that having
been overcome by their torment, they named themselves and others
as guilty, for the Martyrologium simply calls them all martyrs. If you

* Satires, 1, lines 155–56.

† Annals, chap. 44.
‡ Here Spee skips over Tacitus’s brief account of the spread of Christianity to
Rome.
§ Caesare Baronio (1538–1607), Martyrologium Romanum (many editions, includ-
ing Cologne and Mainz). The Roman martyrs are commemorated on 24 June.
Baronio was a cardinal and Vatican librarian.
Hellyer text 4/14/03 12:55 PM Page 225

appendix 225

examine the Martyrologium, which recites Tacitus’s very words, you

will easily understand that the Martyrologium is not speaking about
some and Tacitus about others, but they are clearly speaking about
the same ones. Also if you like, see the annals of Baronio for the year
ad 66 and Sulpitius Severus, Historia, book 2.*
fifth, therefore that steadfastness which prevails over torments
and denunciations was available neither to the martyrs, nor to the
disciples of the apostles, nor to those fighting with the very first fer-
vor of Christianity.
sixth, Nero’s intent in using those torments was that those tor-
tured should confess that they were guilty. If that is not what is
intended by the use of torture today, then what, I pray, is intended?
Recollect what we said above throughout. Because if something else
is intended, then I will rejoice, for all is well.
seventh, however, even if judges now intend something other
than Nero did, even if they have more evidence to rush to torture
than he did, that does not mean that torture does not have the same
force now that it did then. Therefore, just as torture and denuncia-
tions could make a completely innocent person guilty then, so they
can now. And if those people are truly guilty who are denounced as
guilty now, then they were truly guilty who were denounced as guilty
then. Certainly the intention of Nero’s judges was not the same as
his, nevertheless those martyrs were convicted by their rulings.
eighth, since Nero made a huge multitude of such saintly
people guilty with these tortures and denunciations, there is no
doubt that if he had wanted to go further, he would never have found
an end to the guilty. For just as so many were convicted, so the rest
could have been convicted, and this is also the reason why if we con-
tinue to press on with denunciations today, it is impossible that an
end will ever come.
you will say, Baronio thinks that in the example given Tacitus
is lying in claiming that some Christians once overcome by torments
falsely made themselves and others out to be guilty.
i answer, others who are a little more clearly acquainted with
the force of torture than most think that Tacitus is not lying. And of
course since Nero’s tortures were conducted judicially and sentences

* Baronio’s massive Annales Ecclesiastici was a history of the Church until the year
1198. Sulpitius Severus (c. 363–c. 420) was a Gallic Christian whose Historia Sacra
or Chronica chronicled world history from the creation.
Hellyer text 4/14/03 12:55 PM Page 226

226 cautio criminalis

handed down, it is not credible that the Christians were punished
without confessing, still denying their guilt. For that would have
been entirely contradictory to Nero’s intention, since that would
have strengthened the rumors circulating about him instead of elim-
inating them. Tacitus was not more unjust to the Christians in this
matter than to Nero, but rather he supported them and, if you pay
attention, hints well enough that the Christians were innocent and
instead Nero was guilty. But Baronio should not be amazed that
even saints should yield to such exquisite pain at the beginning, then
regret it and recant in vain, and nevertheless be adorned with mar-
tyrdom. For today if any of the most saintly men should be subjected
to our interrogations, they would equally succumb. I have not yet
heard anyone who has watched these tortures close up even once
deny this regarding themselves.
But these things will one day be clearer before the tribunal of
god. Farewell now, Reader, keep this example in mind, and fear the
Divinity.

THE END.
Hellyer text 4/14/03 12:55 PM Page 227

SOLEMN DECLARATION.

If I have written anything which is displeasing to the Holy Roman Church,

let it be false; I damn and abhor it. Likewise anything which should un-
justly offend anyone, etc.
Hellyer text 4/14/03 12:55 PM Page 228
Hellyer index & series 4/14/03 12:56 PM Page 229

index
Abraham, 45 Cautio Criminalis: publication of, xiii–
Aelian, Claudius, 73 xiv; translations of, xxxii, xxxiii, 221
Alme, xvi charity, xxix, xxxi, 60–61, 69, 128, 146
Athanasius, Saint, 36–38 Cicero, Marcus Tullius, 74
Augustine, Saint, 46; City of God, 106, Claro, Julio, xx, 59, 75, 88, 92, 128–
108, 163 29, 132–33, 134, 141, 144, 149
authority, 147–48; disreputable, 173– Cologne, vii, viii–ix, xiv, xv; electorate
78; intrinsic and extrinsic, xxvii, 27 of, xxii; University of, xiv
Auxerre, Council of, 118 confessions (judicial): condemnation
without, 150–55; congruence of,
Balve, xvi 110–11, 202–3; invalid, 65; reliabil-
Bamberg, vii, xvi ity of, 106–12; retractions of, 124–
Baronio, Cesare, 223–26 26. See also denunciations
Bavaria, opposition to witch trials in, confessions (sacramental), confiden-
xxi, xxiii tiality of, 119–20
Baving, Hermann, xiii confessors, xxxi, 183; abusive, 68–72,
Binsfeld, Bishop Peter, xv, xx, xxi, 26 n; 116, 118; assisting in torture, 72,
Tractatus de Confessionibus, 21, 26, 103, 117; corrupt, 33, 69; haughty,
36–38, 41, 42, 83, 136, 141–42, 144, 53; ignorant, 70–71; indiscrete, 120–
145, 155, 159, 167, 170, 172, 173, 23; lessons for, 113–26; patience
175, 189–202, 208, 213 required of, 70; prudent, 118–19;
Bodin, Jean, 15 troublesome, 153–55, 218
Bruni, Francesco, 130 confiscations, 55
Büren, xvi Corpus Iuris Civilis, xxi; citations of, 19,
Busenbaum, Hermann, xii 59, 64, 69, 73, 79, 86, 87, 93, 129,
142, 155, 159, 200
Calepino, Ambrogio, 35 Cosmas and Damian, Saints, 37
Canon Episcopi, 15 Cyprian, Saint, 37–38
Caroline Criminal Code (Carolina),
xix, 3, 55, 64, 79, 109, 156, 158, Damhouder, Joost, 92, 128, 163
159, 171, 172, 199, 200; inadequacy Damian. See Cosmas and Damian,
of, 56 Saints
casuistry, xii, 212. See also moral theol- Daniel, Book of: story of Susanna, 18,
ogy; probabilism 36
Hellyer index & series 4/14/03 12:56 PM
230
deaths in custody, 162–67, 218
Delphic Oracle, 164 n
Delrio, Martin, 15; Disquisitiones
Magicarum, xx, xxvi, 18, 26, 37, 38,
41, 42, 56, 64, 83, 86, 87, 92, 95,
117, 134, 135–36, 137, 143, 152–53,
155–57, 167, 170, 172, 176, 189–90,
208
denunciations, xix, 170–87, 198–214,
219–20; as Satan’s weapon, 178–79,
183–84; confirmed by confessions,
204; convictions impossible with-
out, 208–10; role in trials, xxiv–xxv.
See also confessions (judicial)
de Soto, Dominico, 21
devil, xvii–xviii, xxx, 24, 35, 37–38, 40,
59, 98–99, 103, 108, 148, 154, 171–
72, 178–80, 182–84, 197, 203, 205–
6, 210, 220; deceiving at sabbaths,
185–98; mark of, 167–70; murder-
ing prisoners, 162–67, 218
disputations, xxix–xxx
emperor, appeals to, 67, 132. See also
Ferdinand II
enthymeme, 179, 205. See also
syllogism
Eucharist, 71, 209; viaticum, 155
evidence, 179–80; assessment of, 130–
32; from authority, 147–48; cate-
gories of, 128–29; from enemies,
174–75; invention of, 95–98, 219;
for secret crimes, 144–50; for tor-
ture, 87–88, 129, 136–37, 142–43.
See also rumors
excepted crime (crimen exceptum), xix,
18–19; evidence in, 141–44; greater
care needed with, 23–28; harsher
torture used in, 75–77; lawyers per-
mitted in, 58–62, 63; method of try-
ing, 19–20
executioners, 169; authority of, 164;
excessive influence of, 78–79, 81–
82; making suggestions, 81–82, 110,
219; themselves executed, 41
Page 230
index
exorcism, 97, 99–100, 103, 139–40,
219
Farinacci, Prosper, xx; Praxis et Theor-
ica Criminalis, 20, 59, 65, 75, 86,
87–89, 92, 93, 99, 129–30, 133, 134,
135, 141–42, 145, 151, 152, 159
Ferdinand II, Emperor, 57
Frankfurt, xiv
Fulda, x, xv
Germany: blindness of, 83; excessive
credulity of, 16–18
Goehausen, Hermann, 176–77, 205,
213
Gronaeus, Johannes, xiv, 4
heretic, 45–46
Hippolitus, 145
Homer: Iliad, 161; Odyssey, 137
Horace: Sermons, 218 n
Ignatius of Loyola, viii
Imperial Chamber Court, 3
In Coena Domini (Papal Bull), 61, 217
Index of Forbidden Books, xiv
Ingolstadt, University of, 40
innocence: impossibility of proving,
84; judges’ disregard for, 54; pre-
sumption of, 46, 53–54, 65, 68–72
inquisitors. See judges
Iordanaeus, Ioannes, 170 n
irregularity, 72, 117, 122
Isaiah (Prophet), xxx
Italians, skepticism of witch trials, 52
Jesuits, viii, 219 n
Jesus Christ, 16, 22, 44, 45, 48, 114; as
advocate, 29
John Damascene, Saint, 23
John the Baptist, 70
judges, 130–32, 181–83; applying
excessive torture, 77–78; corrupt,
40; future punishment of, 137, 185;
ignoring the defense, 65–66; inexpe-
Hellyer index & series 4/14/03 12:56 PM
index
rienced, 53; lax consciences of,
79–81; lust for torture, 89; making
suggestions, 80–82, 162; necessary
attributes of, 52; poor character of,
41; poor judgment of, 109, 168,
178–79; swindling, 55; themselves
executed as witches, 40; unwilling to
acquit, 90–91; wicked, 137, 160–61
Justina, 37
Juvenal: Satires, 223–24
language, judges’ twisting of, 35–36;
67
lawyers: deterred from defending, 64,
74; excluded from prisons, 64;
greedy, 50; prisoner’s right to,
58–63
Laymann, Paul, xxi, xxii, 27 n; Theolo-
gia Moralis, 27
Leibniz, Gottfried Wilhelm, xv, xxxii
Lessius, Leonard, 86, 107, 129, 133,
144
Lippstadt, xxii, 33
logic, xxvii–xxviii, 147; circular, 170,
195–96. See also syllogism
Loos, Cornelius, xx
Lucius, Peter, 3
Lydian stone, 181
magical arts, 104
Mainz, vii; University of, x
Malleus Maleficarum, xx, 64, 93–94, 98,
128, 171–72, 197
Marburg, 4
Martyrologium Romanum. See Baronio,
Cesare
martyrs, 37; early Christian, 223–26
Mascardi, Giuseppe, 20, 129–30
Midelfort, H. C. Erik, xx, xxxii
money, corrupting judges, 25, 55, 91,
215
Montanum college, viii, x
moral danger, 43, 72–73, 80, 112
moral theology, xii, xiv; 26 n, 159 n,
192 n. See also casuistry
Page 231
231
Mynsinger von Frundeck, Joachim,
129, 130
natural law, xxvii, xxxii, 19, 173–75,
180; defense permitted by, 59–61,
63
Navarra, Petrus, 107
Nero, Emperor, 223–26
Nickel, Goswin, xiv
Niobe, myth of, 102
officials. See judges
Ostermann, Peter, 170 n
Paderborn, xvi; University of, xi, xii,
xiii
parable of the tares/weeds, xxi, 44,
45–46, 48, 50, 51
Paul III, Pope, limits on torture, 76,
93
Paulus, Julius (Paul the Jurist), 82
Peine, xii
Pelcking, Bishop Johannes, xiii
Perillo, 75
Phalaris, 75
Plautus, 78
Porta, Giambattista della, 186
preachers, obligations of, 47–48
princes: future punishment of, 137,
208; guilt of, xxx–xxxi, 62, 80, 102;
ignorant, 161–62; obligations of,
28–35, 44, 47–49
probabilism, xxix, 26 n, 159 n, 202 n;
exceptions to, 27. See also casuistry;
moral theology
quaestio, xxii
Quinken, Johannes, xxii, 33 n
reason, xxvii, xxxii; and practice of
trials, 20
Rémy, Nicolas, xxvii, 15, 83, 167
retractions of confessions, 155–62
rhetoric, xxviii
Rinteln, vii; Faculty of Law, 3, 176 n
Hellyer index & series 4/14/03 12:56 PM
232
Roestius, Peter, xiv
Rome, fire of, 223
Ross, Balthasar, 40
rumors, 215, 220–21; as evidence,
xxiv–xxv, 132–38, 141–44; in
excepted crimes, 141–44; unproven,
138
Rüthen, xvi
sabbaths, xviii, 15, 79, 80–81, 109,
110, 198, 200–201, 203, 205, 212;
imaginary, 185–86; witches deceived
at, 26, 38, 187–98
Satan. See devil
Sattler, Gottfried, 40
Schönborn, Archbishop Johann
Philipp von, xv, xxxii
scriptural citations: Gen., 45; Exod.,
16, 21; Job, 104 n; Ps., 5, 36; Prov.,
124, 163; Eccles., 5, 71; Isa., 115 n,
138 n, 222 n; Ezek., 139; Dan., 3,
18; Amos, 85; Matt., 23 n, 45, 115 n,
121 n; Luke, 115 n; John, 23, 197;
Rom., 21; 1 Cor., 36, 121, 124,
179 n; 2 Cor., 115 n, 187 n, 197; 1
Tim., 115 n; 2 Pet., 36; 1 John, 29 n
Seneca: De beneficiis, 13
shaving of suspects, 127–28, 217
slander, 50, 133–34, 138–41
Society of Jesus. See Jesuits
Sodomites, 45
sorcery of silence, 98–101; supposed
signs of, 101–4
Spaniards, skepticism of witch trials,
52
Spee, Friedrich (von Langenfeld), ix;
biography of, viii–xv; doubts on
existence of witches, xxiii; experi-
ence of witch trials, xv–xvi, xxvi;
Güldenes Tugendbuch, xi, xiv; hymns,
xi; identified as author of Cautio
Criminalis, xiii, xxxiii; Trutz-Nachti-
gall, xi, xiv
Speyer, x, xi
stigmata, xxii–xxviii, 42, 167–70
Page 232
index
Suetonius, 223
Sulpitius Severus, 223, 225
superstition, as source of witches,
16–17
syllogism, xxvii–xviii, 112–13, 206–7.
See also logic
Sylvanus, Bishop, 36–38
Tacitus, Cornelius: Annals, 223–24
Tanner, Adam, xxi, 22 n, 64; opposi-
tion to, 31; threats against, 33–34,
131; Universa Theologia Scholastica,
xiii, xxi, xxii, 22, 24, 26, 38, 39, 44–
47, 56, 59, 63, 71, 90, 95, 124, 130,
152 n, 156, 170–71, 174–75, 181,
185, 208, 209, 213 n
Terence, 78
testimony. See evidence
theologians, naïve, 49–50, 192
Thirty Years’ War, xv
Thomas Aquinas, Saint, 46, 209 n
Thomasius, Christian, xxxiii
Tolosanus, Petrus Gregorius, 75
torture, xviii–xix, 217–19; banishing
disrepute, 172–73, 175–76; causing
moral danger, 72–86; eliciting false
confessions, 74–75; following
retractions, 160–61; harsher in
excepted crimes, 75–78; inability to
reveal truth, 104–6; invalid, 98–100,
152; irresistibility of, 83–84, 107–8;
numbness during, 104; pretexts for
repeating, 91–95; repetition of, 86–
90; Spee’s limits on, xxiv; used with-
out distinction, 78
torturers. See executioners
Tricoronatum college, viii, xii
Trier, x, xiv–xv, xx
Virgil: Aeneid, 208
virtue, 16
Vitelleschi, Muzio, x
Wesenbeck, Matthaeus, 86
Westphalia, Duchy of, xvi
Hellyer index & series 4/14/03 12:56 PM
index
Weyer, Johann, xxiii
witchcraft: ineradicability of, 21;
learned conceptions of, xvii–xviii;
number of executions for, xvi–xvii;
princes’ responsibilities in, 30–31;
type of crime, 18–19, 201
witches: credibility of, xxv; deceived
by devil, 185–87; existence of, 15–
16; source of, 16–18
witches’ mark. See stigmata
witch trials: book on, 26 n; by water,
42; dangers in, 72–86; defense
ignored in, 65–66; disgrace caused
by, 44; end of, xxxii; inability to cor-
Page 233
233
rect, 25–26; innocent people in, 36–
42; irresistible spread of, 52; need
for new procedure in, 56–57; nega-
tive effects of, 23–24; opposition to,
xx–xxii; proper precautions in, 52–
58; skeptics in, 26, 39; twofold
method in, 42–44; unjust, 43
Wittelsbach, Archbishop Ferdinand
von, xvi, xxii
women: abuse of, 68; fragility of, 75;
testimony of, 174; type tried, 24
Worms, x
Würzburg, vii, xv, xvi; University of, x
Hellyer index & series 4/14/03 12:56 PM Page 234

Studies in Early Modern German History

H. C. Erik Midelfort, Mad Princes of Renaissance Germany

Arthur E. Imhof, Lost Worlds: How Our European Ancestors Coped with
Everyday Life and Why Life Is So Hard Today, translated by Thomas
Robisheaux
Peter Blickle, Obedient Germans? A Rebuttal: A New View of German
History, translated by Thomas A. Brady Jr.
Wolfgang Behringer, Shaman of Oberstdorf: Chonrad Stoeckhlin and the
Phantoms of the Night, translated by H. C. Erik Midelfort
B. Ann Tlusty, Bacchus and Civic Order: The Culture of Drink in Early
Modern Germany
Friedrich Spee von Langenfeld, Cautio Criminalis, or a Book on Witch
Trials, translated by Marcus Hellyer