Part Two: the Laws

Copyright 2000 Max Dashu

.Early Witch Hunts

Magicians, enchanters, conjurers of storms, or those persons who through invocation of demons throw into confusion the minds of men shall be punished with every kind of penalty. -- Breviarum of Alaric, 506 CE [H.A. Kelly, 49]

The earliest written laws of the Germanic tribes reveal attitudes toward witches ranging from toleration or indifference to insults and death. In the earliest laws, economic and legal sanctions, where they existed, were more concerned with establishing safeguards against false accusations than in hunting down magical harm-doers.

But the accusation of sorcery was quickly becoming a social weapon. Several law codes show that to call a woman a witch was considered a defamation of character. Significantly, the name used is not native Germanic but rather an imported Latin term: stria, striga, strix, This word was loaded with the baggage of Roman stereotypes and witch persecution. Condemnations of strie or strigae occur in several law codes: the Lex Salica, the Pactus Alemannorum, and the Edictus Rotharii.

Around 670, in the northern Italian kingdom of Rotharius, a person who called a woman whore or witch (masca) faced trial by combat (with a male champion, if female). If the accusation was not "proven" by the trial of battle, the accuser had to pay compensation in the amount of the defendant's wergild (death-fine)--to the male guardian of the woman accused.

Around the year 600, the Alemannic laws imposed fines of 12 solidi on women who called other women striga or herbaria. Again, these Roman names signal a major shift in attitudes toward witchcraft in southern Germany. Roman methods of prosecution had begun to penetrate the Alemannic culture. A clause in the Pactus Alemannorum allowed for the torture of women accused as witch or herbwoman. [#33, in Von Franck's "Geschichte des Worte Hexe"] But it still forbade individuals form seizing an accused witch and harming her.

There was no penalty for witchcraft in the oldest redaction of the Franks' Salic law. It levied a fine on persons who called a woman stria without being able to prove it. Some codexes read "witch or prostitute." [von Franck, 627] The same penalty faced those who taunted a man as hereburgius, "one who carrie[s] the cauldron to the place where witches meet." (Another redaction has strioportius, carrier for a witch.) [Lea 406, Lex Salica Tit. lxiv; Baroja, 59; Grimm cites the variant chervioburgium as cauldron-carrier for a witch; see also Russell, 69] It was not customary to accuse men of being witches, so insult was offered instead by claiming that they served the (female) witches.

New fines were added as penalties for poisoners, or those who cause a woman to abort or do harmful sorcery, including impotence magic with ligatures. [Cauzons, 72-3] (Once again, sexual politics enters into the definition of Who is a witch. A later passage imposed a large fine of 200 solidi, to be paid by a stria for eating or magically consuming another person. [Baroja 59-60] Here is the classic devouring-sorcerer met with in many cultures. The Salic law still treated such cases like other cases of personal injury and killings. The Ripuarian code too treated killing sorcery like any other murder, with wergild compensation paid to the victim's kin. Most other codes of this early period don't mention cursing to death. [Lea, 406-9]

But the legal standing of witches was further undermined as barbarian kings converted to the new religion. There are very early indications that the lordly class was using the sorcery charge against commoners and women. We have already seen sixth-century bishops passing laws against serfs who bewitched their lords' drinking-horns, and it's clear that some alarm had spread among rulers over unseen powers that their servitors might use against them.

The north Italian code Edictus Rotharii chided the belief in women consuming another person's innards, and forbade execution by fire of those accused, who all seem to have been at the bottom of the class scale: "No one should presume to kill the serf or servant of another as witch, which they call masca..." Such murderers are ordered to pay a fine, to be divided between the woman's master and the king. The code's author adds that to believe that a woman can consume a living person's innards is contrary to christian mind. [Lex Rotharii , cap 376 (Lea) or 379 (Grimm)]

While much has been made of the tolerance of this prohibition, the Rotharian law left a gaping loophole for lords who killed their own subjects as mascae, particularly female serfs and slaves suspected of rancor against their masters. No law code in Europe provided any protection for such peasant women from their lords. Their license to murder their bondswomen remained a baronial privilege to the end of the middle ages, and longer in some regions.

Edictus Rotharii: #197. Man [husband] who has mundium of a girl or free woman, who calls her witch, has to give up guardianship to her relatives or to the king. But if he denies it, he is allowed to purify himself, and keep the mundium. #198. If he defames as witch a free girl in another man's mundium, he must pay him wergild according to her status, if he can't prove his allegation. [Geschichte des Wortes Hexe, Von Franck]

The greatest penalty for witchcraft, one that quickly gained currency across Europe, was to be burned alive in a ritual or symbolic purgation by fire. The earliest references to this form of witch-execution come from the late Roman empire, and it is in the regions most affected by Roman culture that we find the oldest mentions of it in feudal times--in Italy, Spain, and France. There the death by fire appeared during the first vigorous attempts to institute christianity as the official religion.

In France, a late recension of the Salic law ordered those who killed by incantations to be burned alive. [Lea, 408-9] The Visigoth kings began to burn witches after a long campaign by Spanish clerics to reintroduce the harsh imperial codes against pagans and "sorcery." Lea commented, "It is significant of the barbarian tenderness for human life, however, that the penalties were greatly less than those of the savage Roman edicts." [MTHW, 399]

However, Roman law was beginning to influence the barbarian kings. Alaric II reintroduced the Justinian death penalty for worshipping "demons" in his Lex Romana Visigothorum (506) This code (vi, 2, 5) prohibited "maintaining the execrable pronunciations of the diviners, giving answers of health or sickness." Its reference to "the place where the arioli and ariolae were" suggests that the diviners could still be found in designated sanctuaries. [Grimm, 1317] Luckily this code was not in effect for very long. Alaric was a Christian but the clergy considered him a heretic, as a follower of Arius, as most Germanic Christians then were.

Recared was the first Spanish king to convert to catholicism. He stripped the right to testify from witches and diviners and those who consult them. His successor Egiza authorized the torture of slaves to get testimony against masters accused of such pagan activity. [Lex Visigothorum iii 4, 10-11 has torquere, to wring out confessions.Grimm] This came straight out of Roman law.

[Scan graphic of Utrecht Psalter, early 800s: Rulers repressed pagans with public floggings, fines, land seizure and enslavement. ]

Chindaswind, another Visigothic king, penalized Spanish people who invoked pagan deities with public floggings and enslavement. Those convicted of harmful sorcery as well as those who "offer nocturnal sacrifices to demons and sinfully invoke them by impious prayers... will receive 200 lashes in public; they shall be shamefully shorn, and in this state, be forced to traverse the ten villages neighboring their homes, so that their example will serve as a correction to others." [Cauzons, 76] Such methods of public humiliation continued to be practiced by episcopal authority and were taken up many centuries later by the Spanish Inquisition.

Chindiswind's laws also prohibited "consulting diviners, soothsayers and enchanters," LIke his predecessors on the throne of Rome, he was anxious that "servants and simple folk" were applying to such people to find out whether the king was well or about to die. [vi 2. 1 & 5, in Grimm 1317; Baroja 52] By 689 we read of Visigoth rulers burning Spanish sorcerers and Jewish astrologers.

These seventh century laws passed into the Fuero Juzgo, the foundation of medieval Spanish law. [Lea, 399-400] It refers to the punishment of people holding night vigils and festivals with offerings and dances in the seventh century. [Backman, 95] Fuero Juzgo kept this repression current, prescribing 200 lashes, branding and public humiliation for diviners and "those who speak with the devils," as well as for those who consult them. [Canellada]

As Frankish kings embedded tough new penalties for sorcery in the formerly tolerant Salic law, the severe fines often meant that commoners who could not pay them were sold into slavery. Churchmen also decreed loss of freedom as the penalty for witchcraft. In 589 the Council of Narbonne condemned the carages / caraïos, diviners who were popular all over the south of France, to be whipped and sold as slaves. Anyone who consulted them was excommunicated and fined six ounces of gold. There was strategy in this; the churchmen enlisted the support of the secular ruler by designating him as the recipient of the fines. The bishops at Narbonne also agreed to penalize pagan loyalists who refused to work on Thursdays. Those who were free were excommunicated, but slaves received 100 lashes. Here again the Church preserved the class bias of Roman law. [McKenna, c 116]

In Italy, the Lombards also adopted this strategy of enslaving pagans. Those accused of "sorcery" were to be sold into slavery outside the province. The judge and other officials split the money from the human sale. As if this was not enough of an inducement to convict, the law took an extra precaution that indicates the reluctance of some officials to apply these repressive statutes. It levied huge fines on judges who refused to prosecute or condemn "sorcerers". The public was also subject to large fines for consulting or failing to inform on "sorcerers," or for chanting incantations themselves. [Lea 411, MTHW] These laws created a historical necessity for the people to outwardly submit to christianization, while retaining their old religion in secret.

Women's Sorcery

Church and state both declared women inferior to men. Their movement and inheritance was limited. They had no legal standing except through male guardians. They had no recourse against philandering husbands, though men could cast off their wives on the pretext of adultery or barrenness. And husbands held other privileges over wives. By accusing them of infidelity or magic, Germanic husbands could literally put them through an ordeal, as legal, historical and folkloric records attest.

It was common knowledge that women were at a disadvantage in the patriarchal scheme of society, and expected that they would find ways to assert their own needs and desires. Older avenues of power were known to women from the wellspring of folk culture. Chanting over herbs and knotted cords, wearing amulets, giving herbal potions to be drunk, all were used in protective magic, love spells and luck charms. Such rites could also be used to repel unwelcome sexual advances. Popular opinion recognized these as effective.

Women were often suspected of preparing magical filtres for men to drink. Unhappily married women, concubines who hated their masters, young peasants hemmed in by the unwelcome attentions of ranking warriors, and many other women had reasons to perform rites hoping to decrease male desire or to deflect it. But such power was a threat to the authority of lords and husbands, and hit them where it counted most.

Some of the first laws against witchcraft in feudal Europe took aim at women's influence in sex relations. They forbade ligatura ("knotting" or "tying") leading to male impotence. Frankish rulers amended the Salic law so they could fine those who bewitched men with knotted cords. [Lea, 409] This spell turns up in witch-persecutions for the next thousand years. The French called it nouer l'aiguillette: "to tie up the thong" or "to knot the breechclout," a clear metaphor for binding up a man's loins.

The spell of ligatura was considered so effective that churchmen adapted its otherwise rigid marriage doctrine to allow for it. Bishop Hincmar of Reims declared that couples might separate (something he otherwise refused to concede) when sorcery had prevented intercourse. Male impotence was one of the few factors that could invalidate a church marriage. [Hincmar Epist. 22 (PL 126, 151) in Kelly, 61; Lea MTHW, 162-70]

The subject of castrating witches has a two-thousand-year history, kept alive by anxious theologians and magistrates. Laws against ligatura and all sexual magic continued to appear regularly in the canons of the church and flowed easily into later demonological dogma. Witch-hunting inquisitors were still obsessed with impotence magic in 1486. So were "secular" judges in the 16th and 17th centuries (still deeply obsessed with demonology and witchcraft), and canon lawyers in the 18th.

The Sorcery Charge in the Frankish Court

Ligatura figured among the pretexts for the earliest known use of the sorcery charge as a purely political weapon. It served one of the most ruthless members of the Frankish court, which was embroiled in violent intrigues, murders and wars.

Clovis, the king who had converted to christianity and decreed it the official religion, divided his kingdom among his sons. One of those princes, Chilperic, was married to the commoner Audovera and also kept a concubine, Fredegonde. After Audovera bore him three sons, he repudiated her in order to marry the Visigothic noblewoman Galswintha, who brought a rich dowry. Chilperic set aside Fredegonde for awhile, but soon consorted with her again openly. The proud Galswintha declared that she would return to her family. In 567, before she was able to leave, Chilperic had her strangled. [Lea, Cauzons, Baroja, 53]

Galswintha's sister, Brunihildis (Brunhilda, Brunehaut) who was married to Chilperic's brother, swore blood-feud against Galswintha's murderers. Meanwhile, Fredegonde had Chilperic's brother assassinated. When Brunihildis took over the rule of his Austrasian domain, Fredegonde tried to do her in as well, but failed. The two women feuded for 40 years. Chilperic himself was murdered in 584. At the age of 80, Brunhildis was at last overcome, and Fredegonde's son had her enemy tortured for days and finally dragged to death by horses. [Lea 410-11, Durants, 614]

Fredegonde, who had risen to become queen of the Franks, began to accuse her enemies of magically causing harm to her kin. She used the sorcery charge to eliminate Mummol, the king's favorite. [Accounts of the accusation differ; Lea has it causing the impotence of her grandson, while Cauzons and Summers (Geography, 354-5) say it was causing her son's death by dysentery.]

The queen had a number of Parisian women arrested and tortured. They were forced to say that they were witches who had killed many people and that Mummol hired them because he was doomed to die. The gist was that he sacrificed the prince's life in order to save his own. Fredegonde ordered some of the women burned, others strangled, while still others were broken on the wheel. She denounced Mummol to the king, who had him bound and tried for sorcery.

Under torture, the once-court-favorite wouldn't confess to killing the prince but finally said he had used unguents and brews to gain royal favor. The torture resumed. When Mummol was nearly dead, Fredegonde released him, confiscated his property and sent him off to Bordeaux in a cart. He died en route. Legal safeguards against false accusation had proved useless when the accusers were members of the ruling family. But most historians pass over the torture and execution of the scapegoated women, concentrating on what happened to a powerful man in the court.

Another sorcery trial instigated by Fredegonde involved the issue of succession to the throne. Having fought her way from concubinage to queendom, Fredegonde wanted to see her own offspring wearing the crown. In 578 she accused her stepson Clovis (by the king's first, royal wife) of killing two of her sons with the magical help of his concubine. [Left: Fredegonde's tomb]

The old mother of the concubine was tortured into "confessing" that she had caused the young princes' deaths. Her quick retraction did not save her. She was gagged and burned, her daughter impaled. The torture-testimony enabled Fredegonde to get Chilperic's assent to his own son's execution. [Lea 110-11; Cauzons, 100-2]

Going after women's obstetrical medicine

In Spain, the Visigoths also outlawed ligatura and other sexual magic. Lawmakers feared that "certain women" were able to use herbal filtres to control their husbands so that they would not be able to accuse them of adultery in court, or to leave them, even if the women were having affairs with other men. [McKenna, 122] Once more, as with the Bohemian witches, the fear was that women would find magical ways to overcome social restrictions and assume privileges reserved for men.

Rulers harshly discouraged female sexual self-determination in other ways. Secular Bavarian laws imposed on obstetrical witches the same penalties we have seen elsewhere assigned to "sorcerers": heavy scourging and enslavement:

VIII 18. If any woman gives a drink so that she causes an abortion, if it is a maidservant, let her receive 200 lashes, and if it is a freedwoman, let her lose her freedom and be assigned to slavery to whomever the duke orders. [Rivers, 141]

Two hundred lashes is the most severe penalty short of execution, and actually amounted to it in some cases. Such a vicious lashing inflicted on a bondswoman could easily be fatal, depending on the zeal of the men who flogged her.

The Alemannic laws of 700 fined "anyone who causes abortion in pregnant women." [XXXXVIII, in Rivers] In Spain, the Visigothic Forma Iudicum (654) ordered the death penalty for women who prepared abortifacient potions. A freewoman who sought to obtain the herbal drink was to be enslaved to whomever the king named, while a female slave was flogged with 200 lashes. [McKenna]

The near-uniformity of these laws points to priestly pressure on rulers to criminalize previously lawful acts that were previously lawful, setting criminal penalties on canonical offences. Long before the Spanish and Bavarian laws were enacted, monks and bishops had declared war against women's traditions of birth control.

Next: Herbs, Knots, and Contraception

Kings Versus Witches: Legendary Accounts

Excerpt from Secret History of the Witches (forthcoming)

Copyright 2000 Max Dashu

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