Stage #5: Hiring a Lawyer

by Jenny Gibbons

Step #5: Hiring a Lawyer

After a Witch was accused, she had a right to hire a lawyer. Not that this was much consolation for Witches, mind you, since the majority of them were poor. But on some occasions the courts of the Inquisition would appoint a lawyer for people who couldn't afford to hire one. All of the court's evidence -- except for the names of the Witch's accusers -- was made available to both the lawyer and the Witch.

That was the theory. In practice, lawyers were as unpopular in the Burning Times as they are today. Many courts didn't think they served any useful purpose at all and forbade them. France, England, and Massachusetts all outlawed lawyers for a period of time. And a few countries which normally allowed lawyers, denied them to Witches. In Poland Bishop Czartoriski instructed the courts that they were not to allow Witches to have legal representation or to see the evidence that was presented against them.

Czartoriski, admittedly, was an extremist. Even the Malleus Maleficarum thought that Witches ought to get lawyers -- with a couple of reservations. First, the judge selected the lawyer. "An Advocate is not to be appointed at the desire of the accused, as if he may choose which Advocate he will have." Second the judge should explain to the lawyer that defending a heretic was heresy. If he thought that his client really was a Witch, he was required to drop her case or else he, too, could be excommunicated or tried as a Witch:

"It is not a valid argument for him to say to the Judge that he is not defending the error, but the person. . . For it is granted that he does not defend the error; for in that case he would be more damnably guilty than the witches themselves, and rather a heresiarch [leader of heretics] than a heretical wizard. Nevertheless if he unduly defends a person already suspect of heresy, he makes himself as it were a patron of that heresy, and lays himself under not only a light but a strong suspicion."

Henry Cornelius Agrippa, a 16th century mage, got himself into a lot of hot water by successfully defending a Witch. The inquisitor who lost the case was so furious he threatened to prosecute Agrippa instead.

The Malleus's third warning is that the judge should take care not to appoint a lawyer who would slow the trial down, for "such cases must be conducted in the simplest and most summary manner, without the arguments and contentions of advocates." That meant, the Malleus explained, that the lawyer must not use "prolixity or pretentious oratory," "legal quirks and quibbles," counter-accusations, "fallacious arguments or reasoning," or appeals. What was the lawyer supposed to do (other than collect his fee?) Basically, the Malleus thought that the purpose of a lawyer was to convince his client to confess and speed up the trial.

Finally if a lawyer disregarded all the judge's warnings and started making a pain of himself, the Malleus said he should be dismissed. "Much danger may arise from an improper conducting of the defense by an Advocate or Procurator. Therefore, when there is any objection to the Advocate, the Judge must dispense with him and proceed in accordance with the facts and the proofs."

I've said before that the Malleus is not a good guide to how Witch trials were really conducted. Well, this is one of those instances where you have to take it with a grain of salt. Even though the Malleus makes them sound quite useless, our trial records show that lawyers often were a great help. If they hadn't been helpful, the courts wouldn't have worked so hard to get rid of them!

When Norway allowed Witches to have legal representation, Witches could suddenly sue their captors if they were mishandled. Illegal forms of interrogation -- torture, swimming, forced examinations -- virtually disappeared after several Witches won large settlements for their mistreatment.

Moreover by publicizing the abuses common in Witch trials, these counter-suits helped put an end to the Burning Times in Norway. A timely lawsuit helped Andover, Massachusetts, escape Salem's fate. Andover was beginning to develop a core of possessed children, much like Salem. Fortunately, one of the first people they accused was a savvy Bostonian who immediately retaliated by issuing a "writ to arrest these accusers in one thousand pound action of defamation." Faced by such an enormous counter-suit, the Andover children quickly dropped their charges.

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