Marks of an Absolute Witch

Evidentiary Dilemmas in Early Modern England

Orna Alyagon Darr

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317100386
• Edition: 1
• Topic: Theology & Religion
• Subtopic: Religion

This work explores the social foundation of evidence law in a specific historical social and cultural context - the debate concerning the proof of the crime of witchcraft in early modern England. In this period the question of how to prove the crime of witchcraft was the centre of a public debate and even those who strongly believed in the reality of witchcraft had considerable concerns regarding its proof. In a typical witchcraft crime there were no eyewitnesses, and since torture was not a standard measure in English criminal trials, confessions could not be easily obtained. The scarcity of evidence left the fact-finders with a pressing dilemma. On the one hand, using the standard evidentiary methods might have jeopardized any chance of prosecuting and convicting extremely dangerous criminals. On the other hand, lowering the evidentiary standards might have led to the conviction of innocent people. Based on the analysis of 157 primary sources, the book presents a picture of a diverse society whose members tried to influence evidentiary techniques to achieve their distinct goals and to bolster their social standing. In so doing this book further uncovers the interplay between the struggle with the evidentiary dilemma and social characteristics (such as class, position along the centre/periphery axis and the professional affiliation) of the participants in the debate. In particular, attention is focused on the professions of law, clergy and medicine. This book finds clear affinity between the professional affiliation and the evidentiary positions of the participants in the debate, demonstrating how the diverse social players and groups employed evidentiary strategies as a resource, to mobilize their interests. The witchcraft debate took place within the formative era of modern evidence law, and the book highlights the mutual influences between the witch trials and major legal developments.

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Chapter 1
Pre-trial Procedure

Legal Background

The crime of witchcraft was created by statute in the middle of the sixteenth century, but proving this crime, which was committed through the use of indiscernible devilish powers, posed a grave problem. The application of the anti-witchcraft legislation was intertwined with, and shaped by, significant and simultaneous developments in criminal procedure and evidence law. Shapiro even suggested that the development of standards of proof eventually brought about the disappearance of the crime of witchcraft.1 The prosecution of witches decreased in the last decades of the seventeenth century, while the rules of evidence became increasingly articulated and widespread around that time.

The procedure for witchcraft cases was the same as the general criminal procedure, with the exception of a few witchcraft-specific presumptions. The use of illegal tests (such as swimming or pricking) by villagers was also typical of witchcraft cases, but these were not part of the official proof system. Yet, much of the procedural and evidentiary transformation of English criminal law developed in the context of the witch trials. Having no divine guidance through the ordeals, and deprived of the confession-inducing mechanism of torture, the English had to seek a way to discover witches. Discovering true witches necessitated consideration and moulding of procedural and evidentiary tools: What was a good proof for witchcraft? What level of certainty was required for a conviction? How could innocent people be protected from false accusations?

The 200 years from the mid-sixteenth to the mid-eighteenth century spanned the period between medieval criminal law, which had not yet fully recovered from the abandonment of the ordeals, and a legal system of human adjudication. It was an era of transformation from criminal prosecution at the will of individuals to the establishment of a state-run prosecution apparatus. The law of evidence, non-existent at the beginning of the period, crystallized toward the end of that era into a set of rules whose basic principles are still applicable today. The standard of proof beyond reasonable doubt was emerging. The defendant’s considerable procedural inferiority was ameliorated by the birth of the rights to be represented by counsel, to get a copy of the indictment and investigatory materials, to testify under oath and to call defence witnesses. Lawyer-free altercation between the accused and the accuser was replaced by the adversary criminal trial around the 1730s.2 Beginning with the last decades of the seventeenth century, the newly introduced involvement of lawyers and their various objections to different kinds of evidence, and the manner of their arguments and examinations in turn, contributed to the development of standards of procedure and evidence rules.3 The most influential role of defence attorneys was the cross-examination (commonly dubbed ‘art’ by lawyers) of the prosecution witnesses, which aimed to discover their biases and perceptual deficiencies.4 The defence infused the notion that not all the evidence submitted by the prosecution must be given weight. Consequently, in the eighteenth century, mechanisms of exclusionary rules intended to shield the defendant from prejudicial or immaterial evidence began to take form.5 Jurors, grand or petty, no longer served in a testimonial role, and they no longer needed to be acquainted with the accused or reside in close vicinity to the crime, but rather received the evidence from the prosecution.6

Passing criminal adjudication into human hands is the best explanation for these transformations. The development, however, was slow and gradual. Tracing the turning points in the process by which existing legal notions became articulated through formulae of exclusionary rules is illusive. On the Continent, the Roman-Canon law developed an intricate and elaborate system of proof standards in which professional judges resembled mathematicians setting variables into a formula. In England, the already existing institution of the inquest, or jury, expanded to fill the vacuum left by forsaking the ordeals, and fact-finding was shifted to lay judges and the jury.7 God is omniscient, but human adjudication required convincing proof, a need that generated the development of standards of evidence. Human adjudication depends on information; therefore, crimes need to be investigated. The Marian laws, enacted in 1554 and 1555, created a unified pre-trial procedure of investigation for all serious crimes, including witchcraft. A state-run apparatus of investigation and prosecution also contributed to the creation of standardized methods of investigation and proof.8 The established system of travelling assize judges, who tried practically all the serious crimes, reinforced unified standards of procedure and proof.

At three stages of the criminal procedure it was necessary to determine the guilt of the witchcraft suspect, and each stage required a consideration of proof. Different participants controlled the determination at each stage. The justice of the peace ( JP), on the basis of accusations and testimonies brought before him, was the first to determine whether the evidence was sufficient for the case to proceed. If he decided affirmatively, he committed the suspect to jail or released her on bail. In such cases, the JP conducted a pre-trial investigation that included an examination of the suspect. At the second stage, the grand jurors decided whether the evidence supported the bill of indictment that was normally drafted by the court clerks and included the formal charges against the accused. If they found the bill to be ‘true’ (a billa vera), it became an indictment, and the case proceeded to trial. The petty jurors decided the outcome of the last stage. They determined whether the defendant was to be convicted or acquitted on the basis of the evidence presented at trial. The anti-witchcraft laws listed forbidden acts but did not specify how to prove them. The practices of evidence and criminal procedure filled the statutes with content. Acquaintance with the procedural stages is essential for understanding how the contemporaries struggled with the problem of proof.

Steps of the Pre-trial Stage

The ‘Bringing’: An Initial Arrest by a Constable or Neighbours

The initiation of a criminal proceeding against a defendant required legal tools to secure the physical presence of the suspect for investigation and trial. The Marian statutes set the procedure for bail or committal by the JP, who was usually not a lawyer,9 and laid the ground for a pre-trial examination. Langbein noted how the phrasing of those laws presupposed that the suspect was ‘brought’ before the JP by ‘them’10 or ‘those’11 ‘that bring him’.12 The bringers might be the constable, neighbours who assisted him in case the suspect opposed the arrest, complainants or witnesses. The constables,13 as Sir Thomas Smith lamented, ‘were at the first in greater reputation than they bee nowe’.14 In the past, Smith added, the constables had enjoyed a prestige similar to JPs. However, that had changed by his time, ‘for so much as every little Village hath commonly two Constables, and many times artificers, labourers, and men of small abilitie be chosen unto that office, who haue no great experience, nor knowledge, nor authoritie’. The judicial proceeding, therefore, was launched after the suspected witch was brought before the JP.

In the early days of the common law, the authority to arrest was inherent not only in constables, but in private persons as well. Judge Hale opined that a private person must commit an arrest in three situations: (1) on witnessing another commit a felony, (2) on ‘hue-and-cry’15 and (3) in aid of an officer acting under a warrant.16 A private person, according to Hale, could arrest another on ‘probable cause’ on suspicion of a felony or accompany a public officer, even if the latter had no warrant.17 A constable could also arrest a person if he had reasonable grounds to suspect that the person had committed a felony, no matter whether such felony had been committed. Smith affirmed that ‘everie English man is a Sargiant to take the theefe’.18

By the mid-sixteenth century, the established concept of the breach of peace buttressed the authority of law enforcement officials to arrest. Lambarde, a lawyer trained at Lincoln’s Inn and the author of significant legal treatises,19 explained that whenever a person was suspect in a breach of peace, the officers could ‘carry’ them before the JP and be assisted by neighbours to compel the suspect to come.20 Subsequentl...