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1.: Review 'Marks of an Absolute Witch' From: Caroline Tully

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1.: Review 'Marks of an Absolute Witch'

Posted by: "Caroline Tully" heliade@bigpond.com willowitch2001

Mon Dec 5, 2011 1:07 pm (PST)

Interesting title...

Orna Alyagon Darr. Marks of an Absolute Witch. Farnham Ashgate,
2011. viii + 326 pp. $124.95 (cloth), ISBN 978-0-7546-6987-6.

Reviewed by Peter Morton (Mount Royal University)
Published on H-Albion (November, 2011)
Commissioned by Jeffrey R. Wigelsworth

Witch Trials and Evidentiary Practice in English Law

This study by Orna Alyagon Darr, lecturer at Carmel Academic Center,
Israel, is a fascinating book on the selection and interpretation of
evidence in English witchcraft trials. Darr offers a novel
perspective on the trials. Since the work of Keith Thomas and others
in the 1970s, the historical literature has been flooded with
monographs and articles examining the origins, conduct, and
intellectual underpinnings of the European witch trials between 1450
and 1750. Yet in her introduction Darr does not place her work in the
immediate context of that literature. Rather she offers her study in
the first instance as a contribution to the history of legal theory
and practice. There are two facts on which Darr bases this
contribution. First, the period of the witch trials coincided with
major transformations in English law during which many of the modern
rules of common law were established. Second, prosecution for
witchcraft presented difficult, and therefore formative, challenges
to the practice of criminal law. The crime was seen as a serious
criminal offence, combining harm to neighbors and community with
diabolical associations, while its secretive and supernatural nature
made it difficult to present compelling evidence for its prosecution.
Witchcraft prosecution is, therefore, an ideal subject for the study
of serious yet hard-to-prove cases. The latter factor was especially
important in England because English law forbade the use of torture
to extract confessions. Darr's book studies English witchcraft trials
as reported in pamphlet literature, together with learned treatises
and legal manuals, with an eye to developments in the ways in which
evidence was collected and interpreted to make prosecution for the
offence possible.

The literature against which Darr presents her study is the work of
legal historians like John Henry Wigmore, who sees the development of
evidentiary practice as motivated by the pursuit of truth, and Alex
Stein, who presents it as accommodating practical social ends.
Against such views, Darr's principle thesis is that the rules of
common law are "social constructions," by which she means that the
choice and interpretation of evidence and proof were not aimed
entirely at truth but were heavily influenced by social interests of
class and profession and hence did not "necessarily possess a
universal or 'real' objective value, and they were not guided by
reason alone" (pp. 261-262). To this end, Darr devotes a good deal of
her study to the sometimes accommodating and sometimes conflicting
attitudes and interests of three professional groups closely involved
in the theory and practice of witchcraft trials: clergy and
theologians; medical professionals, especially physicians; and
lawyers, judges, and legal writers. According to Darr, the manner in
which the principles of common law developed was to a large extent
determined by the ways in which these groups advanced their social
and professional ends.

The first three chapters provide a review of the procedures in
English common law of the period, and of the practices the English
courts followed regarding the assessment of circumstantial evidence.
The nature of English criminal trials is important to Darr's study
because of the effects of the assize courts. Pretrial indictment was
directed by a local justice of the peace and determined by a grand
jury, allowing influence on the proceedings by local interests. At
the same time, pretrial records had no evidentiary status in the
trials, which were directed by central, itinerant, assize court
judges with a verdict pronounced by a petty jury. Until the
mid-eighteenth century, petty juries were under considerable
constraints from the assize judges. The emergence of rules for the
assessment of evidence occurred as the courts adjusted concepts of
proof to function in the assize court system. Another factor in
English common law that played an important role derived from the
absence of torture. This fact meant that, in difficult-to-prove cases
like witchcraft, English courts had to rely on circumstantial
evidence. Since direct evidence was impossible, indications of
witchcraft had to depend on the use of presumptions to link the
evidence to the crime. An example of this reasoning was the common
inference connecting an unpleasant encounter with a subsequent
injury. While continental courts assigned witchcraft the status of a
_crimen exceptum_ to avoid the necessity of full proof, English
common law had always allowed circumstantial evidence as a
consequence of the jury system. By the eighteenth century, English
jurists had established a system of three levels of presumption
(violent, probable, and light) that was widely adopted.

The second major portion of the book, chapters 4 through 9, surveys
the range of evidence that was commonly offered in witchcraft trials.
Darr's main assertion across these chapters is that the evidence
itself, whether in the form of physical traces of witchcraft and
diabolical activity, or in supernatural tests such as swimming or
scratching the suspect, was not directly incriminating but required a
number of interpretive assumptions that could be challenged in court
and in the literature. Evidence of witchcraft rituals in the form of
physical traces--bowls, pins, feathers, and clay figures--in the
absence of a compelling story of their origin and use, were simply
household objects with no criminal significance. A particularly
interesting and common piece of evidence was the witches' mark, which
ingeniously combined English folk belief in suckling familiars with
learned belief in the mark as a sign of the devil's pact. In this
case, Darr records unexpected alignments and disagreements between
and among divines, legal scholars, and physicians on the evidentiary
value of the witches' mark. Similarly, interpretations of the results
of supernatural tests, such as swimming the suspects and scratching
(drawing blood from the suspect to see whether the victim experienced
relief), were open to challenges from a number of angles, most
especially the possibility of natural causes. Some divines viewed
such practices as superstitions, akin even to witchcraft itself, and
physicians frequently offered alternative natural explanations of the
outcomes. Yet there was considerable pressure, especially at the
local level, to accept these tests as definite signs of diabolical
witchcraft.

In chapter 9, "Supernatural Evidentiary Techniques as Experiments,"
Darr draws on the material of the previous two chapters to examine
what she sees as important changes in criminal practice emerging from
the witchcraft trials. It is here that this reviewer finds the most
interesting and controversial thesis of the book. The techniques Darr
refers to are those that involve subjecting the accused to tests,
especially swimming and scratching but others as well, that depend
for their efficacy on supernatural causes. At first glance these
tests appear as throwbacks to medieval ordeals, which relied on
divine intervention as proof of guilt or innocence. Yet Darr argues
convincingly that this was not the case. Legal practice had moved
from what Darr calls an "epistemology of belief" to "an epistemology
of knowledge." By this she means that determination of a verdict
shifted from divine signs not amenable to human reason to providing
rational proof. Given this shift, supernatural tests were reformed in
a manner similar to scientific experiments. As devices intended to
convince a jury, the tests were subjected to three important
constraints: standardization, by which the same results could be
expected from the same circumstances; repetition, where the tests
were repeated to avoid the possibility of unexpected circumstances;
and the use of experimental controls, particularly the application of
the same tests to people innocent of suspicion. As Darr argues, these
factors are common features of modern scientific experimentation.
Moreover, following Barbara Shapiro, Darr points out that these
factors originated in law _before_ they came into common use in the
sciences.

While the general assertions in Darr's comparison of trial procedures
and experimentation are revealing and interesting, there are
important questions in the specifics. Given acceptance of the
validity of a test, an "experiment" could be used to determine the
guilt of the suspect. In places Darr also indicates that the
experiments could be used to determine the validity of the test. But
it would seem to be impossible to do both together, which Darr
suggests in one place (p. 186), since a negative outcome would not
reveal which hypothesis failed. Yet one can reply to this point that
all scientific hypothesis testing faces the same problem.[1] Another
question concerns the application of Darr's principle thesis--the
social construction of evidentiary rules--to the experimental nature
of supernatural tests. She notes that experiments were often modified
in order to provide clearer proof. Here she points out that judges
were sometimes responsive to local intervention and even to
objections from the trial audience. This supports her claim that what
she calls "experimental technique" was a search for rational forms of
proof, and it fits with her assertion that the primary change in
English legal practice in the early modern period was a shift from
divine intervention to human reason. Yet she also notes that
frequently the modifications were directed toward establishing a
guilty verdict. Rather than indicating open-mindedness toward the
outcomes of experiments, this suggests that the tests were not always
experiments in the sense of trials used to objectively determine the
facts, but were often intended to provide proof of a predetermined
conclusion. Again, it can be replied that this situation is not
peculiar to witch trials and that "facts" are themselves "socially
constructed" artifices, although Darr herself seems not to take this
option (p. 264).

Chapters 11 and 12 review the rules that developed concerning the
reliability of verbal evidence, from witnesses and from suspects'
confessions. With regard to the former, Darr distinguishes between
competency rules, which determine whether a witness can or cannot
give reliable testimony, and credibility rules, which assign degrees
of reliability both to the witness and to the content of the
testimony. Early trials relied on competency rules, primarily to
eliminate liars; for this end, oath taking was accepted as sufficient
grounds. In the late sixteenth century, doubts about the reliability
of oath taking emerged, and by the early seventeenth century a system
of rules emerged to measure credibility. Over time, these rules came
to include assessments of the coherence of testimony, of the motives
and interests of the witnesses, and of their impartiality. Regarding
confessions, many claimed that, whether explicit or implicit,
confessions offered the best possible evidence. Against this,
Reginald Scott argued that confessions to impossible, supernatural
acts or from the mentally ill were of no value. Others accepted the
reliability of confessions in principle yet insisted on caution,
arguing for example that confessions be "free and voluntary" and be
supported by independently corroborating evidence. Here Darr argues
that professional affiliations were significant: divines and jurists
generally supported confessions as strong evidence, although for
different professional reasons, while physicians were skeptical that
any confession could be considered free and voluntary.

Overall, this book should be essential reading for anyone interested
in the criminal aspects of the witchcraft trials and in the history
of common law. This reviewer finds the intersections between these
two subjects important and rarely examined in as much detail. Darr's
use of primary sources is detailed and comprehensive, and she
presents bold and important theses. The larger questions the book
raises about the role of "social construction" in legal theory, and
the relations between proof and experimentation in law and science,
will provide valuable material for ongoing discussions.

Note

[1]. This point is most often attributed to Pierre Duhem and Willard
Van Orman Quine. See Willard Van Orman Quine, "Two Dogmas of
Empiricism," in _From a Logical Point of View_ (Cambridge: Harvard
University Press, 1953), 20; and Roger Ariew, "The Duhem Thesis,"
_British Journal for the Philosophy of Science_ 35 (1984): 320.

Citation: Peter Morton. Review of Darr, Orna Alyagon, _Marks of an
Absolute Witch_. H-Albion, H-Net Reviews. November, 2011.
URL: https://www.h-net.org/reviews/showrev.php?id=33996

This work is licensed under a Creative Commons
Attribution-Noncommercial-No Derivative Works 3.0 United States
License.

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