Circumstantial Evidence

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Chapter 3
Circumstantial Evidence

Facing the dilemma of proving witchcraft without eyewitnesses and with scant direct physical evidence, fact-finders had to rely heavily on circumstantial evidence. Circumstantial evidence is not a direct proof of one of the elements that constitute a crime, but an inference of one fact from another – suspicious circumstances that bolster the impression of the suspect’s culpability. The archetypal example given in early modern English texts is that of a person seen fleeing a dead man’s house holding a bloody sword.1 Physical evidence (such as fingerprints and DNA evidence today or the devil’s mark in early modern England) is a sub-category of circumstantial evidence, as the suspect’s guilt is logically inferred from physical traces. Circumstantial evidence can be rebutted with evidence that points to another possible explanation, but in cases without eyewitnesses, suspicious circumstances are extremely powerful. According to Gilbert, the author of one of the first books on evidence law, published in 1756:

When the fact itself cannot be proved, that which comes nearest to the proof of the fact is, the proof of the circumstances that necessarily and usually attend such facts and are therefore called Presumptions not Proofs for they stand instead of the Proofs of the Fact until the contrary be proved.2

For Gilbert, who presumably described the legal reality of the eighteenth century, circumstantial evidence, or ‘presumption’ in his words, was not a proof, but rather an inferior substitute for actual proof, which stood only as long as nothing was proved to the contrary.

The now-established legal distinctions between presumption of fact and presumption of law,3 or rebuttable and irrebuttable presumptions, did not as yet exist in early modern English jurisprudence, and the terms ‘circumstances’, ‘presumptions’ and ‘conjectures’ had similar meaning. The sceptic and cynic Reginald Scot (who also attacked the circumstantial as an unsound basis for conviction) equated these terms with impossible and incredible, mocking them as nothing more than mere guesses:

See first whether the evidence be not frivolous, & whether the proofs brought against them be not incredible, consisting of ghesses, presumptions, & impossibilities contrarie to reason, scripture, and nature.4

Under Roman-Canon law, a conviction could be supported only on a full proof, which was either the testimony of two credible eyewitnesses or the confession of the accused. Half proofs, including circumstantial evidence, sufficiently accumulated, could at most allow a judge to order the torture of a suspect. In England the situation was different. Circumstantial evidence had always been allowed in criminal trials under common law. The reason is rooted in the historical development of the jury system. The jury originated as a self-informed panel, familiar with the crimes committed in the local community. The jurors’ knowledge included the suspect’s reputation, hearsay, rumours and other circumstances surrounding the crime. For this reason, the practice of allowing circumstantial evidence existed long before the intellectual doctrines that justified it.5 Through a very gradual process, influenced by demographic changes and by the Marian laws, which shifted the function of investigation to the magistrates, the jurors ceased to be self-informed. Circumstantial evidence, nevertheless, continued to be permitted.

The Roman-Canon doctrine, dating at least from the 1150s, which ranked the presumptions in three evidentiary levels, customarily named violent, probable and light, emerged centuries later in early modern England. The tripartite division relates to the levels of circumstantial evidence. The full proof is a separate, fourth, category. A thirteenth-century treatise on the laws of England, ascribed to Bracton, regarded some presumptions (like that of the bloody sword) to be stronger than others.6 Such instances of overwhelming presumption required no additional proof. This ranking, first popularized by Bracton, was later made explicit by Sir Edward Coke (who, like Bracton, did not discuss presumptions exclusively in the context of criminal law).7 Both Bracton and Coke, Shapiro noted, failed to mention their indebtedness to Continental sources on the subject of circumstantial evidence.8 Both gave the example of a person apprehended with a bloody sword over the body of a dead man as an instance of the strongest level of presumption.9

Shapiro believed that witchcraft may have contributed to the development of English criminal law, not because witch trials were common, but because the doctrinal writings on witchcraft contained detailed discussion of circumstantial evidence.10 The dilemma of the serious but hard-to-prove crime, especially in the context of the debate concerning witchcraft, contributed to sharper definitions and classifications of circumstantial evidence and the creation of an intellectual and epistemological foundation for its admission. The typical witchcraft crime had no eye witnesses, and as torture was not permitted in England, confessions could not be easily obtained. That left the fact-finders in many witchcraft cases with purely circumstantial evidence.

On the Continent, witchcraft was known as a crimen exceptum, a doctrine that allowed for the suspension or modification of normal evidentiary rules for conviction in exceptionally serious crimes where normal rules of evidence could not yield convictions. In Continental and Scottish witchcraft cases, this meant a possibility of conviction on circumstantial evidence alone or easier application of torture to extract a confession.11 Because circumstantial evidence was already permissible in England, application of the doctrine was theoretically unnecessary. Still, the English witchcraft literature is full of traces of the Continental language of indicia, signs and half proofs.12 This borrowing of Continental terms (and the implied possibility of combining different fragments of proof sufficient for conviction) was a resource in proving witchcraft. It facilitated obtaining convictions without having direct evidence; it assisted in creating intellectual justification for the use of circumstantial evidence; and it enabled the classification of circumstantial evidence according to varying degrees of probative strength. The Continental concepts of circumstantial evidence were imported into the English witchcraft debate mostly, but not exclusively, by theologians.

The English theologians maintained that circumstantial evidence could be used in witchcraft cases. Their treatment of circumstantial evidence was another variation of the struggle in proving this crime. The solution offered by William Perkins was to allow circumstantial evidence as a lower-status proof, insufficient for conviction but warranting further investigation. Perkins evaluated 18 signs for the discovery of witches. He adhered to the standards of the Roman-Canon law, which were non-applicable in routine criminal trials in England.13 It is hard to tell to what extent, if at all, Perkins was aware of the English witchcraft act or the actual procedure in English courtrooms. One should be cautious not to assume knowledge on the part of individuals only because they were members of the elites.14 The only two signs that Perkins deemed sufficient for conviction were the Continental full proofs – either the testimony of two good witnesses about the suspect’s pact with the devil or witchcraft practices, or the confession of the accused.15 Perkins even seemed to support the use of torture:

This course hath beene taken in some countries, and may no doubt lawfully and with good conscience be vsed, howbeit not in euery case, but onely vpon strong and great presumptions going before, and when the partie is obstinate.16

Indeed, Perkins mentioned that torture was a practice employed in some countries but made no mention that it was illegal in England. Perkins classified the signs according to their probative value. Testimony of two good witnesses or confession were sufficient for conviction. He deemed supernatural signs (such as the water test or burning the bewitched animal) insufficient. A third category of proofs, which were insufficient for conviction but warranted examination, included a longstanding reputation for witchcraft, suspect family members and friends, avoiding questioning and injury to another following cursing or quarrelling. Perkins called these instances of circumstantial evidence ‘presumptions’.

Perkins upheld the difference drawn between full proofs and lower-ranking proofs on the Continent. There, sufficient accumulation of half proofs could warrant torture, a practice that Perkins did not find objectionable. Perkins wrote in the Continental theological tradition. Although he wrote for an English audience, his comments were oblivious to English law.17 Yet, to his English readers the concept of different levels of proof might have implied two significant notions: first, that circumstantial evidence was classified as less valuable than direct evidence, and, second, that the categorization of evidence as insufficient, sufficient or presumption sufficient to warrant further examination established different standards of proof for the pre-trial investigation and for the conviction in the criminal trial.18 This type of classification was repeated in subsequent publications by clergymen.

Bernard also ranked three levels of evidence according to a sliding scale of probativeness. Of lower value were:

weake coniectures, which are commonly alledged by the weaker sort, arising out of their owne imaginations, or idle speeches of some others. All of this kinde the wise examiner may draw together, to make so of all, perhaps, a presumption; and in hearing the suspected parties answer to these, may collect matter of more weight.19

If enough conjectures were accumulated, they might establish at most a presumption, which could lead the examiner to investigate and find weightier proofs. If no such presumption could be formed, these conjectures might have resulted in a more informal ‘watchful eye’ over the suspect or ‘sharpe admonition’.20 The middle-level evidentiary category was also circumstantial, the ‘strong presumptions’, which could lead to the suspect’s arrest and to conviction in non-capital crimes.21 Among these presumptions Bernard listed instances of circumstantial evidence such as common report of reputation, injury following cursing and exaggerated interest in the victim’s health. It seems that Bernard regarded some presumptions to be more powerful than others. Whereas injury following cursing was a great presumption, being a relative of another witch was a presumption ‘vpon very weake grounds’.

Gaule also had three evidentiary levels – unwarrantable, probable but insufficient for conviction, and infallible. Gaule’s middle category included instances of circumstantial evidence such as reputation, suspected relatives of friends, some appearance of fact, habitual cursing, ‘lewd & naughty’ lifestyle and bodily marks.22 The common feature in the works of these three theologians was the three-level classification of evidence according to its value for proving the crime. The content of their categories did not entirely overlap, but all three had a middle degree characterized as presumption. This category contained various circumstances that were adequate to instigate an examination but did not establish strong enough evidence to send the suspect to the gallows.

The theologians were not the only ones advocating the use of circumstantial evidence in witchcraft cases. John Cotta, for example, the sceptic physician, supported detection of witches by reason, including presumptions and conjectures.23 Cotta, a firm believer in the power of reason as a way to study the world, supposed that witchcraft, like other phenomena, could be detected by logical inference. Each circumstance may not have been much in itself, but it could lead to other circumstances, and grouped together they made valuable proof.24 Cotta’s discussion, which dealt with the value of the accumulation of circumstances, was influenced by the Continental discourse. Unlike the legal scholars, however, Cotta did not hide the Continental influence. For Cotta, there was no contradiction between reliance on experiments and circumstantial evidence, and all human knowledge emerged from ‘the sole inseparable instruments’ of ‘right reason’ and ‘true experience’.25 In his view, it was possible to infer witchcraft from circumstantial evidence just as a doctor could diagnose a disease with the help of the circumstances.

Bradwell, another physician, agreed that with a sly adversary such as the devil, there was no choice but to rely on circumstantial evidence as proof:

The Devill is a spirit of darkness, he deales closely, and cuningly, you shall hardly finde any direct proofes in such a case, but by many presumptions and Circumstances, you may gather it.26

By the eighteenth century, the triple ladder of presumptions (violent, probable, light), much discussed in the context of witchcraft, became a general evidentiary convention. Nelson cited Coke, who had cited Bracton:

and many Times Juries together with other Matter are much induced by Presumptions, whereof there be three Sorrts, viz. Violent, Probable, Light and Temerary; Violenta Praesumptio is many Times Plana Probatio; as if one be run thro’ the Body with a Sword in a House, whereof he is instantly dieth, and a Man is seen to come out of that House with a bloody Sword, and no other Man was at that Time within the House: Praesumptio Probabilis moveth little, but Praesumptio Levis seu Temeraria moveth not at all.27

Gilbert also described the three levels of evidentiary standards, as well as the bloody sword, as an example of ‘violent’ presumption.28 Neither Nelson nor Coke (whose Institutes were first published in 1628, two decades after Perkins’ Damned Art) cited any of the theological witchcraft texts to establish the ranking of presumptions. Yet, as Shapiro claimed, the discussion of presumption in the context of witchcraft helped to develop English criminal law. Coke did not need to cite Perkins, as they both derived the concept of presumption from Canon law. The example of the dripping sword was a standard of medieval jurists.29 However, although Bracton, Coke and Nelson used it as an example of a strong presumption, their discussion related to civil matters as well.30 In comparison, the theological discussion was specific to the context of criminal law. It was much more detailed and drenched in the terminology of full and half proofs, which revealed its Continental origins. The discussion of presumptions in the context of witchcraft trials imported into the English criminal law a new conceptual basis for the acceptance and evaluation of circumstantial evidence.

Presumptions, or circumstantial inferences, were not unique to witchcraft cases and were used in trials for other crimes, as well as in non-criminal cases. Some presumptions (like that of the bloody sword) relied on common sense, and some on contemporary accepted notions of nature and life experience. One example of a highly regarded presumption in cases of murder (not necessarily by witchcraft) was the bleeding corpse. It was assumed with quite a high degree of probability that the corpse bled freshly in the presence of the murderer. Reginald Scot heard that affirmed by ‘credible report, and … many grave authors’.31 James VI & I considered it a supernatural sign sent by God to discover a murderer.32 A pamphlet of 1613 described how the dead body of the victim bled afresh when the suspect in a witchcraft case was brought to it.33 Michael Dalton relied on this case and included it in his list of evidential rules for the proof of witchcraft, ‘if the dead body bleed, vpon the Witches touching it’, and so did Bernard.34 Gaule regarded it as a probable sign, ‘yet not so certaine as to serve for the Witches Conviction’.35 Stearne was aware of that method (although by reading).36 A dissenting sceptical voice was raised by Ady, whose medical explanation was that all bodies bleed after several days if they have not been buried and that it was ‘a common and a natural thing’, having nothing to do with the presence of the murderer.37

As direct evidence could hardly be found in witchcraft cases, they therefore abounded in presumptions. Some believed witchcraft could not be proved in any other way. Bragge, a minister who wrote pamphlets to convince readers that Jane Wenham was guilty of witchcraft, held that witchcraft could be proved only through:

a Multitude of concurrent Circumstances, all tending to increase and confirm our Suspicions; … all the World knows that the Evidence must be in a great Measure Circumstantial only; and that we should bring positive Witnesses to a Contract with the Devil, is as unreasonable for others to expect, as it is impossible for us to perform.38

Pamphlets and tracts concerning witchcraft time and again contained discussions about signs and presumptions, often grading their probative value. Thus the pamphlet literature allows examining the application of circumstantial inferences in action. While some of the inferences were case-specific, other inferences (such as the bloody sword) became more generalized and institutionalized.39 A classic example of an established witchcraft presumption is that of an injury following a falling-out or cursing. The work of Thomas and Macfarlane is known for portraying a refusal to give charity as a typical background for witchcraft accusations. The charity-being-denied scenario was of an old woman coming to beg for food and being refused. Being sent away, she cursed or mumbled, and a subsequent misfortune befalling those who denied her charity was attributed to her witchcraft. However, although many cases matched this pattern, there were other instances of conflict and unpleasantness, and therefore a broader framework of offensive interactions was preferable.40 For similar reasons, although some of the early modern authors considered a falling-out and cursing to be separate presumptions, they can be reviewed jointly. In both instances, the inference traced the misfortune that befell the victim to a previous unpleasant interaction with the suspect. The temporal sequence (misfortune following a conflict) was interpreted as evidence that the suspect bewitched the victim. In 1584 Reginald Scot mockingly described how this circumstantial inference was drawn:

See also what persons complaine upon them, whether they be not of the basest, the unwisest, & most faithles kind of people. Also may it please you to waie what accusations and crimes they laie to their charge, namelie: She was at my house of late she would have had a pot of milke, she departed in a chafe because she had it not, she railed, she curssed, she mumbled and whispered, and finallie she said she would be even with me: and soone after my child, my cow, my sow, or my pullet died, or was strangelie taken.41

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