Perhaps of interest.

Best,
Roberto


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Subject: H-Net Review Publication:  Kounine on Darr, 'Marks of an
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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 Laura Kounine (University of Cambridge)
Published on H-Albion (January, 2013)
Commissioned by Siobhan M. Talbott

Evidentiary Dilemmas in Early Modern English Witch Trials

Using the crime of witchcraft as her entry point into an analysis of
the development of English criminal law, Orna Alyagon Darr,
previously a public defender and now lecturer at Carmel Academic
Center in Israel, points to the evidential dilemmas inherent in this
"serious but hard-to-prove crime" as pivotal in generating debate on
marks of evidence (p. 4). This study thus focuses not on the history
of witchcraft persecutions, or even witchcraft beliefs more
generally, but rather on the discourse on evidence in witchcraft
cases in England. In contrast to the prevailing legal theory which
regards the rules of evidence as a rational and objective
truth-finding tool, Darr suggests that "evidentiary techniques are
socially constructed through a symbolic struggle between various
social and cultural groups" and that "common law rules of evidence do
not necessarily possess real objective value and do not develop
exclusively by virtue of their inner judicial logic" (p. 6). In
particular, Darr focuses on how the social and cultural position of
participants, that is their social class, central or peripheral
locale, and professional affiliation, influenced their evidentiary
dispositions. Based on an analysis of 157 pamphlets, tracts, and
legal manuals written and published between 1561 and 1756--trial
manuscripts are, unfortunately, not examined--Darr's volume is
structured around four main sections: pretrial and trial criminal
procedure, including nonofficial and illegal procedures;
circumstantial evidence; supernatural signs; and the evaluation of
truthfulness of narratives.

Following on from Barbara Shapiro's suggestion 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,"[1] Darr contends that "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" (p.
81). William Perkins, for instance, upheld the difference drawn
between full proofs and lower-ranking proofs on the Continent, types
of classification that were to be repeated in subsequent publications
by clergymen such as Richard Bernard and John Gaule. All three
writers had in common a three-level classification of evidence
according to its value for proving the crime. These are surely
interesting observations, but much of the groundwork for this is laid
out in Malcolm Gaskill's 2008 article on witchcraft and evidence in
early modern England. Moreover, whereas Gaskill firmly sets his
discussion in the historical developments of the Civil War, and
indeed suggests that after 1660, the demonstration of witchcraft at
law "became an increasingly taxing exercise in persuasion and proof,"
Darr's study gives this monumental episode scant mention.[2] Thus,
one of the weaknesses of Darr's study is its lack of temporal
contextualization and attention to change over time.

In chapters 4-9, Darr turns her attention to the kinds of evidence
used in witchcraft cases, namely ritual acts and artifacts of
witchcraft, the devil's mark, imps, the swimming test, scratching,
and finally, supernatural evidentiary techniques as experiments. Of
these, the devil's mark receives the lengthiest treatment. Darr
suggests that the professional affiliations of the participants in
this debate shaped their dispositions on this mark of evidence.
Unsurprisingly, professional witch hunters, witch searchers, or witch
prickers based their professional identity on the solid probative
value of the devil's mark. Bodily searches for the devil's mark could
also be carried out by a "jury of matrons," women who were not
necessarily midwives but could include any respected and mature
women.

Darr uses this juncture to briefly discuss the role of women in witch
trials. Apart from their "distinctively powerful" role in the jury of
matrons, women were excluded from positions of authority in most
criminal trials. Their central role, as we would expect, was as the
accused witch. She concludes that ultimately, "the search for the
devil's mark reflected and reasserted the assymetrical power
structure, where the men orchestrated and ordered the searches and
the women complied with their orders, either in the vulnerable
position of suspects or in the more empowered role of female
searchers" (p. 138). This is a tempting problematization of the
gendering of witchcraft, but it would have been helpful for Darr to
explore the role of men in this schema further: What role then did
men have as accused witches, "victims" of witchcraft and accusers?
Moreover, how did marks of evidence interact with the gender of the
witch and other categories such as age, reputation, and social and
economic status?

Given the lack of unequivocal direct physical evidence to prove
witchcraft, contemporaries had to rely on evidential methods. Darr
identifies these as supernatural signs, circumstantial evidence, and
testimonies. In some instances, Darr is in danger of overemphasizing
the exceptionality of the crime of witchcraft in opening up questions
of proof. For example, Darr suggests that "in cases of witchcraft,
unlike other crimes, supernatural signs of guilt were still widely
sought," and gives the example of the inability of the witch to shed
tears (p. 158). The inability to shed tears, however, was also read
as a sign of guilt in other criminal cases--on the Continent at
least--such as infanticide. Nonetheless, supernatural signs certainly
gained ascendancy in English witch trials. Despite the fact that
ordeals had become illegal in England in 1215, the seventeenth
century witnessed a resurgence of the swimming test only in
witchcraft cases. Darr suggests that this was due to the molding of
the supernatural ordeal-type rationale into a template of an
empiricist experiment. In one swimming case overseen by John Stearne,
for example, an innocent man was ducked in the water prior to the
accused witch as a control; this demonstrated the construction of the
test as an experiment, rather than an ordeal calling for a sign from
God (p. 167).

Indeed, this empirical underpinning can also be seen in another form
of popular, yet illegal, practice, which involved scratching the
suspect in order that the bewitched victim could enjoy temporary
relief of symptoms; it also offered confirmation of the suspect's
guilt if the victim felt relief. Crucially, and in a highly
convincing section, Darr demonstrates how swimming and scratching
differed from the ordeals: where the ordeals were a means of ultimate
judgment, early modern swimming and scratching were measures of
pretrial investigation. Moreover, the underlying epistemology was
different: "one prevalent feature of the ordeal, a complete trust in
divine guidance, was lacking in the early modern procedures. Because
the result was no longer blindly trusted, ordeal-type procedures had
to be reconstructed as experiments in accordance with the rising
empiricist worldview" (p. 183). In the extraordinary case of the
so-called Witches of Warboys, for instance, the Samuels family had
been suspected by the gentry family the Throckmortons of bewitching
their five daughters. The experiments to prove Agnes Samuel's guilt
included elements of repetition, a control group, modification
directed to eliminate alternative explanations, verification of the
result, and the open-minded cooperation of the judge (p. 191).

The next section of the book deals with the evaluation of the
truthfulness of narratives (chapters 10-12). Early modern England saw
significant developments of evidentiary rules pertaining to
witnesses, in which the focus shifted from competency to credibility,
two legal measures aimed at obtaining truthful testimony. Beginning
in the seventeenth century, "the texts no longer implied that the
testimony should be accepted solely by virtue of the oath, and the
manner and content of testimony began to be scrutinized" (p. 229). It
is here that Darr is most convincing and precise in her elucidation
of chronologies of change.

In her study, then, Darr aims to offer a "strikingly different
picture" to those studies which suggest that the rules of evidence
apparatus is inherently objective or rational. An underlying thesis
of Darr's work is that for the trajectory of evidentiary law to be
understood, the sociocultural context must be explored. Darr is most
convincing in her argument of the epistemological reconstruction of
supernatural proof techniques, which, rather than being viewed as a
divine sign, "became techniques in the rational and methodological
quest for justice" (p. 264). Social class and professional context
further determined the choice and interpretation of legal proof
techniques. Darr suggests that physicians, generally, were most
successful in positioning themselves as experts in witch trials and,
moreover, in using the difficulty of proving witchcraft as a resource
to bolster their professional status, while clergymen, in contrast,
"ended up losing much of their indispensability in witch trials" (p.
270). While this contention may be true, given the debates _within
_various professional and social groups, it is somewhat confusing
that Darr homogenizes these affiliations in order to come to such
broad conclusions.

This is an interesting and often elucidating book, although it is not
without its limitations. Nonetheless, this study successfully ties
together both the intellectual and legal foundations for proving
witchcraft, with the social and cultural dynamics that helped to
shape them. This book should thus be valuable reading for anyone
interested in the criminal procedure of witchcraft in England and the
larger questions prompted by the study of this crime.

Notes

[1]. Barbara J. Shapiro, _Beyond Reasonable Doubt and Probable Cause:
Historical Pespectives on the Anglo-American Law of Evidence_
(Berkeley: University of California Press, 1991).

[2]. See Malcolm Gaskill, "Witchcraft and Evidence in Early Modern
England," _Past and Present_, no. 198 (February 2008): 33-70; 37.

Citation: Laura Kounine. Review of Darr, Orna Alyagon, _Marks of an
Absolute Witch_. H-Albion, H-Net Reviews. January, 2013.
URL: https://www.h-net.org/reviews/showrev.php?id=36542

This work is licensed under a Creative Commons
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