by Jenny Gibbons
Stage #3: Gathering the Preliminary Evidence
Once the court decided that the accusation sounded reasonable, they began gathering evidence. There were supposed to be two stages to the investigation: 1) gathering preliminary evidence before the suspect was arrested, and 2) questioning and examing the suspect herself. (In reality, the two got merged together -- courts often proceeded directly to the arrest once an accusation had been made.
Early modern courts had an exceptionally rigorous standard of proof. In order to convict a criminal the court had to produce two eye-witnesses who had actually seen the crime committed, or the accused had to confess. No other type of evidence was sufficient for proof (England was an exception to this rule). Only adult men were acceptable witnesses, and they could not have any grudge against the accused Witch. Even the *accuser's* testimony didn't count! That's right, in early court cases the plaintiff's testimony wasn't considered reliable.
Immediately, courts encountered a crisis: no one ever saw spells being cast. Witches supposedly did their spellwork at sabbats. So it was almost impossible to get eye-witnesses, let alone two adult male eyewitnesses who had no grudge against the accused! Courts faced a daunting problem. They were convinced that a Satanic conspiracy of Witches threatened Christendom. Yet they discovered that under their legal system, it was almost impossible to convict Witches.
The courts devised many different ways to deal with this problem. One was to focus on the other type of "proof": confession. This is why there was such enormous pressure put on Witches to confess: it was the only way a court could get the type of evidence it needed. Since Witches wouldn't usually confess, courts adopted ever-increasing amounts of torture, as we'll see in a few more stages.
Some courts relaxed their requirements for a "reliable" witness. Plaintiff's and enemies' testimony was admitted. Women and minors suddenly became acceptable. Thus the children of Witches were frequently coerced into testifying against their parents. In England, children as young as six were mercilessly cross-examined by the judges. Sweden had an unusual solution: they treated children as fractions of adults. Thus you needed to gather more children than adults, but a handful of kids would suffice.
Even the testimony of animals was occasionally admitted! One of the more bizarre ways of creating witnesses was to allow familiars to testify. Obviously the animal itself didn't show up in court and give a deposition. But I could testify that my demonic cat claimed that Alice Morrow was a Witch, and the courts (at least in England) would often treat this as evidence against Goodwife Morrow.
One of the more chilling solutions was to admit "spectral evidence." Normally, a person has to physically see an event before we consider them a witness. I have to watch Alice Morrow casting a spell before I can say I saw her do it. However, in the Burning Times, many courts allowed a witness to report their dreams, visions, or hallucinations. I could now say that I'd seen Goodwife Morrow cast a spell on me, even if I only *dreamed* that she'd done so.
Worse, my testimony was considered proof of what Alice had really done. The theory was that the dreamer/hallucinator was seeing the "spectre" or "form" of the Witch. So if I dreamed that Alice bewitched me, she really had.
Even in the Burning Times, spectral evidence was controversial. Many religious leaders opposed it. Satan was the father of deception, they said. What was to stop him from taking the shape of an innocent person? God, replied other Christians. Again, many believed that the charge of Witchcraft was so vile that God would not allow an innocent person to be accused of it. So dreams and visions were true and reliable evidence.
When it was allowed (and it often was), spectral evidence led to some of the most horrifying trials of the Burning Times. In Spain, a wave of nightmares amongst children led to over a thousand accusations in the Basque Dream Epidemic. We're all familiar with the Salem Trials, where the visions of hysterical children led to dozens of deaths. And the Salem children weren't unique. Throughout Europe, "possessed" people like them were responsible for hundreds of trials, and thousands of deaths.
The final solution to the evidence problem was dropping the rules of evidence entirely. Some courts defined Witchcraft as an exceptional crime, one where you simply "had" to accept evidence that you'd never touch in any other type of case. Folklore and theology joined hands to create a series of "tests" for Witchcraft. We'll look at some of these (swimming Witches, the Witches' mark) when we get to the "examination of the accused" stage. But there were a couple of tests that were occasionally applied in the preliminary stage.
In Switzerland judges forced Witches to give food to their "victims"; if the bewitched recovered soon thereafter it was "proof" of the Witch's guilt. People believed that possessed children would go into convulsions when they were in the presence of the Witch who'd enspelled them. And so sometimes suspected Witches were forced to touch or approach children who were behaving oddly.
Besides these "legal" investigations, there were also a number of traditional folk methods for discovering a Witch. Courts generally didn't use them, but regular people did. And while courts rarely accepted these tests as solid evidence, many did decide that they were partial evidence.
Most of these tests involved rites or counter-spells which forced the Witch to show up at your house. Some were innocuous. The English said that if you boiled a Witch's urine, she would come to your door-step. The "trial of the tile" was similar. You stole a tile from your neighbor's house and placed it upon your fire. Again, if your neighbor was a Witch, she would be forced to visit and give herself away.
Other versions were monstrous, though. Many people believed that if you tortured a Witch's familiar, she would have to come to its rescue. So if my neighbor suspects I'm a Witch, he steals my cat one evening and starts to slowly roast her alive. If I try to save her, I've "proven" I'm a Witch. Sometimes I wonder how many Witches sat in their houses, listening to a beloved pet die in agony, knowing only too well that any action would confirm the village's suspicions. That if they tried to save their animal, they would simply share her fate.
Like Ursula Kemp did. When she refused to confess to Witchcraft, her judge, Brian Darcy, called her cats "familiar spirits" and threatened to steal and torture them. "Nay," Ursula snarled, "that shall ye not, for I will carry them with me." After she blurted this out she realized that Darcy thought he'd tricked her into admitting that the cats were familiars. Ursula tried to clarify her statement. But it was too late -- and she was hanged for her mistake.