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May 6, 2016 - March 4, 2021
As Aquinas’s Summa dominated theology, so law was dominated for centuries by the great collections and commentaries of the thirteenth and early fourteenth centuries.
as “A stronger proof is required from one who wishes to prove what is not likely (verisimile).”
Even if one avoids talking about proof by leaving the jury as a black box evaluator of guilt, there is still the problem of explaining the level of probability of guilt needed for pretrial actions like arrest and indictment.
There was much quoting of a maxim of Innocent III, “It is in the public interest that crimes not go unpunished,” to justify whittling away of the rights of defendants.
Bartolus recognizes that reaching half-proof is a matter of balancing positive and negative evidence; if both are present, the positive must overbalance the negative.95 The Postglossators are very clear that there must be a finer grading of evidence between the extremes of no proof and full proof, instead of calling all such things half-proof.
What category, then, should be set up for such pieces of evidence that lie between worthless suspicion and half-proof? A word of rather obscure meaning from Roman law, indicium (indication) names this category; as well as the items of evidence just mentioned, it includes such things as threats made before a crime and the extrajudicial confession of the accused.
The most developed form of the theory is found in the late fourteenth-century commentaries of Baldus de Ubaldis. He is the most philosophical of the medieval legal writers; his knowledge of Aristotle was considerable, and he sees law on the model of an Aristotelian science, with theorems derivable from the abstract notion of justice.
Since his work is at once the most theoretically developed—indeed, unsurpassed—and entirely unknown in modern discussions of probability, it is worth quoting at some length. The fact that it is still easy to understand is a tribute to the close connection between medieval law and modern everyday concepts of reasoning.
Presumption iuris et de iure is thus defined: It is a conjecture without doubt, established by law; as proved by Digest 27.7.4. A fiction is thus defined: It is a falsehood accepted as true, for a special and just reason expressed in law, as is clear from Digest 4.2.23, and everything on fictions.
Argument is thus defined: It is a proposition drawn from certain facts, tending to show or conclude to a result. Hence when several indications or propositions, or several presumptions, or several witnesses are joined together in proof of some conclusion, the combination is called argumentation or argument, which is the collecting of several things toward one conclusion,
Conjecture is thus defined: It is an accepting or regarding of something as true, from some other thing that it is likely is designed to show it, as from a signboard we conjecture a shop, or from style of dress a prostitute,
On indications Baldus writes more fully: “Sometimes indications are light and by a great space of reason distant from necessary belief in truth, such as flight alone, being seen talking together, and the like. In those cases indications are less than half-proof,
He mentions a kind of presumption called circumferent, which proves only when collected with others, apparently the origin of modern “circumstantial evidence.”
The medieval church regarded heresy in much the same way that a modern state regards terrorism, with the added fear that the success of heresy would destroy not only civil society but also immortal souls. As with terrorism, it proved particularly difficult to obtain evidence, since heretics lied on each others’ behalf, were protected by sympathetic populations, and merged into other heretical groups “by whatever names they are called, having many faces but intertwined in their tails.”
The famous inquisitor, Bernard Gui, explains in his Manual (c. 1323) why the inquisitor cannot afford to be squeamish about evidential difficulties: “It is, indeed, all too difficult to bring heretics to reveal themselves when, instead of frankly avowing their error they conceal it, or when there is not sure and sufficient testimony against them. Under these circumstances difficulties rise on all sides for the investigator. On the one hand his conscience will torment him if he punishes without having obtained a confession or conviction of heresy; on the other hand, all that repeated experience
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To ensure that heresy was really destroyed, a remarkable weakening of the rules of evidence was countenanced in this case, which was not allowed in any other legal context: “One accused or suspected of heresy against whom there has arisen great and vehement suspicion of this crime and who has abjured heresy in court, if he afterward falls into it should be regarded by a legal fiction as relapsed, even though before his abjuration of heresy the crime was not fully proved against him. But if there was only a light and moderate suspicion against him, he may be more severely punished for that
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The language of probable signs and vehement suspicions appears throughout the writings of the inquisitors.
The Inquisition’s ability to produce confessions of whatever it wanted was legendary. Even at the time it was said that if St. Peter and St. Paul had appeared before the inquisitors, they would have been found to be heretics.
Generally, Chinese law, though developed independently of Roman law and its derivatives, used witnesses and torture in a similar way but discussed them in much less precise terminology. Han law, contemporary with the early Roman Empire, produced “clear” proof by using witnesses and torture, and there was some recognition that torture could produce false confessions.
The Confucian approach to disputes emphasized mediation to restore harmony rather than adjudication of rights.
Confession was regarded as almost always necessary, and torture was ordered when guilt was already certain and clear but the accused refused to confess. Early Portuguese visitors to China found torture routinely used on suspects against whom there was the least evidence and on witnesses who disagreed with one another. There was no space in Chinese law for a legal profession, and hence for any formal science of law, and so for a forum for discussion of legal questions like the strength of evidence.
What is interesting about proof in Renaissance law is not so much developments in theory, of which there are almost none, as the insight that the extensive records of real cases provide into people’s familiarity with concepts of evidence. In case after case, the medieval language of probability and presumptions is used by many, not just lawyers, to discuss the worth of evidence. Henry
Modern lawyers will recognize here a “golden thread” speech (“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt. . . . If, at the end of and on the whole of the case, there is a reasonable doubt . . . the prisoner is entitled to an acquittal”)10—that is, a general purpose appeal to the burden of proof that the defendant uses as a last resort.
In the three hundred years from Baldus to Leibniz, there were no conceptual developments of any importance in the legal theory of evidence. The reason is that, if the law is to keep to a nonnumerical approach to evidence, there is essentially no development possible. Baldus’s theory is complete and is in no important respect improved on by modern treatments of evidence in law.
In discussing Renaissance law and its impact, it should be kept in mind that the law was then much less an esoteric specialization than it is today. Such unlikely people as Alberti and Copernicus were actually doctors of canon law, while almost all of the founders of mathematical probability had some legal connection: Fermat was a professional lawyer, Cardan and Pascal were the sons of lawyers, Huygens was a doctor of civil and canon law,
Leibniz, who (as described in the epilogue) saw the legal theory of evidence as a logic of probability, was first trained as a lawyer. (A
Despite humanist attacks, the elaborate medieval developments in Continental law remained generally intact. In terms of quantity, if not quality, the high point of academic legal thought on probability and presumptions is reached in the three massive volumes of Mascardi’s On Proofs, of 1584, and the two of Menochio’s On Presumptions, Conjectures, Signs, and Indications, of 1587. Though the production of large Latin tomes on evidence did not cease after that time,16 the two were always taken to be the definitive treatments.
According to Aristotle’s Rhetoric to Alexander, the Rhetoric to Herennius, and Quintilian, presumption includes argument, sign, and example.
So far the story of probability is one of progress. Progress with interruptions and losses, certainly, but still a movement without notable regressions. Now for something completely different.
But gradually, fear of sorcery increased, the interpretation of biblical passages about witches became more literal, and the forces of legal repression became more organized.34 The fourteenth century saw little actual attention to witches, but the increased use of torture had the capacity to produce occasional bizarre confessions. In a case in which a witch confessed to adoring the devil and killing children by spells, Bartolus advised that she be burned.
The fifteenth century, the century of the burning of Joan of Arc, of Bluebeard, and Dracula, of the pictures of danses macabres everywhere, saw a sharp increase in fears in general and in fear of witchcraft in particular.36 The outcome can be read at firsthand in the Malleus Maleficarum, or Hammer of Witches, written by the inquisitors Kramer and Sprenger in 1487.
The matter of cows is important in evaluating just how much the inquisitors’ canons of evidence led to wrong conclusions. Though real witches did not exist, we cannot dismiss all the confessions as false, since there were no doubt many people who believed they were witches, especially after attending drug-assisted orgies.
psychosomatic illness being what it is, it is only too likely that many people became sick as a result of being threatened by someone with the reputation of being a witch. On the other hand, there seems to be no way of actually bewitching a cow.
(Animals are also an indicator of how rational some of the judicial practice of the day was. A rooster was tried, convicted, and burned at Basel in 1474 for laying eggs, the law of the state thus making up for what was defective in the law of nature. Trials of animals peaked in the sixteenth century. Pigs were probably the worst treated, possibly because of their near-human squeals.46 Combination witch-animal trials were also possible, as numbers of werewolves were discovered, mostly in Germ...
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One question deals at length with the grades of suspicion. They are divided, as usual, into light, probable, and vehement, with supporting quotations from various canons on heresy and the commentaries of canon lawyers.
The witch-burning craze continued unabated through the sixteenth century and only lessened toward the middle of the seventeenth. Estimates of the dead do not start below fifty thousand. The Malleus figured prominently; editions rolled off the presses. Sylvester Prierias (noted in the next chapter in connection with probabilism in moral theology) was also an inquisitor in Lombardy and was one of the first to quote the Malleus with approval.
And Jean Bodin (noted in a later chapter for his reasonable views on the evaluation of histories) says of witches that “one accused of being a witch ought never to be fully acquitted and set free unless the calumny of the accuser is clearer than the sun, inasmuch as the proof of such crimes is so obscure and so difficult that not one witch in a million would be accused or punished if the procedure were governed by the usual rules.”
But at times when there was no witch hysteria in train, the legal rules of evidence could act to obstruct popular pressures for witch burnings.
Some thousand witches were executed in England in the course of the next century, a much smaller figure than for Germany, France, or Scotland. Reginald Scot’s Discoverie of Witchcraft of 1584 attacked the credulity of the Malleus and Bodin, including their reliance on presumptions and suspicions to an extent not acceptable with other crimes.66 Scot was answered by King James VI of Scotland in his Demonologie, a book based on the king’s own interrogation of witches who confessed to trying to kill him. James thinks the accused against whom there is only moderate evidence will all be eventually
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In England, as later in New England, there was some association between Calvinism and the persecution of witches.
But one of the most intelligent examinations of the inadequacy of evidence against witches was by a nonconformist minister in Essex, George Gifford. He states clearly the decision-theoretic argument that it is “much better that some should be put to death wrongfully, than to leave only one witch, which might kill and destroy many” but replies that scripture requires us “to condemn none but upon sure ground, and infallible proofs, because presumptions shall not warrant or excuse them before God if guiltless blood be shed.”
The typically Continental phrase, “Not legally guilty . . . but just ground of vehement suspicion,” occurs in a New England witch trial of 1673.
Among the forces restraining the witch craze was one that might not be expected in this context, the Spanish Inquisition. Though zealous against heretics and crypto-Jews, the Spanish authorities tended not to believe reports of witches, and Spain remained largely free of witches. The Inquisition warned its judges against believing everything in the Malleus, even if the author “writes about it as something he himself has seen and investigated.”
The Italian Inquisition was also generally skeptical of witchcraft, perhaps partly because of its strict rules on accepting evidence. The testimony of witnesses of poor reputation was not admitted; alleged participants in Sabbaths were not allowed to name accomplices; implausible confessions were regularly deemed invalid; failure of the accused to show emotion during interrogation was not regarded as significant; the accused was given a defense lawyer, who was provided with a copy of the trial proceedings; torture was permitted only after the defense was heard.79 In 1582 a minor judge in the
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Montaigne attacked witch trials, again on the basis of the insufficiency of evidence:
Methinks one is pardonable in disbelieving a miracle, at least, at all events where one can elude its verification as such, by means not miraculous; and I am of St. Augustine’s opinion, that “tis better to lean towards doubt than assurance, in things hard to prove and dangerous to believe.
Such a quick and general way of dismissing experience hardly carries the conviction of Salazar’s comprehensive questioning of the actual evidence. Montaigne’s attack on judicial torture suffers from the same defect.82 On the other hand, the passage about witches is preceded by some discussion of the spread of rumors, which does persuasively explain how false reports come to be widely believed.
The best known of later attacks on witchcraft was that of Friedrich von Spee, the German Jesuit, poet, and canon lawyer. His Cautio Criminalis, published anonymously in 1631, must be one of the most useful works of a canon lawyer, if only in restraining the excesses of other canon lawyers.83 Like almost everyone opposed to witch trials, Spee avoids discussing whether witches really exist and concentrates instead on abuses of the law of evidence. He represents the psychological realities of witch finding as distorting the law of evidence so as to lead to inevitable conviction, not only for the
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English law certainly had reasons for feeling superior to the system across the Channel, and English lawyers then and later have taken every opportunity to stress its superiority, especially in the treatment of evidence. The truth is perhaps not so black and white. The issue as to whether the Continental or the English system of evidence was better at reaching the truth was taken up in Sir John Fortescue’s Praises of the Laws of England, of about 1470.
The necessity of two witnesses was also a rule in which the survivors of Henry VIII’s purges discerned virtue. As we saw, both More and Fisher had been condemned on the evidence of one witness.
