Unconstrained judicial systems

From American Heroes: Profiles of Men and Women Who Shaped Early America by Edmund S. Morgan. Page 116.

There seems to be no doubt that malevolent witchcraft was occasionally practiced in England and probably in New England. It is not impossible, perhaps not even improbable, that some of the persons accused at Salem believed themselves to be possessed of diabolical powers. Certainly some of them, upon being searched, were found to be in possession of the accepted paraphernalia of witchcraft.

These paraphernalia consisted, as they still do where witchcraft continues to be practiced, of dolls that are supposed to represent the victims. When the witch strokes the doll or sticks pins in it, the person bewitched is supposed to undergo excruciating pains in the part of the body corresponding to the part of the doll the witch is touching or pricking. Many of the persons convicted at Salem were found to have dolls in their possession, a piece of circumstantial evidence that in itself was almost sufficient to convict them. But there were other ways of determining whether a person was a witch or not.

Witches were thought to have witch-marks on some part of their bodies, an area of skin that was red or blue or in some way different from the rest. Furthermore, at some time during a twenty-four-hour period, it was thought, the devil or one of his imps would visit the witch and be visible to observers. He might come in the shape of a man or a woman or a child, or a cat, dog, rat, toad—indeed, any kind of creature. The devil could take nearly any shape he chose. So the usual procedure against a person accused of witchcraft was to search his or her belongings for dolls, search his or her body for witch-marks, and then keep watch over the person in the middle of a room for twenty-four hours. God help anyone who had an old doll in his possession and in addition had some skin blemish. If there was that much evidence, it was easy enough in the middle of the night, after long hours of watching, to imagine that you saw some person or animal, perhaps a mouse, come near the witch.

But this procedure could and did result in acquittals. In England in the sixteenth and seventeenth centuries, the majority of the accused witches brought to trial were acquitted. It is interesting to notice, however, that in the English cases the attention of the court centered mainly on the question of the alleged harm done by the witch rather than on her confederation with the devil. And in England the trials were usually isolated affairs, as were the trials in New England before 1692. One trial did not generate another. The Salem trials seem to have resembled European continental witch trials more than English ones, and in several ways.

This difference between the Continent and England was critical when you examine the processes from a systems persective.

On the Continent the courts fastened their attention on the witch’s alleged pact with the devil, which they made sufficient cause for execution whether the witch was believed to have done harm to anyone or not. And pacts with the devil generally involved attendance at a witches’ Sabbath, where all the witches of a region gathered to perform rites prescribed by their Satanic master. Witches who confessed to their crimes accordingly were expected to name the other witches whom they saw at these gatherings. Thus the circle of the accused could widen rapidly, and a witch trial turn into a witch hunt. The same sort of thing happened at Salem. Here, too, the focus was on the pact with the devil. Here, too, the accusations multiplied with every confession. And there were other resemblances. In Salem as on the Continent, the accusers were frequently children or teenagers. On the Continent the great majority of trials resulted in convictions, and not infrequently one trial would generate another until a whole region broke out in a witch hunt like that which occurred at Salem in 1692.

So in England, and the colonies up until the time of Salem, you had to show easily conjured evidence of dolls, rashes, and affectionate animals BUT you had also to demonstrate harm. That raised a significant filter to reduce the number of convictions and executions.

Under the continental system, you did not need to show harm. And the accused were expected to indict others. A very recipe for an unconstrained system likely to run out of hand.