The Malleus Maleficarum

by The Malleus Maleficarum (lit)

  And the whole shall be set down according to the common report. And a little lower:

  The case was heard on the day of the month in the year , in the presence of me the Notary of such and such authority, or of such and such a scribe, and of such and such witnesses who were called and interrogated.

  But before we proceed to the second Head, which deals with the method of conducting this sort of process, we must first say something of the witnesses who are to be examined, as to how many they should be, and what should be their condition.

  PART III, FIRST HEAD, QUESTION II.

  Since we have said that in the second method the evidence of the witnesses is to be written down, it is necessary to know how many witnesses there should be, and of what condition. The question is whether a Judge may lawfully convict any person of the heresy of witchcraft on the evidence of two legitimate witnesses whose evidence is entirely concordant, or whether more than two are necessary. And we say that the evidence of witnesses is not entirely concordant when it is only partially so; that is, when two witnesses differ in their accounts, but agree in the substance or effect: as when one says She bewitched my cow, and the other says, She bewitched my child, but they agree as to the fact of witchcraft.

  But here we are concerned with the case of two witnesses being in entire, not partial, agreement. And the answer is that, although two witnesses seem to be enough to satisfy the rigour of law (for the rule is that that which is sworn to by two or three is taken for the truth); yet in a charge of this kind two witnesses do not seem sufficient to ensure an equitable judgement, on account of the heinousness of the crime in question. For the proof of an accusation ought to be clearer than daylight; and especially ought this to be so in the case of the grave charge of heresy.

  But it may be said that very little proof is required in a charge of this nature, since it takes very little argument to expose a person's guilt; for it is said in the Canon de Haereticis, lib. II, that a man makes himself a heretic if in the least of his opinions he wanders from the teaching and the path of the Catholic religion. We answer that this is true enough with reference to the presumption that a person is a heretic, but not as regards a condemnation. For in a charge of this sort the usual order of judicial procedure is cut short, since the defendant does not see the witnesses take the oath, nor are they made known to him, because this might expose them to grave danger; therefore, according to the statute, the prisoner is not permitted to know who are his accusers. But the Judge himself must by virtue of his office, inquire into any personal enmity felt by the witnesses towards the prisoner; and such witnesses cannot be allowed, as will be shown later. And when the witnesses give confused evidence on account of something lying on their conscience, the Judge is empowered to put them through a second interrogatory. For the less opportunity the prisoner has to defend himself, the more carefully and diligently should the Judge conduct his inquiry.

  Therefore, although there are two legitimate and concordant witnesses against a person, even so I do not allow that this would be sufficient warrant for a Judge to condemn a person on so great a charge; but if the prisoner is the subject of an evil report, a period should be set for his purgation; and if he is under strong suspicion on account of the evidence of two witnesses, the Judge should make him abjure the heresy, or question him, or defer his sentence. For it does not seem just to condemn a man of good name on so great a charge on the evidence of only two witnesses, though the case is otherwise with a person of bad reputation. This matter is fully dealt with in the Canon Law of heretics, where it is set down that the Bishop shall cause three or more men of good standing to give evidence on oath to speak the truth as to whether they have any knowledge of the existence of heretics in such a parish.

  Again it may be asked whether the Judge can justly condemn a person of such heresy only on the evidence of witnesses who in some respects differ in their evidence, or merely on the strength of a general accusation. We answer that he cannot do so on either of the above grounds. Especially since the proofs of a charge ought, as we have said, to be clearer than daylight; and in this particular charge no one is to be condemned on merely presumptive evidence. Therefore in the case of a prisoner who is the subject of a general accusation, a period of purgation shall be set for him; and in the case of one who is under strong suspicion arising from the evidence of witnesses, he shall be made to abjure his heresy. But when, in spite of certain discrepancies, the witnesses agree in the main facts, then the matter shall rest with the Judge's discretion; and indirectly the question arises how often the witnesses can be examined.

  PART III, FIRST HEAD, QUESTION III.

  But it may be asked whether the Judge can compel witnesses to sweat an oath to tell the truth in a case concerning the Faith or witches, of if he can examine them many times. We answer that he can do so, especially an ecclesiastical Judge, and that in ecclesiastical cases witnesses can be compelled to speak the truth, and this on oath, since otherwise their evidence would not be valid. For the Canon Law says: The Archbishop or Bishop may make a circuit of the parish in which it is rumoured that there are heretics, and compel three or more men of good repute, or even, if it seems good to him, the whole neighbourhood, to give evidence. And if any through damnable obstinacy stubbornly refuse to take the oath, they shall on that account be considered as heretics.

  And that the witnesses can be examined several times is shown by the Canon, where it says that, when the witnesses have given their evidence in a confused manner, or appear to have withheld part of their knowledge for some reason, the Judge must take care to examine them afresh; for he may legally do so.

  PART III, FIRST HEAD, QUESTION IV.

  Note that persons under a sentence of excommunication, associates and accomplices in the crime, notorious evildoers and criminals, or servants giving evidence against their masters, are admitted as witnesses in a case concerning the Faith. And just as a heretic may give evidence against a heretic, so may a witch against a witch; but this only in default of other proofs, and such evidence can only be admitted for the prosecution and not for the defence: this is true also of the evidence of the prisoner's wife, sons and kindred; for the evidence of such has more weight in proving a charge than in disproving it.

  This is made clear in the c. in fidei de haer., where it says: As a protection of the faith we allow that in a case of inquiry into the sin of heresy, persons under excommunication and partners and accomplices in the crime shall be admitted as witnesses, in default of other proofs against heretics and their patrons, protectors and defenders; provided that it appears probably both from the number of the witnesses and of those against whom they give evidence, and from other cicumstances, that they are not giving false testimony.

  The case of evidence given by perjurers, when it is presumed that they are speaking out of zeal for the faith, is deal with in the Canon c. accusatus, § licet, where it says that the evidence of perjurers, after they have repented, is admissable; and it goes on to say: If it manifestly appears that they do not speak in a spirit of levity, or from motives of enmity, or by reason of a bribe, but purely out of zeal for the orthodox faith, wishing to correct what they have said, or to reveal something about which they had kept silence, in defence of the faith, their testimony shell be as valid as that of anyone else, provided that there is no other obection to it.

  And it is clear from the same chapter of the Canon that the testimony of men or low repute and criminals, and of servants against their masters, is admitted; for it says: So great is the plague of heresy that, in an action involving this crime, even servants are admitted as witnesses against their masters, and any criminal evildoer may give evidence against any person soever.

  PART III, FIRST HEAD, QUESTION V.

  But if it is asked whether the Judge can admit the mortal enemies of the prisoner to give evidence against him in such a case, we answer that he cannot; for the same chapter of the Canon says: You must not understand that in this kind of charge a mortal personal enemy
may be admitted to give evidence. Henry of Segusio also makes this quite clear. But it is mortal enemies that are spoken of; and it is to be noted that a witness is not necessarily to be disqualified because of every sort of enmity. And a mortal enmity is constituted by the following circumstances: when there is a death feud or vendetta between the parties, or when there has been an attempted homicide, or some serious wound or injury which manifestly shows that there is mortal hatred on the part of the witness against the prisoner, And in such a case it is presumed that, just as the witness has tried to inflict temporal death on the prisoner by wounding him, so he will also be willing to effect his object by accusing him of heresy; and just as he wished to take away his life, so he would be willing to take away his good name. Therefore the evidence of such mortal enemies is justly disqualified.

  But there are other serious degrees of enmity (for women are easily provoked to hatred), which need not totally disqualify a witness, although they render his evidence very doubtful, so that full credence cannot be placed in his words unless they are substantiated by independent proofs, and other witnesses supply an indubitable proof of them. For the Judge must ask the prisoner whether he thinks that he has any enemy who would dare to accuse him of that crime out of hatred, so that he might compass his death; and if he says that he has, he shall ask who that person is; and then the Judge shall take note whether the person named as being likely to give evidence from motives of malice has actually done so. And if it is found that this is the case, and the Judge has learned from trustworthy men the cause of that enmity, and if the evidence in question is not substantiated by other proofs and the words of other witnesses, then he may safely reject such evidence. But if the prisoner says that he hopes he has no such enemy, but admits that he has had quarrels with women; or if he says that he has an enemy, but names someone who, perhaps, has not given evidence, in that case, even if other witnesses say that such a person has given evidence from motives of enmity, the Judge must not reject his evidence, but admit it together with the other proofs.

  There are many who are not sufficiently careful and circumspect, and consider that the depositions of such quarrelsome women should be altogether rejected, saying that no faith can be placed in them, since they are nearly always actuated by motives of hatred. Such men are ignorant of the subtlety and precautions of magistrates, and speak and judge like men who are colour-blind. But these precautions are dealt with in Questions XI and XII.

  PART III, SECOND HEAD, QUESTION VI.

  In considering the method of proceeding with a trial of a witch in the cause of faith, it must first be noted that such cases must be conducted in the simplest and most summary manner, without the arguments and contentions of advocates.

  This is explained in the Canon as follows: It often happens that we institute a criminal process, and order it to be conducted in a simple straightforward manner without the legal quibbles and contentions which are introduced in other cases. Now much doubt had been experienced as to the meaning of these words, and as to exactly in what manner such cases should be conducted; but we, desiring as far as possible to remove all doubt on the matter, sanction the following procedure once and for all as valid: The Judge to whom we commit such a case need not require any writ, or demand that the action should be contested; he may conduct the case on holidays for the sake of the convenience of the public, he should shorten the conduct of the case as much as he can by disallowing all dilatory exceptions, appeals and obstructions, the impertinent contentions of pleaders and advocates, and the quarrels of witnesses, and by restraining the superflous number of witnesses; but not in such a way as to neglect the necessary proofs; and we do not mean by this that he should omit the citation of and swearing of witnesses to tell and not to hide the truth.

  And since, as we have shown, the process is to be conducted in a simple manner, and it is initiated either at the instance of an accuser, or of an informer actuated by zeal, or by reason of a general outcry and rumour; therefore the Judge should try to avoid the first method of beginning the action, namely, at the instance of an accusing party. For the deeds of witches in conjunction with devils are done in secret, and the accuser cannot in this case, as in others, have definite evidence by which he can make his statements good; therefore the Judge ought to advise the accuser to set aside his formal accusation and to speak rather as an informer, because of the grave danger that is incurred by an accuser. And so he can proceed in the second manner, which is commonly used, and likewise in the third manner, in which the process is begun not at the instance of any party.

  It is to be noted that we have already said that the Judge ought particularly to ask the informer who shares or could share in his knowledge of the case. Accordingly the Judge should call as witnesses those whom the informer names, who seem to have most knowledge of the matter, and their names shall be entered by the scribe. After this the Judge, having regard to the fact that the aforesaid denunciation of heresy involves of its very nature such a grave charge that it cannot and must not be lightly passed over, since to do so would imply an offence to the Divine Majesty and an injury to the Catholic Faith and to the State, shell proceed to inform himself and examine the witnesses in the following manner.

  Examination of Witnesses.

  Let the Judge take care not to delay the following questions, but to proceed at once with them. Let he be asked why the common people fear her, and whether she knows that she is defamed and hated, and why she had threatened such a person, saying, You shall not cross me with impunity, and let her answers be noted.

  Then let he be asked what harm that person had done her, that she should have used such words to threaten him with injury. And note that this question is necessary in order to arrive at the cause of their enmity, for in the end the accused will allege that the informer has spoken out of enmity; but when this is not mortal, but only a womanish quarrel, it is no impediment. For this is a common custom of witches, to stir up enmity against themselves by some word or action, as, for example, to ask someone to lend them something or else they will damage his garden, or something of that sort, in order to make an occasion for deeds of witchcraft; and they manifest themselves either in word or in action, since they are compelled to do so at the instance of the devils, so that in this way the sins of Judges are aggravated while the witch remains unpunished.

  For note that they do not do such things in the presence of others, so that if the informer wishes to produce witnesses he cannot do so. Note again that they are spurred on by the devils, as we have learned from many witches who have afterwards been burned; so that often they have to work witchcraft against their own wills.

  Further, she was asked how the effect could follow from those threats, as that a child or animal should so quickly be bewitched, and she answered. Asked, Why did you say that he would never know a day of health, and it was so? she answered. And if she denies everything, let her be asked concerning other bewitchments, alleged by other witnesses, upon cattle or children. Asked why she was seen in the fields or in the stable with the cattle, and touching them, as is sometimes their custom, she answered.

  Asked why she touched a child, and afterwards it fell sick, she answered. Also she was asked what she did in the fields at the time of a tempest, and so with many other matters. Again, why, having one or two cows, she had more milk than her neighbours who had four or six. Again, let her be asked why she persists in a state of adultery or concubinage; for although this is beside the point, yet such questions engender more suspicion than would the case with a chaste and honest woman who stood accused.

  And not that she is to be continually questioned as to the depositions which have been laid against her, to see whether she always returns the same answers or not. And when this examination has been completed, whether her answers have been negative, or affirmative, or ambiguous, let them be written down: Executed in such a place, etc., as above.

  PART III, SECOND HEAD, QUESTION VII.

  It is asked first what is to be done
when, as often happens, the accused denies everything. We answer that the Judge has three points to consider, namely, her bad reputation, the evidence of the fact, and the words of the witnesses; and he must see whether all these agree together. And if, as very often is the case, they do not altogether agree together, since witches are variously accused of different deeds committed in some village or town; but the evidences of the fact are visible to the eye, as that a child has been harmed by sorcery, or, more often, a beast has been bewitched or deprived of its milk; and it a number of witnesses have come forward whose evidence, even if it show certain discrepancies (as that one should say she had bewitched his child, another his beast, and a third should merely witness to her reputation, and so with the others), but nevertheless agree in the substance of the fact, that is, as to the witchcraft, and that she is suspected of being a witch; although those witnesses are not enough to warrant a conviction without the fact of the general report, or even with that fact, as was shown above at the end of Question III, yet, taken in conjunction with the visible and tangible evidence of the fact, the Judge may, in consideration of these three points together, decide that the accused is to be reputed, not as strongly or gravely under suspicion (which suspicions will be explained later), but as manifestly taken in the heresy of witchcraft; provided, that is, that the witnesses are of a suitable condition and have not given evidence out of enmity, and that a sufficient number of them, say six or eight or ten, have agreed together under oath. And then, according to the Canon Law, he must subject her to punishment, whether she has confessed her crime or not. And this is proved as follows.