For since it is said, that when all three of the above considerations are in agreement, then she should be thought to be manifestly taken in heresy, it must not be understood that it is necessary for all three to be in agreement, but only that if this is the case the proof is all the stronger. For either one instance by itself of the following two circumstances, namely, the evidence of the fact and the production of legitimate witnesses, is sufficient to cause a person to be reputed as manifestly taken in heresy; and all the more when both these considerations are in agreement.
For when the Jurists ask in how many ways a person may be considered as manifestly taken in heresy, we answer that there are three ways, as S. Bernard has explained. This matter was treated of above in the First Question at the beginning of this work, namely, the evidence of the fact, when a person has publicly preacher heresy. But here we consider the evidence of the fact provided by public threats uttered by the accused, as when she said, You shall have no healthy days, or some such thing, and the threatened effect has followed. The other two ways are the legitimate proof of the case by witnesses, and thirdly by her own confession. Therefore, if each of these singly is sufficient to cause a person to be manifestly suspected, how much more is this the case when the reputation of the accused, the evidence of the fact, and the depositions of witnesses all together point to the same conclusion. It is true that S. Bernard speaks of an evident fact, and we here speak of the evidence of the fact; but this is because the devil does not work openly, but secretly. Therefore the injuries and the instruments of witchcraft which are found constitute the evidence of the fact. And whereas in other heresies an evident fact is alone sufficient, here we join three proofs together.
Secondly, it is thus proved that a person so taken is to be punished according to the law, even though she denies the accusation. For a person taken on the evidence of the fact, or on the depositions of witnesses, either confesses the crime or does not. If he confesses and is impenitent, he is to be handed over to the secular courts to suffer the extreme penalty, according to the chapter ad abolendam, or he is to be imprisoned for life, according to the chapter excommunicamus. But if he does not confess, and stoutly maintains his denial, he is to be delivered as an impenitent to the power of the Civil Court to be punished in a fitting manner, as Henry of Segusio shows in his Summa, where he treats of the manner of proceeding against heretics.
It is therefore concluded that it is most just if the Judge proceeds in that manner with his questions and the depositions of witnesses, since, as has been said, he can in a case concerning the Faith conduct matters quite plainly and in a short and summary manner; and it is meet that he should consign the accused to prison for a time, or for several years, in case perhaps, being depressed after a year of the squalor of prison, she may confess her crimes.
But, lest it should seem that he arrives at his sentence precipitately, and to show that he proceeds with all equity, let us inquire into what should next be done.
PART III, SECOND HEAD, QUESTION VIII.
It is asked whether, after she has denied the accusation, the witch ought to be kept in custody in prison, when the three aforesaid conditions, namely, her reputation, the evidence of the fact, and the depositions of witnesses, are in agreement; or whether she should be dismissed with the security of sureties, so that she may again be called and questioned. As to this question there are three opinions.
First, it is the opinion of some that she should be sent to prison, and that by no means ought she to be dismissed under bond; and they hold this opinion on the strength of the reasoning brought forward in the preceding question, namely, that she is to be considered as manifestly guilty when all those three considerations are in agreement.
Others, again, think that before she is imprisoned she may be dismissed with the safeguard of sureties; so that if she makes her escape, she can then be considered as convicted. But after she has been imprisoned because of her negative answers, she is not to be released under any safeguard or condition of bail, that is, when those three considerations noted above are in agreement; because in that case she could not subsequently be sentenced and punished by death; and this, they say, is the general custom.
The third opinion is that no definite rule can be given, but that it must be left to the Judge to act in accordance with the gravity of the matter as shown by the testimony of the witnesses, the reputation of the accused, and the evidence as to the fact, and the extent to which these three agree with each other; and that he should follow the custom of the country. And they who hold this opinion conclude by saying that if reputable and responsible sureties are not to be procured, and the accused is suspected of contemplating flight, she should then be cast into prison. And this third opinion seems to be the most reasonable, as long as the correct procedure if observed; and this consists in three things.
First, that her house should be searched as thoroughly as possible, in all holes and corners and chests, top and bottom; and if she is a noted witch, then without doubt, unless she has previously hidden them, there will be found various instruments of witchcraft, as we have shown above.
Secondly, if she has a maid-servant or companions, that she or they should be shut up by themselves; for though they are not accused, yet it is presumed that none of the accused's secrets are hidden from them.
Thirdly, in taking her, if she be taken in her own house, let her not be given time to go into her room; for they are wont to secure in this way, and bring away with them, some object or power of witchcraft which procures them the faculty of keeping silent under examination.
This gives rise to the question whether the method employed by some to capture a witch is lawful, namely, that she should be lifted from the ground by the officers, and carried out in a basket or on a plank of wood so that she cannot again touch the ground. This can be answered by the opinion of the Canonists and of certain Theologians, that this is lawful in three respects. First, because, as is shown in the introductory question of this Third Part, it is clear from the opinion of many authorities, and especially of such Doctors as no one would dare to dispute, as Duns Scotus, Henry of Segusio and Godfrey of Fontaines, that it is lawful to oppose vanity with vanity. Also we know from experience and the confessions of witches that when they are taken in this manner they more often lose the power of keeping silence under examination: indeed many who have been about to be burned have asked that they might be allowed at least to touch the ground with one foot; and when this has been asked why they made such a request, they have answered that if they had touched the ground they would have liberated themselves, striking many other people dead with lightning.
The second reason is this. It was manifestly shown in the Second Part of this work that a witch loses all her power when she falls into the hands of public justice, that is, with regard to the past; but with regard to the future, unless she receives from the devil fresh powers of keeping silent, she will confess all her crimes. Therefore let us say with S. Paul: Whatsoever we do in word or deed, let all be done in the name of the Lord JESUS Christ. And if the witch be innocent, this form of capture will not harm her.
Thirdly, according to the Doctors it is lawful to counteract witchcraft by vain means; for they all agree as to this, though they are at variance over the question as to when those vain means may also be unlawful. Therefore when Henry of Segusio says that it is lawful to oppose vanity with vanity, this is explained as meaning that he speaks of vain means, not of unlawful means. All the more, then, is it lawful to obstruct witchcraft; and it is this obstruction which is referred to here, and not any unlawful practice.
Let the Judge note also that there are two sorts of imprisonment; one being a punishment inflicted upon criminals, but the other only a matter of custody in the house of detention. And these two sorts are noted in the chapter multorum querela; therefore she ought at least to be placed in custody. But if it is only a slight matter of which she is accused, and she is not of bad reputation, and there is no evidence of her work
upon children or animals, then she may be sent back to her house. But because she has certainly associated with witches and knows their secrets, she must give sureties; and if she cannot do so, she must be bound by oaths and penalties not to go out of her house unless she is summoned. But her servants and domestics, of whom we spoke above, must be kept in custody, yet not punished.
PART III, SECOND HEAD, QUESTION IX.
THERE are two matters to be attended to after the arrest, but it is left to the Judge which shall be taken first; namely, the question of allowing the accused to be defended, and whether she should be examined in the place of torture, though not necessarily in order that she should be tortured. The first is only allowed when a direct request is made; the second only when her servants and companions, if she has any, have first been examined in the house.
But let us proceed in the order as above. If the accused says that she is innocent and falsely accused, and that she wishes to see and hear her accusers, then it is a sign that she is asking to defend herself. But it is an open question whether the Judge is bound to make the deponents known to her and bring them to confront her face to face. For here let the Judge take note that he is not bound either to publish the names of the deponents or to bring them before the accused, unless they themselves should freely and willingly offer to come before the accused and lay their depositions in her presence And it is by reason of the danger incurred by the deponents that the Judge is not bound to do this. For although different Popes have had different opinions on this matter, none of them has ever said that in such a case the Judge is bound to make known to the accused the names of the informers or accusers (but here we are not dealing with the case of an accuser). On the contrary, some have thought that in no case ought he to do so, while others have thought that he should in certain circumstances.
But, finally, Bonifice VIII decreed as follows: If in a case of heresy it appear to the Bishop or Inquisitor that grave danger would be incurred by the witnesses of informers on account of the powers of the persons against whom they lay their depositions, should their names be published, he shall not publish them. But if there is no danger, their names shall be published just as in other cases.
Here it is to be noted that this refers not only to a Bishop or Inquisitor, but to any Judge conducting a case against witches with the consent of the Inquisitor or Bishop; for, as was shown in the introductory Question, they can depute their duties to a Judge. So that any such Judge, even if he be secular, has the authority of the Pope, and not only of the Emperor.
Also a careful Judge will take notice of the powers of the accused persons; for these are of three kinds, namely, the power of birth and family, the power of riches, and the power of malice. And the last of these is more to be feared than the other two, since it threatens more danger to the witnesses if their names are made known to the accused. The reason for this is that it is more dangerous to make known the names of the witnesses to an accused person who is poor, because such a person has many evil accomplices, such as outlaws and homicides, associated with him, who venture nothing but their own persons, which is not the case with anyone who is nobly born or rich, and abounding in temporal possessions. And the kind of danger which is to be feared is explained by Pope John XXII as the death of cutting off of themselves or their children or kindred, or the wasting of their substance, or some such matter.
Further, let the Judge take notice that, as he acts in this matter with the authority of the Supreme Pontiff and the permission of the Ordinary, both he himself and all who are associated with him at the depositions, or afterwards at the pronouncing of the sentence, must keep the names of the witnesses secret, under pain of excommunication. And it is in the power of the Bishop thus to punish him or them if they do otherwise. Therefore he should very implicitly warn them not to reveal the name from the very beginning of the process.
Wherefore the above decrees of Pope Bonifice VIII goes on to say: And that the danger to those accusers and witnesses may be the more effectively met, and the inquiry conducted more cautiously, we permit, by the authority of this statute, that the Bishop or Inquisitors (or, as we have said, the Judge) shall forbid all those who are concerned in the inquiry to reveal without their permission any secrets which they have learned from the Bishop or Inquisitors, under pain of excommunication, which they may incur by violating such secrets.
It is further to be noted that just as it is a punishable offence to publish the names of witnesses indiscreetly, so also it is to conceal them without good reason from, for instance, such people as have a right to know them, such as the lawyers and assessors whose opinion is to be sought in proceeding to the sentence; in the same way the names must not be concealed when it is possible to publish them without risk of any danger to the witnesses. On this subject the above decree speaks as follows, towards the end: We command that in all cases the Bishop or Inquisitors shall take especial care not to suppress the names of the witnesses as if there were danger to them when there is perfect security, not conversely to decide to publish them when there is some danger threatened, the decision in this matter resting with their own conscience and discretion. And it has been written in comment on these words: Whoever you are who are a Judge in such a case, mark those words well, for they do not refer to a slight risk but to a grave danger; therefore do not deprive a prisoner of his legal rights without very good cause, for this cannot but be an offence to Almighty God.
The reader must note that all the process which we have already described, and all that we have yet to describe, up to the methods of passing sentence (except the death sentence), which it is in the province of the ecclesiastical Judge to conduct, can also, with the consent of the Diocesans, be conducted by a secular Judge. Therefore the reader need find no difficulty in the fact that the above Decree speaks of an ecclesiastical and not a secular Judge; for the latter can take his method of inflicting the death sentence from that of the Ordinary in passing sentence of penance.
PART III, SECOND HEAD, QUESTION X.
IF, therefore, the accused asked to be defended, how can this be admitted when the names of the witnesses are kept altogether secret? It is to be said that three considerations are to be observed in admitting any defence. First, that an Advocate shall be allotted to the accused. Second, that the names of the witnesses shall not be made known to the Advocate, even under an oath of secrecy, but that he shall be informed of everything contained in the depositions. Third, the accused shall as far as possible be given the benefit of every doubt, provided that this involves no scandal to the faith nor is in any way detrimental to justice, as will be shown. And in like manner the prisoner’s procurator shall have full access to the whole process, only the names of the witnesses and deponents being suppressed; and the Advocate can act also in the name of procurator.
As to the first of these points: it should be noted that an Advocate is not to be appointed at the desire of the accused, as if he may choose which Advocate he will have; but the Judge must take great care to appoint neither a litigious nor an evil-minded man, nor yet one who is easily bribed (as many are), but rather an honourable man to whom no sort of suspicion attaches.
And the Judge ought to note four points, and if the Advocate be found to conform to them, he shall be allowed to plead, but not otherwise. For first of all the Advocate must examine the nature of the case, and then if he finds it a just one he may undertake it, but if he finds it unjust he must refuse it; and he must be very careful not to undertake an unjust or desperate case. But if he has unwittingly accepted the brief, together with a fee, from someone who wishes to do him an injury, but discovers during the process that the case is hopeless, then he must signify to his client (that is, the accused) that he abandons the case, and must return the fee which he has received. This is the opinion of Godfrey of Fontaines, which is wholly in conformity with the Canon de jud. i, rem non novam. But Henry of Segusio holds an opposite view concerning the return of the fee in a case in which the Advocate has worked very hard. C
onsequently if an Advocate has wittingly undertaken to defend a prisoner whom he knows to be guilty, he shall be liable for the costs and expenses (de admin. tut. i, non tamen est ignotum).
The second point to be observed is that in his pleading he should conduct himself properly in three respects. First, his behaviour must be modest and free from prolixity or pretentious oratory. Secondly, he must abide by the truth, not bringing forward any fallacious arguments or reasoning, or calling false witnesses, or introducing legal quirks and quibbles if he be a skilled lawyer, or bringing counter-accusations; especially in cases of this sort, which must be conducted as simply and summarily as possible. Thirdly, his fee must be regulated by the usual practice of the district.
But to return to our point; the Judge must make the above conditions clear to the Advocate, and finally admonish him not to incur the charge of defending heresy, which would make him liable to excommunication.
The Malleus Maleficarum Page 54