And it is not a valid argument for him to say to the Judge that he is not defending the error, but the person. For he must not by any means so conduct his defence as to prevent the case from being conducted in a plain and summary manner, and he would be doing so if he introduced any complications or appeals into it; all which things are disallowed together. For it is granted that he does not defend the error; for in that case he would be more damnably guilty than the witches themselves, and rather a heresiarch than a heretical wizard. Nevertheless, if he unduly defends a person already suspect of heresy, he makes himself as it were a patron of that heresy, and lays himself under not only a light but a strong suspicion, in accordance with the manner of his defence; and ought publicly to abjure that heresy before the Bishop.
We have put this matter at some length, and it is not to be neglected by the Judge, because much danger may arise from an improper conducting of the defence by an Advocate or Procurator. Therefore, when there is any objection to the Advocate, the Judge must dispense with him and proceed in accordance with the facts and the proofs. But when the Advocate for the accused is not open to any objection, but is a zealous man and lover of justice, then the Judge may reveal to him the names of the witnesses, under an oath of secrecy.
PART III, SECOND HEAD, QUESTION XI.
BUT it may be asked: What, then, should the Advocate acting a Procurator for the accused do, when the names of the witnesses are withheld from both himself and his client, although the accused earnestly desires that they should be made known? We answer that he should obtain information from the Judge on every point of the accusation, which must be given to him at his request, only the names of the witnesses being suppressed; and with this information he should approach the accused and, if the matter involves a very grave charge, exhort him to exercise all the patience which he can.
And if the accused again and again insists that she should know the names of the witnesses against her, he can answer her as follows: You can guess from the charges which are made against you who are the witnesses. For the child or beast of so and so has been bewitched; or to such a woman or man, because they refused to lend you something for which you asked, you said, "You shall know that it would have been better to have agreed to my request," and they bear witness that in consequence of your words the person was suddenly taken ill; and facts are stronger evidence than words. And you know that you have a bad reputation, and have for a long time been suspected of casting spells upon and injuring many men. And talking in this manner, he may finally induce her to enter a plea that they had borne witness against her from motives of hatred; or to say, "I confess that I did say so, but not with any intent to do harm."
Therefore the Advocate must first lay before the Judge and his assessors this plea of personal enmity, and the Judge must inquire into it. And if it should be found to be a case of mortal enmity, as that there has been some attempted or accomplished murder committed by the husbands or kindred of the parties, or that someone of one party has been charged with a crime by someone of the other party, so that he fell into the hands of public justice, or that serious wounds have resulted from quarrels and brawls between them; then the upright and careful Judge will consult with his assessors whether the accused of the deponent was the aggravating party. For if, for example, the husband or friends of the accused have unjustly oppressed the friends of the deponent, then if there is no evidence of the fact that children or animals or men have been bewitched, and if there are no other witnesses, and the accused is not even commonly suspected of witchcraft, in that case it is presumed that the depositions were laid against her from motives of vengeance, and she is to be discharged as innocent and freely dismissed, after having been duly cautioned against seeking to avenge herself, in the manner which is usually used by Judges.
The following case may be put. Katharina’s child, or she herself, is bewitched, or she has suffered much loss of her cattle; and she suspects the accused because her husband or brothers had previously brought on an unjust accusation against her own husband or brother. Here the cause of enmity is twofold on the part of the deponent, having its root both in her own bewitchment and in the unjust accusation brought against her husband or brother. Then ought her deposition to be rejected or not? From one point of view it seems that it should, because she is actuated by enmity; from another point of view it should not, because there is the evidence of the fact in her bewitchment.
We answer that if in this case there are no other deponents, and the accused is not even under common suspicion, then her depositions cannot be allowed, but must be rejected; but if the accused is rendered suspect, and if the disease is not due to natural causes but to witchcraft (and we shall show later how this can be distinguished), she is to be subjected to a canonical purgation.
If it be asked further whether the other deponents must bear witness to the evidence of the fact as experienced by themselves or others, or only to the public reputation of the accused; we answer that, if they give evidence of the fact, so much the better. But if they only give evidence as to her general character, and the matter stands so, then, although the Judge must reject that deponent on the grounds of personal enmity, yet he shall take the evidence of the fact, and of her bad reputation given by the other witnesses, as proof that the accused must be strongly suspect, and on these grounds he can sentence her to a threefold punishment: namely, to a canonical purgation because of her reputation; or to an abjuration, because of the suspicion under which she rests, and there are various forms of abjuration for various degrees of suspicion, as will be shown in the fourth method of passing sentence; or, because of the evidence of the fact, and if she confesses her crime and is penitent, she shall not be handed over to the secular branch for capital punishment, but be sentenced by the ecclesiastical Judge to imprisonment for life. But notwithstanding the fact that she has been sentenced to imprisonment for life by the ecclesiastical Judge, the secular Judge can, on account of the temporal injuries which she has committed, deliver her to be burned. But all these matters will be made clear later when we deal with the sixth method of passing sentence.
To sum up: Let the Judge first take care not to lend too easy belief to the Advocate when he pleads mortal enmity on behalf of the accused; for in these cases it is very seldom that anyone bears witness without enmity, because witches are always hated by everybody. Secondly, let him take note that there are four ways by which a witch can be convicted, namely, by witnesses, by direct evidence of the fact, and by her own confession. And if she is detained on account of a general report, she can be convicted by the evidence of witnesses; if on account of definite suspicion, the direct or indirect evidence of the facts can convict her, and by reason of these the suspicion may be judged to be either light or strong or grave. All this is when she does not confess; but when she does, the case can proceeds as has been said.
Thirdly, let the Judge make use of all the foregoing circumstances to meet the plea of the Advocate, whether the accused is charged only by reason of a general report, or whether there are also certain evidences to support the charge by which she incurs slight or strong suspicion; and then he will be able to answer the Advocate’s allegation of personal enmity, which is the first line of defence which he may assume.
But when the Advocate assumes the second line of defence, admitting that the accused has used such words against the deponent as, "You shall soon know what is going to happen to you," or "You will wish soon enough that you had lent or sold me what I asked for," or some such words; and submits that, although the deponent afterwards experienced some injury either to this person or his property, yet it does not follow from this that the accused was the cause of it as a witch, for illnesses may be due to various different causes. Also he submits that it is a common habit of women to quarrel together with such words, etc.
The Judge ought to answer such allegations in the following manner. If the illness is due to natural causes, then the excuse is good. But the evidence indicates the contrary; for
it cannot be cured by any natural remedy; or in the opinion of the physicians the illness is due to witchcraft, or is what is in common speech called a Night-scathe. Again, perhaps other enchantresses are of the opinion that it is due to witchcraft. Or because it came suddenly, without any previous sickening, whereas natural diseases generally develop gradually. Or perhaps because the plaintiff had found certain instruments of witchcraft under his bed or in his clothes or elsewhere, and when these were removed he was suddenly restored to health, as often happens, as we showed in the Second Part of this work where we treated of remedies. And by some such answer as this the Judge can easily meet this allegation, and show that the illness was due rather to witchcraft than to any natural causes, and that the accused must be suspected of causing such witchcraft, by reason of her threatening words. In the same way, if someone said, "I wish your barn would be burned down," and this should afterwards happen, it would engender a grave suspicion that the person who had used that threat had caused the barn to be set on fire, even if another person, and not he himself, had actually set light to it.
PART III, SECOND HEAD, QUESTION XII.
TAKE notice that only mortal enemies are debarred from giving evidence, as was shown in the Fifth Question. But the Judge may consider that to come to a decision about such enmity by the means we have just explained is rather dubious and unsatisfactory; and the accused or her Procurator may not be willing to accept a decision arrived at on such grounds as to whether the enmity is mortal or not. Therefore the Judge must use other means to decide concerning the alleged enmity, so that he may not punish the innocent, but exact full justice from the guilty. And though these means may savour of cunning and even guile, yet the Judge may employ them for the good of the faith and the State; for even S. Paul says: But being crafty, I caught you by guile. And these means are especially to be employed in the case of a prisoner who has not been publically defamed, and is not suspected because of the evidence of any fact; and the Judge may also employ them against prisoners who have alleged enmity on the part of the deponents, and wish to know all the names of the witnesses.
The first method is this. The accused or her Advocate is given a copy of the process with the names of the deponents or informers, but not in the order in which they deposed; but in such a way that the name of the witness who comes first in the copy is sixth or seventh in the schedule, and he who comes second is last or last but one. In this way the accused will be deceived as to which witness deposed this or that. And then she will either say that they are all her enemies, or not; and if she says that they all are, she will be more easily detected in a lie when the cause of the enmity is investigated by the Judge; and if she names only certain ones, still the cause of the enmity will be more easily investigated.
The second method is similar, when the Advocate is given a copy of the process, and separately a list of the names of the deponents; but there are added other matters perpetrated elsewhere by witches, but not set down in writing by the witnesses or deponents. And so the accused will not be able to say definitely that this one or that one is her mortal enemy, because she does not know what they have deposed against her.
The third method was touched upon in the Fifth Question above. For when the accused is questioned at the end of her second examination, and before she has demanded to be defended or an Advocate has been allotted to her, let her be asked whether she thinks that she has any mortal enemies who, setting aside all fear of God, would falsely accuse her of the crime of heresy and witchcraft. And then perhaps without thinking, and not having seen the depositions of the witnesses, she will answer that she does not think that she has any such enemies. Or if she says, I think I have, and names any of the witnesses who have laid information, and the reason for that enmity is known, then the Judge will be able to investigate it with more certainty afterwards, when the accused has been given separate copies of the process and of the names of the witnesses, in the manner we have explained.
The fourth method is this. At the end of her second examination and confession (as we showed in the Sixth Question), before she is granted any means of defence, let her be questioned as to the witnesses who have laid the more serious charges against her, in this manner. Do you know So-and-so naming one of the witnesses; and then she will answer either Yes or No. If she says No, she will not be able, after she has been given means of defence and an Advocate, to plead that he is a mortal enemy, since she has said on oath that she does not know him. But if she says Yes, let her be asked whether she knows or has heard that he or she has acted in any way contrary to the Christian faith in the manner of a witch. Then if she says Yes, for he did such and such a thing; let her be asked whether he is her friend or enemy; and she will immediately answer that he is her friend, because of the testimony of such is not of very great account; and consequently she will not be able afterwards to plead an oath through her Advocate that he is her enemy, for she has already said that he is her friend. But if she answers that she knows nothing about him, let her again be asked whether he is her friend or enemy, and she will at once answer that he is her friend; for it would be futile to allege enmity on the part of someone of whom she knows nothing. Therefore she says, I am his friend, but if I knew anything about him I would not fail to reveal it. Therefore she will not be able afterwards to plead that her is her enemy. Or perhaps she will from the very beginning allege reasons for mortal enmity, and in that case some credence must be placed in the plea of the Advocate.
A fifth method is to give the Advocate or the accused a copy of the process, with the names of the informers suppressed. And then the accused will guess, and very often rightly, who has deposed such and such against her. And then if she says, So-and-so is my mortal enemy, and I am willing to prove it by witnesses, then the Judge must consider whether the person named is the same person named in the schedule, and since she has said that she is willing to prove it by witnesses, he will examine those witnesses and inquire into the causes of the enmity, having secretly called into consultation learned and aged men of known prudence. And if he finds sufficient reasons for mortal enmity, he shall reject that evidence and dismiss the prisoner, unless there are other grave charges against her, sworn to by other witnesses.
And this fifth method is commonly used; and it is found in practice that witches quickly guess from the copy of the process who has laid information against them. And because in such cases mortal enmity is rarely found unless it arises from the wicked deeds of the witch, therefore the Judge can easily come to a decision by the above means. Also it is to be noted that often the informers desire to confront the witch personally, and to charge her to her face with the bewitchment which has befallen them.
There is still one more method whereunto the Judge may finally have recourse, when perhaps the other methods, and especially the first four, seem to some to savour too much of cunning and deceit. Accordingly, to satisfy and content the scrupulous, and that no fault may be found with the Judge, let him take care, after he has found by the above methods that there is no mortal enmity between the accused and the deponent, but wishes to remove all grounds for complaint by settling the question finally in consultation with his other assessors, to act as follows. Let him give to the accused or her Advocate a copy of the process, with the names of the deponents or informers suppressed. And since her defence is that she has mortal enemies, and perhaps she has alleged various reasons for the enmity, whether or not the facts are in agreement with her statements, let the Judge call into consultation learned men of every faculty (if such can be had), or at least some honest and reputable persons (for this is the purport of that statute we have so often quoted); and let him cause the whole process to be read through to them from end to end by the Notary or scribe, and let the names of the witnesses be made known to them, but under an oath of secrecy; and he shall first inquire whether or not they are willing to be bound by such an oath, for if not the names must by no means be declared to them.
Then let him tell how he has inquired
in such and such a manner into the alleged enmity, and has not been able to find any testimony of fact. But he shall add that, if they please, one of two courses shall be pursued. Either they shall decide then and there in consultation whether the evidence of any of the witnesses shall be rejected on the grounds of mortal personal enmity; or let them choose three or four or five persons who have most knowledge in that town or village of any friendship or enmity between the accused and the informer, who are not present at the consultation, and let them be informed of the names only of the accused and the witness, but not of the information which has been deposed, and let the whole question be left to their judgement. If they follow the former of these courses, they cannot very well reject any witness, since the Judge has already used his own methods of investigation; but by the second course he protects himself perfectly, and clears himself of all ugly suspicions. And he ought to observe this last method when the accused has been taken in a foreign town or country. These methods will suffice for examining the question of personal enmity.
PART III, SECOND HEAD, QUESTION XIII.
The next action of the Judge is quite clear. For common justice demands that a witch should not be condemned to death unless she is convicted by her own confession. But here we are considering the case of one who is judged to be taken in manifest heresy for one of the other two reasons set down in the First Question, namely, direct or indirect evidence of the fact, or the legitimate production of witnesses; and in this case she is to be exposed to questions and torture to extort a confession of her crimes.
The Malleus Maleficarum Page 55