The Malleus Maleficarum
Page 58
It yet remains to show how the Judge is to proceed in pronouncing sentence in a case where all these means have failed, or what is further to be done even when she has confessed her crimes, that the whole process may be brought to an end; and we shall complete this Last Part of this work with a consideration of these matters.
PART III, THIRD HEAD, QUESTION XVII.
The question is now asked whether the secular judge may allow a witch to be submitted to a common purgation (concerning which see the Canon 2, q. 4, consuluisti, and cap. monomachiam), in the manner in which a civil defendant is allowed the trial by ordeal, as, for example, that by red-hot iron. And it may seem that he may do so.
For trial by combat is allowable in a criminal case for the protection of life, and in a civil case for the protection of property; then wherefore not the trial by red-hot iron or boiling water? S. Thomas allows that the former is permissible in some cases, when he says in the last article of the Second of the Second, q. 95, that a duel is lawful when it appears to be consonant with commonsense. Therefore the trial by red-hot iron should also be lawful in some cases.
Also it has been used by many Princes of saintly life who have availed themselves of the advice and counsel of good men; as, for example, the Sainted Emperor Henry in the case of the virgin Cunegond whom he had married, who was suspected of adultery.
Again, a judge, who is responsible for the safety of the community, may lawfully allow a smaller evil that a greater may be avoided; as he allows the existence of harlots in towns in order to avoid a general confusion of lust. For S. Augustine On Free Will says: Take away the harlots, and you will create a general chaos and confusion of lust. So, when a person has been loaded with insults and injuries by any community, he can clear himself of any criminal or civil charge by means of a trial by ordeal.
Also, since less hurt is caused to the hands by the red-hot iron than is the loss of life in a duel, if a duel is permitted where such things are customary, much more should the trial by red-hot iron be allowed.
But the contrary view is argued where it says (2, q. 5, monomachiam) that they who practice such and similar things appear to be tempting God. And here the Doctors affirm it must be noted that, according to S. Paul (I. Thessalonians v), we must abstain, not only from evil, but from all appearance of evil. Therefore the Canon says in that chapter, not that they who use such practices tempt God, but that they appear to tempt Him, so that it may be understood that, even if a man engage in such a trial with none but good intentions, yet since it has the appearance of evil, it is to be avoided.
I answer that such tests or trials are unlawful for two reasons. First, because their purpose is to judge of hidden matters of which it belongs only to God to judge. Secondly, because there is no Divine authority for such trials, nor are they anywhere sanctioned in the writings of the Holy Fathers. And it says in the chapter consuluisti, 2, q. 5: That which is not sanctioned in the writings of the Sainted Fathers is to be presumed superstitious. And Pope Stephen in the same chapter says: It is left to your judgement to try prisoners who are convicted by their own confession or the proofs of the evidence; but leave that which is hidden and unknown to Him Who alone knows the hearts of men.
There is, nevertheless, a difference between a duel and the trial by red-hot iron or boiling water. For a duel appears to be more humanly reasonable, the combatants being of similar strength and skill, than a trial by red-hot iron. For although the purpose of both is to search out something hidden by means of a human act; yet in the case of trial by red-hot iron a miraculous effect is looked for, whereas this is not so in the case of a duel, in which all that can happen is the death of either, or both, of the combatants. Therefore the trial by red-hot iron is altogether unlawful; though a duel is not illegal to the same extent. So much has been incidentally admitted in respect of duels, on account of Princes and secular Judges.
It is to be noted that, because of those words of S. Thomas which make the above distinction, Nicolas of Lyra, in his Commentary on the duel or combat between David and Goliath, I. Regum xvii, tried to prove that in some cases a duel is lawful. But Paul of Burgos proves that not this, but rather the opposite was the meaning of S. Thomas; and all Princes and secular Judges ought to pay particular attention to his proof.
His first point is that a duel, like the other trial by ordeal, has as its purpose the judgement of something hidden, which ought to be left to the judgement of God, as we have said. And it cannot be said that this combat of David is an authority for duelling; for it was revealed to him by the Lord through some inner instinct that he must engage in that combat and avenge upon the Philistine the injuries done against God, as is proved by David's words: I come against thee in the name of the living God. So he was not properly speaking a duellist, but he was an executor of Divine justice.
His second point is that Judges must especially note that in a duel power, or at least licence, is given to each of the parties to kill the other. But since one of them is innocent, that power of licence is given for the killing of an innocent man; and this is unlawful, as being contrary to the dictates of natural law and to the teaching of God. Therefore, a duel is altogether unlawful, not only on the part of the appellant and the respondent, but also on the part of the Judge and his advisers, who are all equally to be considered homicides or parties to manslaughter.
Thirdly, he points out that a duel is a single combat between two men, the purpose of which is that the justice of the case should be made clear by the victory of one party, as if by Divine judgement, notwithstanding the fact that one of the parties is fighting in an unjust cause; and in this way God is tempted. Therefore it is unlawful on the part both of the appellant and the respondent. But considering the fact that the judges have other means of arriving at an equitable and just termination of the dispute, when they do not use such means, but advise or even permit a duel when they could forbid it, they are consenting to the death of an innocent person.
But since it is unlikely that Nicolas the Commentator was unaware or ignorant of the above reasoning, it is concluded that, when he says that in some cases a duel can be fought without mortal sin, he is speaking on the part of the Judges or advisers, namely, in a case when such a trial is undertaken, not on their responsibility or advice, but purely on that of the appellant and respondent themselves.
But since it is not our purpose to linger over and debate such considerations, but to return to the question of witches, it is clear that, if this sort of trial is forbidden in the case of other criminal causes, such as theft or robbery, still more must it be forbidden in the case of witches who, it is agreed, obtain all their power from the devil, whether it be for causing or curing an injury, for removing or for preventing an effect of witchcraft.
And it is not wonderful witches are able to undergo this trial by ordeal unscathed with the help of devils; for we learn from naturalists that if the hands be anointed with the juice of a certain herb they are protected from burning. Now the devil has an exact knowledge of the virtues of such herbs: therefore, although he can cause the hand of the accused to be protected from the red-hot iron by invisibly interposing some other substance, yet he can procure the same effect by the use of natural objects. Hence even less that other criminals ought witches to be allowed this trial by ordeal, because their intimate familiarity with the devil; and from the very fact of their appealing to this trial they are to be held as suspected witches.
An incident illustrative of our argument occurred hardly three years ago in the Diocese of Constance. For in the territory of the Counts of Fuerstenberg and the Black Forest there was a notorious witch who had been the subject of much public complaint. At last, as the result of a general demand, she was seized by the Count and accused of various evil works of witchcraft. When she was being tortured and questioned, wishing to escape from their hands, she appealed to the trial by red-hot iron; and the Count, being you and inexperienced, allowed it. And she then carried the red-hot iron not only for the stipulated three pa
ces, but for six, and offered to carry it even farther. Then, although they ought to have taken this as manifest proof that she was a witch (since one of the Saints dared to tempt the help of God in this manner), she was released from her chains and lives to the present time, not without grave scandal to the Faith in those parts.
PART III, THIRD HEAD, QUESTION XIII.
IN proceeding to treat of those cases in which the secular Judge by himself can arrive at a judgement and pronounce a sentence without the co-operation of the Diocesan and Ordinaries, we necessarily presuppose that not only is it consistent with the protection of the faith and of justice that we Inquisitors should be relieved of the duty of passing sentence in these cases, but in the same sincerity of spirit we endeavour to relieve the Diocesans also from that duty; not in any desire to detract from their authority and jurisdiction, for if they should elect to exercise their authority in such matters, it would follow that we Inquisitors must also concur in it.
It must be remembered, also, that this crime of witches is not purely ecclesiastic; therefore the temporal potentates and Lords are not debarred from trying and judging it. At the same time was shall show that in some cases they must not arrive at a definitive judgement without the authorisation of the Diocesans.
But first we must consider the sentence itself: secondly, the nature of its pronouncement; and thirdly, in how many ways it is to be pronounced.
With regard to the first of these questions, S. Augustine says that we must not pronounce sentence against any person unless he has been proved guilty, or has confessed. Now there are three kinds of sentence - interlocutory, definitive, and preceptive. These are explained as follows by S. Raymond. An interlocutory sentence is one which is given not on the main issue of the case, but on some other side issues which emerge during the hearing of a case; such as a decision whether or not a witness is to be disallowed, or whether some digression is to be admitted, and such matters as that. Or it may perhaps be called interlocutory because it is delivered simply by word of mouth without the formality of putting it into writing.
A definitive sentence is one which pronounces a final decision as to the main issue of the case.
A preceptive sentence is one which is pronounced by a lower authority on the instruction of a higher. But we shall be concerned with the first two of these, and especially with the definitive sentence.
Now it is laid down by law that a definitive sentence which has been arrived at without a due observance of the proper legal procedure in trying a case is null and void in law; and the legal conduct of a case consists in two things. One concerns the basis of the judgement; for there must be a due provision for the hearing of arguments both for the prosecution and the defence, and a sentence arrived at without such a hearing cannot stand. The other is not concerned with the basis of the judgement, but provides that the sentence must not be conditional; for example, a claim for possession should not be decided conditionally upon some subsequent claim of property; but where there is no question of such an objection the sentence shall stand.
But in the case we are considering, which is a process on behalf of the faith against a charge of heresy (though the charge is a mixed one), the procedure is straighforward and summary. That is to say, the Judge need not require a writ, or demand that the case should be contested. But he must allow opportunity for the necessary proofs, and issue his citation, and exact the protestation of the oath concerning calumny, etc. Therefore there has lately been a new law made as to the method of procedure in such cases.
To proceed to our second consideration, namely, of the nature of the pronouncement of the sentence, it must be noted that it should be pronounced by the Judge and no one else, otherwise it is not valid. Also the Judge must be sitting in a public and honourable place; and he must pronounce it in the day-time and not in the darkness; and there are other conditions to be observed; for example, the sentence must not be promulgated upon a Holy Day, nor yet merely delivered in writing.
Yet it is to be noted that since, as we have said, this case is conducted in a simple and summary manner, it may lawfully be conducted on Holy Days for the sake of the convenience of the public, and the Judge may cut short any digressions. Therefore the Judge may, if he pleases, act in such a manner, and even pass sentence without putting it in writing. For we are authoritatively informed that there are cases in which a sentence is valid without its being put into writing, as, for example, when such is the custom of any particular locality or Court. Also there is excellent precedent for a Bishop, when he is the Judge, allowing the sentence to be pronounced by some other person.
Note again that, although in criminal actions the execution of the sentence is not to be delayed, this rule does not hold good in four cases, with two of which we are here concerned. First, when the prisoner is a pregnant woman; and then the sentence shall be delayed until she has given birth. Secondly, when the prisoner has confessed her crime, but has afterwards denied it again: that is to say, when the way which we explained in the Fourteenth Question.
Now before we proceed to our third consideration, namely, the different methods of passing sentence which we shall proceed to treat of up to the end of this work, we must first make some remarks about the various ways in which a prisoner is rendered suspect, from which the various methods of passing sentence follow as a consequence.
PART III, THIRD HEAD, QUESTION XIX.
BOTH the old and the new legislature provide an answer to the question as to in how many and what ways a person can be held suspect of heresy or any other crime, and whether they can be judged and sentenced by reason of such suspicions. For the gloss on the chapter nos in quemquam, which we quoted in the last Question, says that there are four means of convicting a prisoner: either by the depositions of witnesses in Court, or by the evidence of the facts, or by reason of previous convictions against the prisoner, or because of a grave suspicion.
And the Canonists note that suspicion is of three kinds. The first of which the Canon says, You shall not judge anyone because he is suspect in your own opinion. The second is Probably; and this, but not the first, leads to a purgation. The third is Grave, and leads to a conviction; and S. Jerome understands this kind of suspicion when he says that a wife may be divorced either for fornication or for a reasonably suspected fornication.
It must further be noted that the second, or highly probable and circumstantial, suspicion is admitted as a kind of half-proof; that is to say, it helps to substantiate other proofs. Therefore it can also lead to a judgement, and not only to a purgation. And as for the grave suspicion, which suffices for a conviction, note that it is of two kinds. One is of the law and by the law, as when the law fixes and determines some point against which no proof can be admitted. For example, if a man has given a woman a promise of matrimony, and copulation has ensued, then matrimony is presumed, and no proof to the contrary is admitted. The second is of the law but not by the law, as where the law presumes but does not determine a fact. For example, if a man has lived for a long time with a woman, she is presumed to have had connexion with him; but against this proofs are admitted.
Applying this to our discussion of the heresy of witches and to the modern laws, we say that in law there are three degrees of suspicion in the matter of heresy: the first slight, the second great, and the third very great.
The first is in law called a light suspicion. Of this it is said in the chapter Accusatus, de Haeret. Lib. 6: If the accused has incurred only a light and small suspicion, and if she should again fall under that suspicion, although she is to be severely punished for this, she ought not to suffer the punishment of those who have relapsed into heresy. And this suspicion is called small or light, both because it can be removed by a small and light defence, and because it arises from small and light conjectures. Therefore it is called small, because of the small proofs of it; and light, because of the light conjectures.
As an example of simple heresy, if people are found to be meeting together secretly for the purpose
of worship, or differing in their manner of life and behaviour from the usual habits of the faithful; or if they meet together in sheds and barns, or at the more Holy Seasons in the remoter fields or woods, by day or by night, or are in any way found to separate themselves and not to attend Mass at the usual times or in the usual manner, or form secret friendships with suspected witches: such people incur at least a light suspicion of heresy, because it is proved that heretics often act in this manner. And of this light suspicion the Canon says: They who are by a slight argument discovered to have deviated from the teaching and path of the Catholic religion are not to be classed as heretics, nor is a sentence to be pronounced against them.