PART III., THIRD HEAD, QUESTIONS XVIII - XIX - XX - XXIOf the Manner of Pronouncing a Sentence which is Final and Definitive
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 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.Of the Various Degrees of Overt Suspicion which render the Accused liable
to be Sentenced
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.
Henry of Segusio agrees with this
in his Summa; de Praesumptione, where he says: It is to be noted that
although a heretic be convicted by a slight argument of that matter of which
he is suspected, he is not on that account to be considered a heretic; and
he proves it by the above reasoning.
The second or grave suspicion is
in law called grave or vehement, and of this the above Canon (Accusatus)
again says: One who is accused or suspected of heresy, against whom a grave
or vehement suspicion of this crime has arisen, etc. And it goes on: And
these are not two kinds but the same kind of suspicion. Giovanni d’Andrea
also says: Vehement is the same as strong, as the Archdeacon says speaking
of this Canon. Also Bernardus Papiensis and Huguccio say that vehement is
the same as strong or great. S. Gregory also, in the First Book of his Morals
says: A vehement wind sprang up. Therefore we say that anyone has a vehement
case when he has a strong one. So much for this.
Therefore a great suspicion is
called vehement or strong; and it is so called because it is dispelled only
by a vehement and strong defence, and because it arises from great, vehement,
and strong conjectures, arguments, and evidence. As, to take an example of
simple heresy, when people are found to shelter known heretics, and show
favour to them, or visit and associate with them and give gifts to them,
receive them into their houses and protect them, and such like: such people
are vehemently suspected of heresy. And similarly in the heresy of witches,
they are brought under suspicion when they share in the crimes of witches.
And here are especially to be
noted those men or women who cherish some inordinate love or excessive
hatred, even if they do not use to work any harm against men or animals in
other ways. For, as we have said, those who behave in this way in any heresy
are strongly to be suspected. And this is shown by the Canon where it says
that there is no doubt that such persons act in this way out of some
heretical sympathy.
The third and greatest suspicion
is in law called grave or violent: for the Canon and the glosses of the
Archdeacon and Giovanni d’Andrea explain that the vehement does not
mean the same as the violent. And of this suspicion the Canon says (dist.
34): This presumption or suspicion is called violent because it violently
constrains and compels a Judge to believe it, and cannot be cast off by any
evasion; and also because it arises from violent and convincing conjectures.
For example, in simple heresy, if
persons are found to show a reverent love for heretics, to receive
consolation or communion from them, or perpetrate any other such matter in
accordance with their rites and ceremonies: such persons would fall under
and be convicted of a violent suspicion of heresy and heretical beliefs. (See
many chapters on this subject in Book VI of the Canon.) For there is no
doubt that such persons act in this way out of a belief in some heresy.
It is the same, as regards the
heresy of witches, with those who perform and persist in performing any of
the actions which pertain to the rites of witches. Now these are of various
kinds. Sometimes it is only some threatening speech, such as “You shall
soon feel what will happen to you,” or something similar. Sometimes it is
a touch, just laying their hands curiously on a man or a beast. Sometimes it
is only a matter of being seen, when they show themselves by day or by night
to others who are sleeping in their beds; and this they do when they wish to
bewitch men or beasts. But for raising hailstorms they observe various other
methods and ceremonies, and perform various ritual actions round about a
river, as we have shown before where we discussed the manner and methods of
working witchcraft. When such are found and are publicly notorious they are
convicted of a violent suspicion of the heresy of witchcraft; especially
when some effect of witchcraft has followed upon their actions, either
immediately or after some interval. For then there is direct evidence when
any instruments of witchcraft are found hidden in some place. And although
when some interval of time has elapsed the evidence of the fact is not so
strong, such a person still remains under strong suspicion of witchcraft,
and therefore much more of simple heresy.
And if it be asked whether the
devil cannot inflict injury upon men and beasts without the means of a woman
being seen in a vision or by her touch, we answer that he can, when God
permits it. But the permission of God is more readily granted in the case of
a creature that was dedicated to God, but by denying the faith has consented
to other horrible crimes; and therefore the devil more often uses such means
to harm creatures. Further, we may say that, although the devil can work
without a witch, he yet very much prefers to work with one, for the many
reasons which we showed earlier in this work.
To sum up our conclusions on this
matter, it is to be said that, following the above distinctions, those who
are suspected of the heresy of witchcraft are separated into three
categories, since some are lightly, some strongly, and some gravely
suspected. And they are lightly suspected who act in such a way as to give
rise to a small or light suspicion against hem of this heresy. And although,
as has been said, a person who is found to be suspected in this way is not
to be branded as a heretic, yet he must undergo a canonical purgation, or he
must be caused to pronounce a solemn abjuration as in the case of one
convicted of a slight heresy.
For the Canon (cap. excommunicamus)
says: Those who have been found to rest under a probable suspicion (that is,
says Henry of Segusio, a light suspicion), unless, having respect to the
nature of the suspicion and the quality of their persons, they should prove
their innocent by a fitting purgation, they are to be stricken with the
sword of anathema as a worthy satisfaction in the sight of all men. And if
they continue obstinate in their excommunication for the period of a year,
they are to utterly condemned as heretics.
And note that, in the purgation
imposed upon them, whether or not they consent to it, and whether or not
they fail in it, they are throughout to be judged as reputed heretics on
whom a canonical purgation is to be imposed.
And that a person under this
light suspicion can and should be caused to pronounce a solemn abjuration is
shown in the chapter Accusatus, where it says: A person accused or
suspected of heresy, against whom there is a strong suspicion of this crime,
if he abjures the heresy before the Judge and afterwards commits it, then,
by a sort of legal fiction, he shall be judged to have relapsed into heresy,
although the heresy was not proved against him before his abjuration. But if
the suspicion was in the first place a small or light one, although such a
relapse renders the accused liable to severe punishment, yet he is not to
suffer the punishment of those who relapse into heresy.
But those who are strongly
suspected, that is, those who have acted in such a way as to engender a
great and strong suspicion; even those are not necessarily heretics or to be
condemned as such. For it is expressly stated in the Canon that no one is to
be condemned of so great a crime by reason of a strong suspicion. And it
says:
Therefore we order that, when the
accused is only under suspicion, even if it be a strong one, we do not wish
him to be condemned of so grave a crime; but such a one so strongly
suspected must be commanded to abjure all heresy in general, and in
particular that of which he is strongly suspected.
But if he afterwards relapses
either into his former heresy or into any other, or if he associates with
those whom he knows to be witches or heretics, or visits them, receives,
consults with, forgives, or favours them, he shall not escape the punishment
of backsliders, according to the chapter Accusatus. For it says there:
He who has been involved in one kind or sect of heresy, or has erred in one
article of the faith or sacrament of the Church, and has afterwards
specifically and generally abjured his heresy: if thereafter he follows
another kind or sect of heresy, or errs in another article or sacrament of
the Church, it is our will that he be judged a backslider. He, therefore,
who is known to have lapsed into heresy before his abjuration, if after his
abjuration he receives heretics, visits them, gives or sends them presents
or gifts, or shows favour to them, etc., he is worthily and truly to judged
a backslider; for by this proof there is no doubt that he was in the first
place guilty. Such is the tenor of the Canon.
From these words it is clear that
there are three cases in which a person under strong suspicion of heresy
shall, after his abjuration, be punished as a backslider. The first is when
he falls back into the same heresy of which he was strongly suspected. The
second is when he has abjured al heresy in general, and yet lapses into
another heresy, even if he has never before been suspected or accused of
that heresy. The third is when he receives and shows favour to heretics. And
this last comprises and embraces many cases.
But it is asked what should be
done when a person who has fallen under so strong a suspicion steadily
refuses to comply with his Judge’s order to abjure his heresy: is he to be
at once handed over to the secular Court to be punished? We answer that by
no means must this be done; for the Canon (ad abolendam) expressly
speaks, not of suspects, but of those who are manifestly taken in heresy.
And more rigorous action is to be employed against those who are manifestly
taken than against those who are only suspected.
And if it is asked, How then is
such a one to be proceeded against? We answer that the Judge must proceed
against him in accordance with the chapter excommunicamus, and he
must be excommunicated. And if he continues obstinate after a year’s
excommunication, he is to be condemned as a heretic.
There are others again who are
violently or gravely suspected, whose actions give rise to a violent
suspicion against them; and such a one is to be considered as a heretic, and
throughout he is to be treated as if he were taken in heresy, in accordance
with the Canon Law. For these either confess their crime or not; and if they
do, and wish to return to the faith and abjure their heresy, they are to be
received back into penitence. But if they refuse to abjure, they are to be
handed over to the secular Court for punishment.
But if he does not confess his
crime after he has been convicted, and does not consent to abjure his heresy,
he is to be condemned as an impenitent heretic. For a violent suspicion is
sufficient to warrant a conviction, and admits no proof to the contrary.
Now this discussion deals with
simple heresy, where there is no direct or indirect evidence of the fact, as
will be shown in the sixth method of passing sentence, where a man is to be
condemned as a heretic even though he may not actually be one: then how much
more is it applicable to the heresy of witches, where there is always in
addition either the direct evidence of bewitched children, men, or animals,
or the indirect evidence of instruments of witchcraft which have been found.
And although in the case of
simple heresy those who are penitent and abjure are, as has been said,
admitted to penitence and imprisonment for life; yet in this heresy,
although the ecclesiastic Judge may receive the prisoner into penitence, yet
the civil Judge can, because of her temporal injuries, that is to say, the
harms she has done to men, cattle, and goods, punish her with death; nor can
the ecclesiastic Judge prevent this, for even if he does not hand her over
to be punished, yet he is compelled to deliver her up at the request of the
civil Judge.
PART III., THIRD HEAD, QUESTION XX.Of the First Method of Pronouncing Sentence
SINCE, therefore, the accused
is either found innocent and is to be altogether absolved, or is found
only to be generally defamed as a heretic, or is found a proper subject
for the questions and the torture on account of her reputation, or is
found to be lightly suspected of heresy, or is found to be strongly or
gravely suspected of heresy, or is found to be at the same time commonly
defamed and suspected of heresy, or is found to have confessed her heresy
and to be penitent but probably to have relapsed, or is found to have
confessed her heresy and to be impenitent but not really to have relapsed,
or is found to have confessed but by legitimate witnesses and otherwise
legally to have been convicted of heresy, or is found to have been
convicted of heresy but to have escaped or defiantly absented herself, or
is found not to have done injury by witchcraft but to have removed
bewitchments unfittingly and by unlawful means, or is found to be an
archer-wizard or enchanter of weapons with the purpose of causing death,
or is found to be a witch-midwife offerings infants to the devil in the
manner of an enemy, or is found to make frivolous and fraudulent appeals
with a view to saving her life:
Therefore, if she is found to
be entirely innocent, the final sentence shall be pronounced in the
following manner:
Here it is to be noted that the
accused is found to be entirely innocent when, after the facts of the
process have been diligently discussed in consultation with skilled
lawyers, she cannot be convicted either by her own confession, or by the
evidence of the fact, or by the production of legitimate witnesses (since
they have disagreed upon the main issue); and when the accused has never
before been suspected of or publicly defamed as regards that crime (but
the case is different if she has been defamed as regards some other
crime); and when there is no evidence of the fact against her. In such a
case the following procedure is observed; for she is to be absolved by the
Bishop or Judge by a sentence to the following effect:
We N., by the mercy of God
Bishop of such a town (or Judge, etc.), considering that you N. of such a
place and such a Diocese have been accused before us of the crime of
heresy and namely of witchcraft; and considering that this accusation was
such as we could not pass over with connivent eyes, have condescended to
inquire whether the aforesaid accusation can be substantiated as true, by
calling witnesses, by examining you, and by using other means which are
fitting according to the canonical sanctions. Wherefore having diligently
seen and examined all that has been done and said in this case, and having
had the counsel of learned lawyers and Theologians, and having repeatedly
examined and inquired into all; sitting as Judges on this tribunal and
having only God before our eyes and the truth of the case, and the Holy
Gospels being placed before us that our judgement may proceed from the
countenance of God and our eyes behold equity, we proceed to our
definitive sentence in this way, invoking the name of Christ. Since by
that which we have seen and heard, and has been produced, offered, done,
and executed before us in this present case, we have not found that
anything has legally been proved against you of those things of which you
were accused before us, we pronounce, declare, and give it as our final
sentence that no act has legally been proved to us against you by which
you can or ought to be judged a heretic or witch of heresy. Wherefore by
this present declaration, inquiry, and judgement, we freely discharge you.
This sentence was given, etc.
Let care be taken not to put
anywhere in the sentence that the accused is innocent or immune, but that
it was not legally proved against him; for if after a little time he
should again be brought to trial, and it should be legally proved, he can,
notwithstanding the previous sentence of absolution, then be condemned.
Note also that the same method
of absolution may be used in the case of one who is accused of receiving,
protecting, or otherwise comforting and favouring heretics, when nothing
is legally proved against him.
A secular Judge commissioned by
the Bishop shall use his own manner of pronouncement.
PART III., THIRD HEAD, QUESTION XXI.Of the Second Method of Pronouncing Sentence, when the Accused is no
more than Defamed
THE second method of
delivering judgement is to be employed when he or she who is accused,
after a diligent discussion of the merits of the case in consultation
with learned lawyers, is found to be no more than defamed as a heretic
in some village, town, or province. And this is when the accused does
not stand convicted either by her own confession, or by the evidence of
the facts, or by the legitimate production of witnesses; nor has there
been anything proved against her except that she is the subject of
common aspersion: so that no particular act of witchcraft can be proved
by which she can be brought under strong or grave suspicion, as that she
has uttered threatening words, for example, “You will soon feel what
will happen to you,” or something to that effect, and afterwards some
injury has befallen the person or the cattle of the man she threatened.
The following procedure,
therefore, is to be employed in the case of such a one against whom
nothing has been proved except public obloquy. In this case judgement
cannot be delivered for the accused, nor can she be absolved as in the
first method; but a canonical purgation must be imposed upon her.
Therefore let the Bishop or his deputy, or the Judge, first take note
that, in a case of heresy, it is not necessary that a person should be
defamed only by good and respected people; for the calumniation uttered
by common and simple folk carries equal weight.
And the reason for this is,
that the same persons who are admitted as accusers in a case of heresy
are also admitted as detractors. Now any heretic can be accused by
anybody, except his mortal enemies; therefore he can also be defamed by
anybody.
Therefore let the Bishop or
Judge pronounce his sentence of canonical purgation in this or some
similar manner:
We N., by the mercy of God
Bishop of such a city, or Judge of such a county, having diligently
examined the merits of the process conducted by us against you N. of
such a Diocese accused before us of the crime of heresy, etc. We have
not found that you have confessed to or have been convicted of the
aforesaid sin or that you are even lightly suspected of it, except that
we find that truly and legitimately you are publicly defamed by both
good and bad in such a village, town, or Diocese; and that you may be in
good odour among the company of the faithful we impose upon you as by
law a canonical purgation, assigning to you such a day of such a month
at such hour of the day, upon which you shall appear in person before us
with so many persons of equal station with you to purge you of your
defamation. Which sponsors must be men of the Catholic faith and of good
life who have known your habits and manner of living not only recently
but in time past. And we signify that, if you should fail in this
purgation, we shall hold you convicted, according to the canonical
sanctions.
Here it is to be considered
that, when a person is duly found to be publicly defamed of some heresy,
and nothing is proved against him except that defamation, a canonical
purgation shall be imposed upon him. That is, he must produce some
seven, ten, twenty, or thirty men, according to the extent to which he
has been defamed and the size and important of the place concerned, and
these must be men of his own station and condition. For example, if he
who is defamed is a religious, they must be religious; if he is a
secular, they must be seculars; if he be a solder, they must be soldiers
who purge him from the crime for which he is defamed. And these sponsors
must be men professing the Catholic faith and of good life, who have
known his habits and life both recently and for a long time.
But if he refuses this
purgation, he must be excommunicated; and if he remains obstinate in
that excommunication for a year, he is then to be condemned as a
heretic.
And if he accepts the
purgation and fails in it; that is, if he cannot find sponsors of the
number and quality desired; he shall be considered as convicted, and is
to be condemned as a heretic.
And it must here be remarked
that, when it is said that he must purge himself by means of so many men
of his own station in life, this is meant generically and not
specifically. Thus, if a Bishop is to be purged, it is not necessary
that all his sponsors should be Bishops; but Abbots and other religious
who are priests are admitted; and similarly in other cases.
And the defamed person shall
purge himself in the following manner. At the time assigned to him for
his canonical purgation, he shall appear in person with his sponsors
before the Bishop who is his Judge, in the place where he is known to be
defamed; and, placing his hand upon the Book of the Gospels set before
him, he shall say as follows:
I swear upon these four Holy
Gospels of God that I never held, believed or taught, neither do I hold
or believe such heresy (naming it) for which I am defamed.
That is to say, he shall deny
on oath whatever it is for which he is defamed.
After this, all his sponsors
shall place their hands on the Gospels; and each of them severally shall
say: And I swear upon this Holy Gospel of God that I believe him to have
sworn the truth. And then he is canonically purged.
It is also to be noted that a
person defamed of heresy is to be purged in the place where he is known
to be defamed. And if he has been defamed in many places, he must be
required to profess the Catholic faith and deny the heresy in all the
places in which he is known as defamed.
And let not such a person
hold in light esteem this canonical purgation. For it is provided by the
Canon Law that, if he afterwards falls into the heresy of which he has
been purged, he is to be handed over as a backslider to the secular
Court. But the case is somewhat different if he falls into some other
heresy, of which he has not before been purged.
INDEX
