PART III., FIRST HEAD, QUESTIONS III - IV - V - VIOf the Solemn Adjuration and Re-examination of Witnesses
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.Of the Quality and Condition of Witnesses
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.Whether Mortal Enemies may be Admitted as Witnesses
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.How the Trial is to be Proceeded with and Continued. And how the
Witnesses are to be Examined in the Presence of Four Other Persons, and
how the Accused is to be Questioned in Two Ways
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.
The witness N., of such a
place, was called, sworn, and questioned whether he knew N. (naming the
accused), and answered that he did. Asked how he knew him, he answered
that he had seen and spoken with him on several occasions, or that they
had been comrades (so explaining his reason for knowing him). Asked for
how long he had known him, he answered, for ten or for so many years.
Asked concerning his reputation, especially in matter concerning the
faith, he answered that in his morals he was a good (or bad) man, but
with regard to his faith, there was a report in such a place that he
used certain practices contrary to the Faith, as a witch. Asked what was
the report, he made answer. Asked whether he had seen or heard him doing
such things, he again answered accordingly. Asked where he had heard him
use such words, he answered, in such a place. Asked in whose presence,
he answered, in the presence of such and such.
Further, he was asked whether
any of the accused's kindred had formerly been burned as witches, or had
been suspected, and he answered. Asked whether he associated with
suspected witches, he answered. Asked concerning the manner and reason
of the accused's alleged words, he answered, for such a reason and in
such a manner. Asked whether he thought that the prisoner had used those
words carelessly, unmeaningly and thoughtlessly, or rather with
deliberate intention, he answered that he had used them jokingly or in
temper, or without meaning or believing what he said, or else with
deliberate intention.
Asked further how he could
distinguish the accused's motive, he answered that he knew it because he
had spoken with a laugh.
This is a matter which must
be inquired into very diligently; for very often people use words
quoting someone else, or merely in temper, or as a test of the opinions
of other people; although sometimes they are used assertively with
definite intention.
He was further asked whether
he made this deposition out of hatred or rancour, or whether he had
suppressed anything out of favour or love, and he answered, etc.
Following this, he as enjoined to preserve secrecy. This was done at
such a place on such a day in the presence of such witnesses called and
questioned, and of me the Notary or scribe.
Here it must always be noted
that in such an examination at least five persons must be present,
namely, the presiding Judge, the witness of informer, the respondent or
accused, who appears afterwards, and the third is the Notary or scribe:
where there is no Notary the scribe shall co-opt another honest man, and
these two, as has been said, shall perform the duties of the Notary; and
this is provided for by Apostolic authority, as was shown above, that in
this kind of action two honest men should perform as it were the duty of
witnesses of the depositions.
Also it must be noted that
when a witness is called he must also be sworn, that is, he must take
the oath in the manner we have shown; otherwise he would falsely be
described as called and sworn.
In the same way the other
witnesses are to be examined. And after this the Judge shall decide
whether the fact is fully proven; and if not fully, whether there are
great indications and strong suspicions of its truth. Observe that we do
not speak of a light suspicion, arising from slight conjectures, but of
a persistent report that the accused has worked witchcraft upon children
or animals, etc. Then, if the Judge fears the escape of the accused, he
shall cause him or her to be placed in custody; but if he does not fear
his escape, he shall have him called for examination. But whether or not
he places him in custody, he shall first cause his house to be searched
unexpectedly, and all chests to be opened and all boxes in the corners,
and all implements of witchcraft which are found to be taken away. And
having done this, the Judge shall compare together everything of which
he has been convicted or suspected by the evidence of witnesses, and
conduct an interrogatory on them, having with him a Notary, etc., as
above, and having caused the accused to swear by the four Gospels of God
to speak the truth concerning both himself and others. And they shall
all be written down in this following manner.
The General Examination of a Witch or Wizard: and it is the
First Action.
The accused N. of such a
place was sworn by personally touching the four Gospels of God to speak
the truth concerning both himself and others, and was then asked whence
he was and from where he originated. And he answered, from such a place
in such a Diocese. Asked who were his parents, and whether they were
alive or dead, he answered that they were alive in such a place, or dead
in such a place.
Asked whether they died a
natural death, or were burned, he answered in such a way. (Here note
that this question is put because, as was shown in the Second Part of
this work, witches generally offer or devote their own children to
devils, and commonly their whole progeny is infected; and when the
informer has deposed to this effect, and the witch herself has denied
it, it lays her open to suspicion).
Asked where he was brought
up, and where he chiefly lived, he answered, in such or such a place.
And if it appears that he has changed abode because, perhaps, his mother
or any of his kindred was not suspected, and had lived in foreign
districts, especially in such places as are most frequented by witches,
he shall be questioned accordingly.
Asked why he had moved from
his birthplace and gone to live in such or such a place, he answered,
for such a reason. Asked whether in those said places or elsewhere he
had heard any talk of witches, as, for example, the stirring up of
tempests, the bewitching of cattle, the depriving of cows of their milk,
or any such matter of which he was accused; if he should answer that he
had, he must be asked what he had heard, and all that he says must be
written down. But if he denies it, and says that he has heard nothing,
then he must be asked whether he believes that there are such things as
witches, and that such things as were mentioned could be done, as that
tempests could be raised or men and animals bewitched.
Not that for the most part
witches deny this at first; and therefore this engenders a greater
suspicion than if they were to answer that they left it to a superior
judgement to say whether there were such or not. So if they deny it,
they must be questioned as follows: Then are they innocently condemned
when they are burned? And he or she must answer.
The Particular Examination of the Same.
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 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 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.
INDEX
