PART III., SECOND HEAD, QUESTIONS IX - X - XIWhat is to be done after the Arrest, and whether the Names of the Witnesses
should be made Known to the Accused. This is the Fourth Action
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.What Kind of Defence may be Allowed, and of the Appointment of an Advocate.
This is the Fifth Action
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.
Consequently 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.
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.What Course the Advocate should Adopt when the Names of the Witnesses are
not Revealed to him. Ths Sixth Action
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.
INDEX
