PART III., SECOND HEAD, QUESTIONS XII - XIII - XIVOf the Same Matter, Declaring more Particularly how the Question of Personal
Enmity is to be Investigated. The Seventh Action
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.Of the Points to be Observed by the Judge before the Formal Examination in
the Place of Detention and Torture. This is the Eighth Action
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.
And to make the matter clear we
will quote a case which occurred at Spires and came to the knowledge of many.
A certain honest man was bargaining with a woman, and would not come to
terms with her about the price of some article; so she angrily called after
him, "You will soon wish you had agreed." For witches generally
use this manner of speaking, or something like it, when they wish to bewitch
a person by looking at him. Then he, not unreasonably being angry with her,
looked over his shoulder to see with what intention she had uttered those
words; and behold! he was suddenly bewitched so that his mouth was stretched
sideways as far as his ears in a horrible deformity, and he could not draw
it back, but remained so deformed for a long time.
We put this case that this was
submitted to the Judge as direct evidence of the fact; and it is asked
whether the woman is to be considered as manifestly taken in the heresy of
witchcraft. This should be answered from the words of S. Bernard which we
have quoted above. For there are three ways in which a person may be judged
to be so taken, and they not so closely conjoined as though it were
necessary for all three to agree in one conclusion, but each one by itself,
namely, the evidence of the fact, or the legitimate production of witnesses,
or her own confession, is sufficient to prove a witch to be manifestly taken
in that heresy.
But indirect evidence of the fact
is different from direct evidence; yet thought it is not so conclusive, it
is still taken from the words and deeds of witches, as was shown in the
Seventh Question, and it is judged from witchcraft which is not so immediate
in its effect, but follows after some lapse of time from the utterance of
the threatening words. Wherefore may we conclude that this is the case with
such witches who have been accused and have not made good their defence (or
have failed to defend themselves because this privilege was not granted them;
and it was not granted because they did not ask for it). But what we are to
consider now is what action the Judge should take, and how he should proceed
to question the accused with a view to extorting the truth from her so that
sentence of death may finally be passed upon her.
And here, because of the great
trouble caused by the stubborn silence of witches, there are several points
which the Judge must notice, and these are dealt with under their several
heads.
And the first is that he must not
be too quick to subject a witch to examination, but must pay attention to
certain signs which will follow. And he must not be too quick for this
reason: unless God, through a holy Angel, compels the devil to withhold his
help from the witch, she will be so insensible to the pains of torture that
she will sooner be torn limb from limb than confess any of the truth.
But the torture is not to be
neglected for this reason, for they are not all equally endowed with this
power, and also the devil sometimes of his own will permits them to confess
their crimes without being compelled by a holy Angel. And for the
understanding of this the reader is referred to that which is written in the
Second Part of this work concerning the homage which they offer to the devil.
For there are some who obtain
from the devil a respite of six or eight or ten years before they have to
offer him their homage, that is, devote themselves to him body and soul;
whereas others, when they first profess their abjuration of the faith, at
the same time offer their homage. And the reason why the devil allows that
stipulated interval of time is that, during that time, he may find out
whether the witch has denied the faith with her lips only but not in her
heart, and would therefore offer him her homage in the same way.
For the devil cannot know the
inner thoughts of the heart except conjecturally from outward indications,
as we showed in the First Part of this work where we dealt with the question
whether devils can turn the minds of men to hatred or love. And many have
been found who, driven by some necessity or poverty, have been induced by
other witches, in the hope of ultimate forgiveness in confession, to become
either total or partial apostates from the faith. And it is such whom the
devil deserts without any compulsion by a holy Angel; and therefore they
readily confess their crimes, whereas others, who have from their hearts
bound themselves to the devil, are protected by his power and preserve a
stubborn silence.
And this provides a clear answer
to the question how it comes about that some witches readily confess, and
others will by no means do so. For in the case of the former, when the devil
is not compelled by God, he still deserts them of his own will, in order
that by temporal unhappiness and a horrible death he may lead to despair
those over whose hearts he could never obtain the mastery. For it is evident
from their sacramental confessions that they have never voluntarily obeyed
the devil, but have been compelled by him to work witchcraft.
And some also are distinguished
by the fact that, after they have admitted their crimes, they try to commit
suicide by strangling or hanging themselves. And they are induced to do this
by the Enemy, lest they should obtain pardon from God through sacramental
confession. This chiefly happens in the case of those who have not been
willing agents of the devil; although it may also happen in the case of
willing agents, after they have confessed their crimes: but then it is
because the devil has been compelled to desert the witch.
In conclusion we may say that it
is as difficult, or more difficult, to compel a witch to tell the truth as
it is to exorcise a person possessed of the devil. Therefore the Judge ought
not to be too willing or ready to proceed to such examination, unless, as
has been said, the death penalty is involved. And in this case he must
exercise great care, as we shall show; and first we shall speak of the
method of sentencing a witch to such torture.
PART III., SECOND HEAD, QUESTION XIV.Of the Method of Sentencing the Accused to be Questioned: and How she
must be Questioned on the First Day; and Whether she may be Promised her
Life. The Ninth Action
SECONDLY, the Judge must take
care to frame his sentence in the following manner.
We, the Judge and assessors,
having attended to and considered the details of the process enacted by us
against you N. of such a place in such a Diocese, and having diligently
examined the whole matter, find that your are equivocal in your admissions;
as for example, when you say that you used such threats with no intention
of doing an injury, but nevertheless there are various proofs which are
sufficient warrant for exposing you to the question and torture. Wherefore,
that the truth may be known from your own mouth, and that henceforth you
may not offend the ears of the Judges, we declare, judge and sentence that
on this present day at such an hour you be placed under the question and
torture. This sentence was given, etc.
Alternatively, as has been said,
the Judge may not be willing to deliver the accused up to be questioned,
but may punish her with imprisonment with the following object in view.
Let him summon her friends and put it to the that she may escape the death
penalty, although she will be punished in another way, if she confesses
the truth, and urge them to try to persuade her to do so. For very often
meditation, and the misery of imprisonment, and the repeated advice of
honest men, dispose the accused to discover the truth.
And we have found that witches
have been so strengthened by this sort of advice that, as a sign of their
rebellion, they have spat on the ground as if it were in the devil's face,
saying, “Depart, cursed devil; I shall do what is just” and afterwards
they have confessed their crimes.
But if, after keeping the
accused in a state of suspense, and continually postponing the day of
examination, and frequently using verbal persuasions, the Judge should
truly believe that the accused is denying the truth, let them question her
lightly without shedding blood; knowing that such questioning is
fallacious and often, as has been said, ineffective.
And it should be begun in this
way. While the officers are preparing for the questioning, let the accused
be stripped; or if she is a woman, let her first be led to the penal cells
and there stripped by honest women of good reputation. And the reason for
this is that they should search for any instrument of witchcraft sewn into
her clothes; for they often make such instruments, at the instruction of
devils, out of the limbs of unbaptized children, the purpose being that
those children should be deprived of the beatific vision. And when such
instruments have been disposed of, the Judge shall use his own persuasions
and those of other honest men zealous for the faith to induce her to
confess the truth voluntarily; and if she will not, let him order the
officers to bind her with cords, and apply her to some engine of torture;
and then let them obey at once but not joyfully, rather appearing to be
disturbed by their duty. Then let her be released again at someone's
earnest request, and taken on one side, and let her again be persuaded;
and in persuading her, let her be told that she can escape the death
penalty.
Here it is asked whether, in
the case of a prisoner legally convicted by her general bad reputation, by
witnesses, and by the evidence of the fact, so that the only thing lacking
is a confession of the crime from her own mouth, the Judge can lawfully
promise her her life, whereas if she were to confess the crime she would
suffer the extreme penalty.
We answer that different people
have various opinions on this question. For some hold that if the accused
is of a notoriously bad reputation, and gravely suspected on unequivocal
evidence of the crime; and if she is herself a great source of danger, as
being the mistress of other witches, then she may be promised her life on
the following conditions; that she be sentenced to imprisonment for life
on bread and water, provided that she supply evidence which will lead to
the conviction of other witches. And she is not to be told, when she is
promised her life, that she is to be imprisoned in this way; but should be
led to suppose that some other penance, such as exile, will be imposed on
her as punishment. And without doubt notorious witches, especially such as
use witches' medicines and cure the bewitched by superstitious means,
should be kept in this way, both that they may help the bewitched, and
that they may betray other witches. But such a betrayal by them must not
be considered of itself sufficient ground for a conviction, since the
devil is a liar, unless it is also substantiated by the evidence of the
fact, and by witnesses.
Others think that, after she
has been consigned to prison in this way, the promise to spare her life
should be kept for a time, but that after a certain period she should be
burned.
A third opinion is that the
Judge may safely promise the accused her life, but in such a way that he
should afterwards disclaim the duty of passing sentence on her, deputing
another Judge in his place.
There seems to be some
advantage in pursuing the first of these courses on account of the benefit
which may accrue from it to those who are bewitched; yet it is not lawful
to use witchcraft to cure witchcraft, although (as was shown in the First
and Introductory Question to this Third Part) the general opinion is that
it is lawful to use vain and superstitious means to remove a spell. But
use and experience and the variety of such cases will be of more value to
Judges than any art or text-book; therefore this is a matter which should
be left to the Judges. But it has certainly been very often found by
experience that many would confess the truth if they were not held back by
the fear of death.
But if neither threats nor such
promises will induce her to confess the truth, then the officers must
proceed with the sentence, and she must by examined, not in any new or
exquisite manner, but in the usual way, lightly or heavily according as
the nature of her crimes demands. And while she is being questioned about
each several point, let her be often and frequently exposed to torture,
beginning with the more gentle of them; for the Judge should not be too
hasty to proceed to the graver kind. And while this is being done, let the
Notary write all down, how she is tortured and what questions are asked
and how she answers.
And note that, if she confesses
under torture, she should then be taken to another place and questioned
anew, so that she does not confess only under the stress of torture.
The next step of the Judge
should be that, if after being fittingly tortured she refuses to confess
the truth, he should have other engines of torture brought before her, and
tell her that she will have to endure these if she does not confess. If
then she is not induced by terror to confess, the torture must be
continued on the second or third day, but not repeated at that present
time unless there should be some fresh indication of its probable success.
Let the sentence be pronounced
in her presence in the following manner: We the aforesaid Judge, as above,
assign to you N. such a day for the continuation of your questioning, that
the truth may be heard from your own mouth. And the Notary shall write all
down in the process.
And during the interval before
that assigned time the Judge himself or other honest men shall do all in
their power to persuade her to confess the truth in the manner we have
said, giving her, if it seems expedient to them, a promise that her life
will be spared.
The Judge should also take care
that during that interval there should always be guards with her, so that
she is never left alone, for fear lest the devil will cause her to kill
herself. But the devil himself knows better than anyone can set down in
writing whether he will desert her of his own will, or be compelled to do
so by God.
INDEX
