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.

Question XV. Of the Continuing of the Torture, and of the Devices and Signs by which the Judge can Recognize a Witch; and how he ought to Protect himself from their Spells. Also how they are to be Shaved in Parts where they use to Conceal the Devil's Masks and Tokens; together with the due Setting Forth of Various Means of Overcoming the Obstinacy in Keeping Silence and Refusal to Confess. And it is the Tenth Action

THE Judge should act as follows in the continuation of the torture. First he should bear in mind that, just as the same medicine is not applicable to all the members, but there are various and distinct salves for each several member, so not all heretics or those accused of heresy are to be subjected to the same method of questioning, examination and torture as to the charges laid against them; but various and different means are to be employed according to their various natures and persons. Now a surgeon cuts off rotten limbs; and mangy sheep are isolated from the healthy; but a prudent Judge will not consider it safe to bind himself down to one invariable rule in his method of dealing with a prisoner who is endowed with a witch's power of taciturnity, and whose silence he is unable to overcome. For if the sons of darkness were to become accustomed to one general rule they would provide means of evading it as a well-known snare set for their destruction.

Therefore a prudent and zealous Judge should seize his opportunity and choose his method of conducting his examination according to the answers or depositions of the witnesses, or as his own previous experience or native wit indicates to him, using the following precautions.

If he wishes to find out whether she is endowed with a witch's power of preserving silence, let him take note whether she is able to shed tears when standing in his presence, or when being tortured. For we are taught both by the words of worthy men of old and by our own experience that this is a most certain sign, and it has been found that even if she be urged and exhorted by solemn conjurations to shed tears, if she be a witch she will not be able to weep: although she will assume a tearful aspect and smear her cheeks and eyes with spittle to make it appear that she is weeping; wherefore she must be closely watched by the attendants.

In passing sentence the Judge or priest may use some such method as the following in conjuring her to true tears if she be innocent, or in restraining false tears. Let him place his hand on the head of the accused and say: I conjure you by the bitter tears shed on the Cross by our Saviour the Lord JESUS Christ for the salvation of the world, and by the burning tears poured in the evening hour over His wounds by the most glorious Virgin MARY, His Mother, and by all the tears which have been shed here in this world by the Saints and Elect of God, from whose eyes He has now wiped away all tears, that if you be innocent you do now shed tears, but if you be guilty that you shall by no means do so. In the name of the Father, and of the Son, and of the Holy Ghost, Amen.

And it is found by experience that the more they are conjured the less are they able to weep, however hard they may try to do so, or smear their cheeks with spittle. Nevertheless it is possible that afterwards, in the absence of the Judge and not at the time or in the place of torture, they may be able to weep in the presence of their gaolers.

And as for the reason for a witch's inability to weep, it can be said that the grace of tears is one of the chief gifts allowed to the penitent; for S. Bernard tells us that the tears of the humble can penetrate to heaven and conquer the unconquerable. Therefore there can be no doubt that they are displeasing to the devil, and that he uses all his endeavour to restrain them, to prevent a witch from finally attaining to penitence.

But it may be objected that it might suit with the devil's cunning, with God's permission, to allow even a witch to weep; since tearful grieving, weaving and deceiving are said to be proper to women. We may answer that in this case, since the judgements of God are a mystery, if there is no other way of convicting the accused, by legitimate witnesses or the evidence of the fact, and if she is not under a strong or grave suspicion, she is to be discharged; but because she rests under a slight suspicion by reason of her reputation to which the witnesses have testified, she must be required to abjure the heresy of witchcraft, as we shall show when we deal with the second method of pronouncing sentence.

A second precaution is to be observed, not only at this point but during the whole process, by the Judge and all his assessors; namely, that they must not allow themselves to be touched physically by the witch, especially in any contract of their bare arms or hands; but they must always carry about them some salt consecrated on Palm Sunday and some Blessed Herbs. For these can be enclosed together in Blessed Wax and worn round the neck, as we showed in the Second Part when we discussed the remedies against illnesses and diseases caused by witchcraft; and that these have a wonderful protective virtue is known not only from the testimony of witches, but from the use and practice of the Church, which exorcizes and blesses such objects for this very purpose, as is shown in the ceremony of exorcism when it is said, For the banishing of all the power of the devil, etc.

But let it not be thought that physical contact of the joints or limbs is the only thing to be guarded against; for sometimes, with God's permission, they are able with the help of the devil to bewitch the Judge by the mere sound of the words which they utter, especially at the time when they are exposed to torture.

And we know from experience that some witches, when detained in prison, have importunately begged their gaolers to grant them this one thing, that they should be allowed to look at the Judge before he looks at them; and by so getting the first sight of the Judge they have been able so to alter the minds of the Judge or his assessors that they have lost all their anger against them and have not presumed to molest them in any way, but have allowed them to go free. He who knows and has experienced it gives this true testimony; and would that they were not able to effect such things!

Let judges not despise such precautions and protections, for by holding them in little account after such warning they run the risk of eternal damnation. For our Saviour said: If I had not come, and spoken to them, they would not have sin; but now they have no excuse for their sin. Therefore let the judges protect themselves in the above manner, according to the provisions of the Church.

And if it can conveniently be done, the witch should be led backward into the presence of the Judge and his assessors. And not only at the present point, but in all that has preceded or shall follow it, let him cross himself and approach her manfully, and with God's help the power of that old Serpent will be broken. And no one need think that it is superstitious to lead her in backwards; for, as we have often said, the Canonists allow even more than this to be done for the protections against witchcraft, and always say that it is lawful to oppose vanity with vanity.

The third precaution to be observed in this tenth action is that the hair should be shaved from every part of her body. The reason for this is the same as that for stripping her of her clothes, which we have already mentioned; for in order to preserve their power of silence they are in the habit of hiding some superstitious object in their clothes or in their hair, or even in the most secret parts of the their bodies which must not be named.

But it may be objected that the devil might, without the use of such charms, so harden the heart of a witch that she is unable to confess her crimes; just as it is often found in the case of other criminals, no matter how great the tortures to which they are exposed, or how much they are convicted by the evidence of the facts and of witnesses. We answer that it is true that the devil can affect such taciturnity without the use of such charms; but he prefers to use them for the perdition of souls and the greater offence to the Divine Majesty of God.

This can be made clear from the example of a certain witch in the town of Hagenau, whom we have mentioned in the Second Part of this work. She used to obtain this gift of silence in the following manner: she killed a newly-born first-born male child who had not been baptized, and having roasted it in an oven together with other matters which it is not expedient to mention, ground it to powder and ashes; and if any witch or criminal carried about him some of this substance he would in no way be able to confess his crimes.

Here it is clear that a hundred thousand children so employed could not of their own virtue endow a person with such a power of keeping silence; but any intelligent person can understand that such means are used by the devil for the perdition of souls and to offend the Divine Majesty.

Again, it may be objected that very often criminals who are not witches exhibit the same power of keeping silence. In answer to this it must be said tat this power of taciturnity can proceed from three causes. First, from a natural hardness of heart; for some are soft-hearted, or even feeble-minded, so that at the slightest torture they admit everything, even some things which are not true; whereas others are so hard that however much they are tortured the truth is not to be had from them; and this is especially the case with those who have been tortured before, even if their arms are suddenly stretched or twisted.

Secondly, it may proceed from some instrument of witchcraft carried about the person, as has been said, either in the clothes or in the hairs of the body. And thirdly, even if the prisoner has no such object secreted about her person, they are sometimes endowed with this power by other witches, however far they may be removed from them. For a certain witch at Issbrug used to boast that, if she had no more than a thread from the garments of any prisoner, she could so work that however much that prisoner were tortured, even to death, she would be unable to confess anything. So the answer to this objection is clear.

But what is to be said of a case that happened in the Diocese of Ratisbon? Certain heretics were convicted by their own confession not only as impenitent but as open advocates of that perfidy; and when they were condemned to death it happened that they remained unharmed in the fire. At length their sentence was altered to death by drowning, but this was no more effective. All were astonished, and some even began to say that their heresy must be true; and the Bishop, in great anxiety for his flock, ordered a three days' fast. When this had been devoutly fulfilled, it came to the knowledge of someone that those heretics had a magic charm sewed between the skin and the flesh under one arm; and when this was found and removed, they were delivered to the flames and immediately burned. Some say that a certain necromancer learned this secret during a consultation with the devil, and betrayed it; but however it became known, it is probably that the devil, who is always scheming for the subversion of faith, was in some way compelled by Divine power to reveal the matter.

From this it may be seen what a Judge ought to do when such a case happens to him: namely, that he should rely upon the protection of God, and by the prayers and fasting of devout persons drive away this sort of devil's work from witches, in those cases where they cannot be made to confess under torture even after their clothes have been changed and all their hair has been shaved off and abraded.

Now in the parts of Germany such shaving, especially of the secret parts, is not generally considered delicate, and therefore we Inquisitors do not use it; but we cause the hair of their head to be cut off, and placing a morsel of Blessed Wax in a cup of Holy Water and invoking the most Holy Trinity, we give it them to drink three times on a fasting stomach, and by the grace of God we have by this means caused many to break their silence. But in other countries the Inquisitors order the witch to be shaved all over her body. And the Inquisitor of Como has informed us that last year, that is, in 1485, he ordered forty-one witches to be burned, after they had been shaved all over. And this was in the district and county of Burbia, commonly called Wormserbad, in the territory of the Archduke of Austria, towards Milan.

But it may be asked whether, in a time of need, when all other means of breaking a witch's silence have failed, it would be lawful to ask the advice in this matter of sorceresses who are able to cure those who are bewitched. We answer that, whatever may have been doe in that matter at Ratisbon, it is our earnest admonition in the Lord that no one, no matter how great may be the need, should consult with sorceresses on behalf of the State; and this because of the great offence which is thereby caused to the Divine Majesty, when there are so many other means open to us which we may use either in their own proper form or in some equivalent form, so that the truth will be had from their own mouths and they can be consigned to the flames; or failing this, God will in the meantime provide some other death for the witch.

For there remain to us the following remedies against this power of silence. First, let a man do all that lies in his own power by the exercise of his qualities, persisting often with the methods we have already mentioned, and especially on certain days, as will be shown in the following Question. See II. Corinthians ix: That ye may abound in all good works.

Secondly, if this should fail, let him consult with other persons; for perhaps they may think of some means which has not occurred to him, since there are various methods of counteracting witchcraft.

Thirdly, if these two fail, let him have recourse to devout persons, as it is said in Ecclesiasticus xxxvii: Be continually with a godly man, whom thou knowest to keep the commandments of the Lord. Also let him invoke the Patron Saints of the country. But if all these fail, let the Judge and all the people at once put their trust in God with prayers and fasting, that the witchcraft may be removed by reason of their piety. For so Josaphat prayed in II. Paralipomenon xx: When we know no what we should do, we have this one refuge, that we should turn our eyes to Thee. And without doubt God will not fail us in our need.

To this effect also S. Augustine speaks (26, q. 7, non obseruabitis): Whosoever observes any divinations or auguries, or attends to or consents to such as observe them, or gives credit to such by following after their works, or goes into their houses, or introduces them into his own house, or asks questions of them, let him know that he has perverted the Christian faith and his baptism and is a pagan and apostate and enemy of God, unless he is corrected by ecclesiastical penances and is reconciled with God. Therefore let the Judge not fail always to use the lawful remedies, as we have said, together with these following final precautions.

Question XVI. Of the fit Time and of the Method of the Second Examination. And it is the Eleventh Action, concerning the Final Precautions to be Observed by the Judge

THERE are one or two points to be noted with regard to what we have just written. First, that witches should be questioned on the more Holy Days and during the solemnization of the Mass, and that the people should be exhorted to pray for Divine help, not in any specific manner, but that they should invoke the prayers of the Saints against all the plagues of the devil.

Secondly, as we have said before, the Judge should wear round his neck Consecrated Salt and other matters, with the Seven Words which Christ uttered on the Cross written in a schedule, and all bound together. And he should, if he conveniently can, wear these made into the length of Christ's stature against his naked body, and bind other Holy things about him. For it is shown by experience that witches are greatly troubled by these things, and can hardly refrain from confessing the truth. The Relics of the Saints, too, are of especial virtue.

Having taken these precautions, and after giving her Holy Water to drink, let him again begin to question her, all the time exhorting her as before. And while she is raised from the ground, if she is being tortured in this way, let the Judge read or cause to be read to her the depositions of the witnesses with their names, saying: "See! You are convicted by the witnesses." Also, if the witnesses are willing to confront her face to face, the Judge shall ask her if she will confess if the witnesses are brought before her. And if she consents, let the witnesses be brought in and stand before her, so that she may be contrained or shamed into confessing some of her crimes.

Finally, if he sees that she will not admit her crimes, he shall ask her whether, to prove her innocence, she is ready to undergo the ordeal by red-hot iron. And they all desire this, knowing that the devil will prevent them from being hurt; therefore a true witch is exposed in this manner. The Judge shall ask her how she can be so rash as to run so great a risk, and all shall be written down; but it will be shown later that they are never to be allowed to undergo this ordeal by red-hot iron.

Let the Judge also not that when witches are questioned on a Friday, while the people are gathered together at Holy Mass to await our Saviour, they very often confess.

But we must proceed to the extreme case, when after every expedient has been tried the witch still maintains silence. The Judge shall then loose her and, using the precautions which follow, shall take her from the place of punishment to another place under a strong guard; but let him take particular care not to release her on any sort of security; for when that is done, they never confess the truth, but always become worse.

But in the first place let him cause her to be well treated in the manner of food and drink, and meanwhile let honest persons who are under no suspicion enter to her and talk often with her on indifferent subjects, and finally advise her in confidence to confess the truth, promising that the Judge will be merciful to her and that they will intercede for her. And finally let the Judge come in and promise that he will be merciful with the mental reservation that he means he will be merciful to himself or the State; for whatever is done for the safety of the State is merciful.

But if he promises her her life, as we showed in Question XIV that he can do in three ways, let it all be written down by the Notary in what words and with what intention mercy was promised. And if the accused begs for mercy in this way, and discovers her crime, let her be promised in a vague and general way that she will receive even more than she has petitioned for, so that she may speak with the greater confidence.

As a second precaution in this case, when she refuses altogether to reveal the truth, the Judge should, as we have said before, examine her friends and associates without her knowledge; and if these have deposed anything which might lead to her conviction, this must be diligently investigated. Also, if any instruments or unguents or boxes have been found in her house, they should be shown to her, and she should be asked for what purposes they have been used.

A third precaution can be taken when she still persists in her obstinancy after her associates have been examined and borne witness against her, and not for her. If she has no friends, let some other trustworthy man who is known to be congenial to the accused and to some extent a patron of hers, enter to the witch one evening and engage her in a protracted conversation. And then, if he is not an accomplice, let him pretend that it is too late for him to return, and stay in the prison with her, and continue talking during the night. And if he is an accomplice, let them eat and drink together, and talk to each other about the things they have done. And then let it be arranged that spies should stand outside in a convenient place, and listen to them and take note of their words, and if necessary let the have a scribe with them.

As a fourth precaution, if she then begins to tell the truth, let the Judge on no account postpone hearing her confession, even in the middle of the night, buy proceed with it to the best of his ability. And if it is in the day-time, let him not care if he delays his luncheon or dinner, but persist until she has told the truth, at least in the main. For it is generally found that, after postponements and interruptions, they return to their vomit and will not reveal the truth which they began to confess, having thought worse of it.

And let the Judge take note that, after she has confessed the injuries done to men and animals, he shall ask her for how many years she has had an Incubus devil, and how long it is since she abjured the faith. For they never confess to these matters unless they have first confessed to these matters unless they have first confessed their other deeds; therefore they must be asked concerning these last of all.

As a fifth precaution, when all the above have failed, let her, if possible, be led to some castle; and after she has been kept there under custody for some days, let the castellan pretend that he is going on a long journey. And then let some of his household, or even some honest women, visit her and promise that they will set her entirely at liberty if she will teach them how to conduct certain practices. And let the Judge take note that by this means they have very often confessed and been convicted.

Quite lately a witch was detained in the Castle of Königsheim near the town of Schlettstadt in the Diocese of Strasburg, and could not be induced by any tortures or questions to confess her crimes. But at last the castellan used the method we have just described. Although he was himself present in the castle, the witch thought he was away, and three of his household came in to her and promised they would set her free if she would teach them how to do certain things. At first she refused, saying that they were trying to entrap her; but at last she asked what it was that they wanted to know. And one asked how to raise a hailstorm, and another asked about carnal matters. When at length she agreed to show him how to raise a hailstorm, and a bowl of water had been brought in, the witch told him to stir the water with his finger, and herself uttered certain words, and suddenly the place which he had named, a wood near the castle, was visited by such a tempest and storm of hail as had not been seen for many years.

It yet remains to show how the Judge is to proceed in pronouncing sentence in a case where all these means have failed, or what is further to be done even when she has confessed her crimes, that the whole process may be brought to an end; and we shall complete this Last Part of this work with a consideration of these matters.

Question XVII. Of Common Purgation, and especially of the Trial of Red-hot Iron, to which Witches Appeal

THE question is now asked whether the secular judge may allow a witch to be submitted to a common purgation (concerning which see the Canon 2, q. 4, consuluisti, and cap. monomachiam), in the manner in which a civil defendant is allowed the trial by ordeal, as, for example, that by red-hot iron. And it may seem that he may do so.

For trial by combat is allowable in a criminal case for the protection of life, and in a civil case for the protection of property; then wherefore not the trial by red-hot iron or boiling water? S. Thomas allows that the former is permissible in some cases, when he says in the last article of the Second of the Second, q. 95, that a duel is lawful when it appears to be consonant with commonsense. Therefore the trial by red-hot iron should also be lawful in some cases.

Also it has been used by many Princes of saintly life who have availed themselves of the advice and counsel of good men; as, for example, the Sainted Emperor Henry in the case of the virgin Cunegond whom he had married, who was suspected of adultery.

Again, a judge, who is responsible for the safety of the community, may lawfully allow a smaller evil that a greater may be avoided; as he allows the existence of harlots in towns in order to avoid a general confusion of lust. For S. Augustine On Free Will says: Take away the harlots, and you will create a general chaos and confusion of lust. So, when a person has been loaded with insults and injuries by any community, he can clear himself of any criminal or civil charge by means of a trial by ordeal.

Also, since less hurt is caused to the hands by the red-hot iron than is the loss of life in a duel, if a duel is permitted where such things are customary, much more should the trial by red-hot iron be allowed.

But the contrary view is argued where it says (2, q. 5, monomachiam) that they who practice such and similar things appear to be tempting God. And here the Doctors affirm it must be noted that, according to S. Paul (I. Thessalonians v), we must abstain, not only from evil, but from all appearance of evil. Therefore the Canon says in that chapter, not that they who use such practices tempt God, but that they appear to tempt Him, so that it may be understood that, even if a man engage in such a trial with none but good intentions, yet since it has the appearance of evil, it is to be avoided.

I answer that such tests or trials are unlawful for two reasons. First, because their purpose is to judge of hidden matters of which it belongs only to God to judge. Secondly, because there is no Divine authority for such trials, nor are they anywhere sanctioned in the writings of the Holy Fathers. And it says in the chapter consuluisti, 2, q. 5: That which is not sanctioned in the writings of the Sainted Fathers is to be presumed superstitious. And Pope Stephen in the same chapter says: It is left to your judgement to try prisoners who are convicted by their own confession or the proofs of the evidence; but leave that which is hidden and unknown to Him Who alone knows the hearts of men.

There is, nevertheless, a difference between a duel and the trial by red-hot iron or boiling water. For a duel appears to be more humanly reasonable, the combatants being of similar strength and skill, than a trial by red-hot iron. For although the purpose of both is to search out something hidden by means of a human act; yet in the case of trial by red-hot iron a miraculous effect is looked for, whereas this is not so in the case of a duel, in which all that can happen is the death of either, or both, of the combatants. Therefore the trial by red-hot iron is altogether unlawful; though a duel is not illegal to the same extent. So much has been incidentally admitted in respect of duels, on account of Princes and secular Judges.

It is to be noted that, because of those words of S. Thomas which make the above distinction, Nicolas of Lyra, in his Commentary on the duel or combat between David and Goliath, I. Regum xvii, tried to prove that in some cases a duel is lawful. But Paul of Burgos proves that not this, but rather the opposite was the meaning of S. Thomas; and all Princes and secular Judges ought to pay particular attention to his proof.

His first point is that a duel, like the other trial by ordeal, has as its purpose the judgement of something hidden, which ought to be left to the judgement of God, as we have said. And it cannot be said that this combat of David is an authority for duelling; for it was revealed to him by the Lord through some inner instinct that he must engage in that combat and avenge upon the Philistine the injuries done against God, as is proved by David's words: I come against thee in the name of the living God. So he was not properly speaking a duellist, but he was an executor of Divine justice.

His second point is that Judges must especially note that in a duel power, or at least licence, is given to each of the parties to kill the other. But since one of them is innocent, that power of licence is given for the killing of an innocent man; and this is unlawful, as being contrary to the dictates of natural law and to the teaching of God. Therefore, a duel is altogether unlawful, not only on the part of the appellant and the respondent, but also on the part of the Judge and his advisers, who are all equally to be considered homicides or parties to manslaughter.

Thirdly, he points out that a duel is a single combat between two men, the purpose of which is that the justice of the case should be made clear by the victory of one party, as if by Divine judgement, notwithstanding the fact that one of the parties is fighting in an unjust cause; and in this way God is tempted. Therefore it is unlawful on the part both of the appellant and the respondent. But considering the fact that the judges have other means of arriving at an equitable and just termination of the dispute, when they do not use such means, but advise or even permit a duel when they could forbid it, they are consenting to the death of an innocent person.

But since it is unlikely that Nicolas the Commentator was unaware or ignorant of the above reasoning, it is concluded that, when he says that in some cases a duel can be fought without mortal sin, he is speaking on the part of the Judges or advisers, namely, in a case when such a trial is undertaken, not on their responsibility or advice, but purely on that of the appellant and respondent themselves.

But since it is not our purpose to linger over and debate such considerations, but to return to the question of witches, it is clear that, if this sort of trial is forbidden in the case of other criminal causes, such as theft or robbery, still more must it be forbidden in the case of witches who, it is agreed, obtain all their power from the devil, whether it be for causing or curing an injury, for removing or for preventing an effect of witchcraft.

And it is not wonderful witches are able to undergo this trial by ordeal unscathed with the help of devils; for we learn from naturalists that if the hands be anointed with the juice of a certain herb they are protected from burning. Now the devil has an exact knowledge of the virtues of such herbs: therefore, although he can cause the hand of the accused to be protected from the red-hot iron by invisibly interposing some other substance, yet he can procure the same effect by the use of natural objects. Hence even less that other criminals ought witches to be allowed this trial by ordeal, because their intimate familiarity with the devil; and from the very fact of their appealing to this trial they are to be held as suspected witches.

An incident illustrative of our argument occurred hardly three years ago in the Diocese of Constance. For in the territory of the Counts of Fuerstenberg and the Black Forest there was a notorious witch who had been the subject of much public complaint. At last, as the result of a general demand, she was seized by the Count and accused of various evil works of witchcraft. When she was being tortured and questioned, wishing to escape from their hands, she appealed to the trial by red-hot iron; and the Count, being you and inexperienced, allowed it. And she then carried the red-hot iron not only for the stipulated three paces, but for six, and offered to carry it even farther. Then, although they ought to have taken this as manifest proof that she was a witch (since one of the Saints dared to tempt the help of God in this manner), she was released from her chains and lives to the present time, not without grave scandal to the Faith in those parts.

Question XVIII. Of 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 word of mouth without the formality of putting it into writing.

A definitive sentence is one which pronounces a final decision as to the main issue of the case.

A preceptive sentence is one which is pronounced by a lower authority on the instruction of a higher. But we shall be concerned with the first two of these, and especially with the definitive sentence.

Now it is laid down by law that a definitive sentence which has been arrived at without a due observance of the proper legal procedure in trying a case is null and void in law; and the legal conduct of a case consists in two things. One concerns the basis of the judgement; for there must be a due provision for the hearing of arguments both for the prosecution and the defence, and a sentence arrived at without such a hearing cannot stand. The other is not concerned with the basis of the judgement, but provides that the sentence must not be conditional; for example, a claim for possession should not be decided conditionally upon some subsequent claim of property; but where there is no question of such an objection the sentence shall stand.

But in the case we are considering, which is a process on behalf of the faith against a charge of heresy (though the charge is a mixed one), the procedure is straighforward and summary. That is to say, the Judge need not require a writ, or demand that the case should be contested. But he must allow opportunity for the necessary proofs, and issue his citation, and exact the protestation of the oath concerning calumny, etc. Therefore there has lately been a new law made as to the method of procedure in such cases.

To proceed to our second consideration, namely, of the nature of the pronouncement of the sentence, it must be noted that it should be pronounced by the Judge and no one else, otherwise it is not valid. Also the Judge must be sitting in a public and honourable place; and he must pronounce it in the day-time and not in the darkness; and there are other conditions to be observed; for example, the sentence must not be promulgated upon a Holy Day, nor yet merely delivered in writing.

Yet it is to be noted that since, as we have said, this case is conducted in a simple and summary manner, it may lawfully be conducted on Holy Days for the sake of the convenience of the public, and the Judge may cut short any digressions. Therefore the Judge may, if he pleases, act in such a manner, and even pass sentence without putting it in writing. For we are authoritatively informed that there are cases in which a sentence is valid without its being put into writing, as, for example, when such is the custom of any particular locality or Court. Also there is excellent precedent for a Bishop, when he is the Judge, allowing the sentence to be pronounced by some other person.

Note again that, although in criminal actions the execution of the sentence is not to be delayed, this rule does not hold good in four cases, with two of which we are here concerned. First, when the prisoner is a pregnant woman; and then the sentence shall be delayed until she has given birth. Secondly, when the prisoner has confessed her crime, but has afterwards denied it again: that is to say, when the way which we explained in the Fourteenth Question.

Now before we proceed to our third consideration, namely, the different methods of passing sentence which we shall proceed to treat of up to the end of this work, we must first make some remarks about the various ways in which a prisoner is rendered suspect, from which the various methods of passing sentence follow as a consequence.

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 dâAndrea 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 dâAndrea explain that the word vehement does not mean the same as the word 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 Judgeâs 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 yearâs 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.