Who are the Fit and Proper Judges in the Trial of Witches?
The question is whether witches, together with their patrons and protectors and defenders, are so entirely subject to the jurisdiction of the Diocesan Ecclesiastical Court and the Civil Court so that the Inquisitors of the crime of heresy can be altogether relieved from the duty of sitting in judgement upon them. And it is argued that this is so. For the Canon (c. accusatus, § sane, lib. VI) says: Certainly those whose high privilege it is to judge concerning matters of the faith ought not to be distracted by other business; and Inquisitors deputed by the Apostolic See to inquire into the pest of heresy should manifestly not have to concern themselves with diviners and soothsayers, unless these are also heretics, nor should it be their business to punish such, but they may leave them to be punished by their own judges.
Nor does there seem any difficulty in the fact that the heresy of witches is not mentioned in that Canon. For these are subject to the same punishment as the others in the court of conscience, as the Canon goes on to say (dist. I, pro dilectione). If the sin of diviners and witches is secret, a penance of forty days shall be imposed upon them: if it is notorious, they shall be refused the Eucharist. And those whose punishment is identical should receive it from the same Court. Then, again, the guilt of both being the same, since just as soothsayers obtain their results by curious means, so do witches look for and obtain from the devil the injuries which they do to creatures, unlawfully seeking from His creatures that which should be sought from God alone; therefore both are guilty of the sin of idolatry.
This is the sense of Ezechiel xxi, 23; that the King of Babylon stood at the cross-roads, shuffling his arrows and interrogating idols.
Again it may be said that, when the Canon says “Unless these are also heretics,” it allows that some diviners and soothsayers are heretics, and should therefore be subject to trial by the Inquisitors; but in that case artificial diviners would also be so subject, and no written authority for that can be found.
Again, if witches are to be tried by the Inquisitors, it must be for the crime of heresy; but it is clear that the deeds of witches can be committed without any heresy. For when they stamp into the mud of the Body of Christ, although this is a most horrible crime, yet it may be done without any error in the understanding, and therefore without heresy. For it is entirely possible for a person to believe that It is the Lord’s body, and yet throw It into the mud to satisfy the devil, and this by reason of some pact with him, that he may obtain some desired end, such as the finding of a treasure or anything of that sort. Therefore the deeds of witches need involved no error in faith, however great the sin may be; in which case they are not liable to the Court of the Inquisition, but are left to their own judges.
Again, Solomon showed reverence to the gods of his wives out of complaisance, and was not on that account guilty of apostasy from the Faith; for in his heart he was faithful and kept the true Faith. So also when witches give homage to devils by reason of the pact they have entered into, but keep the Faith in their hearts, they are not on that account to be reckoned as heretics.
But it may be said that all witches have to deny the Faith, and therefore must be judged heretics. On the contrary, even if they were to deny the Faith in their hearts and minds, still they could not be reckoned as heretics, but as apostates. But a heretic is different from an apostate, and it is heretics who are subject to the Court of the Inquisition; therefore witches are not so subject.
Again it is said, in c. 26, quest. 5: Let the Bishops and their representatives strive by every means to rid their parishes entirely of the pernicious art of soothsaying and magic derived from Zoroaster; and if they find any man or woman addicted to this crime, let him be shamefully cast out of their parishes in disgrace. So when it says at the end of c. 348, Let them leave them to their own Judges; and since it speaks in the plural, both of the Ecclesiastic and the Civil Court; therefore, according to this Canon they are subject to no more than the Diocesan Court.
But if, just as these arguments seem to show it to be reasonable in the case of Inquisitors, the Diocesans also wish to be relieved of this responsibility, and to leave the punishment of witches to the secular Courts, such a claim could be made good by the following arguments. For the Canon says, c. ut inquisitionis: We strictly forbid the temporal lords and rulers and their officers in any way to try to judge this crime, since it is purely an ecclesiastical matter: and it speaks of the crime of heresy. It follows therefore that, when the crime is not purely ecclesiastical, as is the case with witches because of the temporal injuries which they commit, it must be punished by the Civil and not by the Ecclesiastical Court.
Besides, in the last Canon Law concerning Jews it says: His goods are to be confiscated, and he is to be condemned to death, because with perverse doctrine he opposed the Faith of Christ. But if it is said that this law refers to Jews who have been converted, and have afterwards returned to the worship of the Jews, this is not a valid objection. Rather is the argument strengthened by it; because the civil Judge has to punish such Jews as apostates from the Faith; and therefore witches who abjure the Faith ought to be treated in the same way; for abjuration of the Faith, either wholly or in part, is the essential principle of witches.
And although it says that apostasy and heresy are to be judged in the same way, yet it is not the part of the ecclesiastical but of the civil Judge to concern himself with witches. For no one must cause a commotion among the people by reason of a trial for heresy; but the Governor himself must make provision for such cases.
The Authentics of Justinian, speaking of ruling princes, says: You shall not permit anyone to stir up your Province by reason of a judicial inquiry into matters concerning religions or heresies, or in any way allow an injunction to be put upon the Province over which you govern; but you shall yourself provide, making use of such monies and other means of investigation as are competent, and not allow anything to be done in matters of religion except in accordance with our precepts. It is clear from this that no one must meddle with a rebellion against the Faith except the Governor himself.
Besides, if the trial and punishment of such witches were not entirely a matter for the civil Judge, what would be the purpose of the laws which provide as follows? All those who are commonly called witches are to be condemned to death. And again: Those who harm innocent lives by magic arts are to be thrown to the beasts. Again, it is laid down that thy are to be subjected to questions and tortures; and that none of the faithful are to associate with them, under pain of exile and the confiscation of all their goods. And many other penalties are added, which anyone may read in those laws.
But in contradiction of all these arguments, the truth of the matter is that such witches may be tried and punished conjointly by the Civil and the Ecclesiastical Courts. For a canonical crime must be tried by the Governor and the Metropolitan of the Province; not by the Metropolitan alone, but together with the Governor. This is clear in the Authentics, where ruling princes are enjoined as follows: If it is a canonical matter which is to be tried, you shall inquire into it together with the Metropolitan of the Province. And to remove all doubt on this subject, the gloss says: If it is a simple matter of the observance of the faith, the Governor alone may try it; but if the matter is more complicated, then it must be tried by a Bishop and the Governor; and the matter must be kept within decent limits by someone who has found favour with God, who shall protect the orthodox faith, and impose suitable indemnities of money, and keep our subjects inviolate, that is, shall not corrupt the faith in them.
And again, although a secular prince may impose the capital sentence, yet this does not exclude the judgement of the Church, whose part it is to try and judge the case. Indeed this is perfectly clear from the Canon Law in the chapters de summa trin. and fid. cath., and again in the Law concerning heresy, c. ad abolendam and c. urgentis and c. excommunicamus, 1 and 2. For the same penalties are provided by both the Civil and the Canon Laws, as is shown by the Canon Laws concerning the Manichaean and Arian heresies. Therefore the punishment of witches belongs to both Courts together, and not to one separately.
Again, the laws decree that clerics shall be corrected by their own Judges, and not by the temporal or secular Courts, because their crimes are considered to be purely ecclesiastical. But the crime of witches is partly civil and partly ecclesiastical, because they commit temporal harm and violate the faith; therefore it belongs to the Judges of both Courts to try, sentence, and punish them.
This opinion is substantiated by the Authentics, where it is said: If it is an ecclesiastical crime needing ecclesiastical punishment and fine, it shall be tried by a Bishop who stands in favour with God, and not even the most illustrious Judges of the Province shall have a hand in it. And we do not wish the civil Judges to have any knowledge of such proceedings; for such matters must be examined ecclesiastically and the souls of the offenders must be corrected by ecclesiastical penalties, according to the sacred and divine rules which our laws worthily follow. So it is said. Therefore it follows that on the other hand a crime which is of a mixed nature must be tried and punished by both courts.
We make our answer to all the above as follows. Our main object here is to show how, with God’s pleasure, we Inquisitors of Upper Germany may be relieved of the duty of trying witches, and leave them to be punished by their own provincial Judges; and this because of the arduousness of the work: provided always that such a course shall in no way endanger the preservation of the faith and the salvation of souls. And therefore we engaged upon this work, that we might leave to the Judges themselves the methods of trying, judging and sentencing in such cases.
Therefore in order to show that the Bishops can in many cases proceed against witches without the Inquisitors; although they cannot so proceed without the temporal and civil Judges in cases involving capital punishment; it is expedient that we set down the opinions of certain other Inquisitors in parts of Spain, and (saving always the reverence due to them), since we all belong to one and the same Order of Preachers, to refute them, so that each detail may be more clearly understood.
Their opinion is, then, that all witches, diviners, necromancers, and in short all who practise any kind of divination, if they have once embraced and professed the Holy Faith, are liable to the Inquisitorial Court, as in the three cases noted in the beginning of the chapter, Multorum querela, in the decretals of Pope Clement concerning heresy; in which it says that neither must the Inquisitor proceed without the Bishop, nor the Bishop without the Inquisitor: although there are five other cases in which one may proceed without the other, as anyone who reads the chapter may see. But in one case it is definitively stated that one must not proceed without the other, and that is when the above diviners are to be considered as heretics.
In the same category they place blasphemers, and those who in any way invoke devils, and those who are excommunicated and have contumaciously remained under the ban of excommunication for a whole year, either because of some matter concerning faith or, in certain circumstances, not on account of the faith; and they further include several other such offences. And by reason of this the authority of the Ordinary is weakened, since so many more burdens are placed upon us Inquisitors which we cannot safely bear in the sight of the terrible Judge who will demand from us a strict account of the duties imposed upon us.
And because their opinion cannot be refuted unless the fundamental thesis upon which it is founded is proved unsound, it is to be noted that it is based upon the commentators on the Canon, especially on the chapter accusatus, and § sane, and on the words “savour of heresy.” Also they rely upon the sayings of the Theologians, S. Thomas, Blessed Albert, and S. Bonaventura, in the Second Book of Sentences, dist. 7.
It is best to consider some of these in detail. For when the Canon says, as was shown in the first argument, that the Inquisitors or heresy should not concern themselves with soothsayers and diviners unless they manifestly savour of heresy, they say that soothsayers and diviners are of two sorts, either artificial or heretical. And the first sort are called diviners pure and simple, since they work merely by art; and such are referred to in the chapter de sortilegiis, where it says that the presbyter Udalricus went to a secret place with a certain infamous person, that is, a diviner, says the gloss, not with the intention of invoking the devil, which would have been heresy, but that, by inspecting the astrolabe, he might find out some hidden thing. And this, they say, is pure divination or sortilege.
But the second sort are called heretical diviners, whose art involves some worship of or subjection to devils, and who essay by divination to predict the future of something of that nature, which manifestly savours of heresy; and such are, like other heretics, liable to the Inquisitorial Court.
And that this is the meaning of the Canon they prove from commentaries of the Canonists on the word “savour.” For Giovanni d’Andrea, writing on this Canon accusatus, and the word “saviour,” says: They savour of heresy in this way, that they utter nefarious prayers and offer sacrifices at the altars of idols, and they consult with devils and receive answers from them; or they meet together to practise heretical sortes, that they may have an answer, re-baptize a child, and practise other such matters.
Many others also they quote in support of their opinion, including John Modestus; S. Raymund, and William de Laudun, O.P. And they refer to the decision of the Church at the Council of Aquitaine, c. 26, q. 5, Episcopi, where such superstitious women are called infidels, saying, Would that these had perished alone in their perfidy. And perfidy in a Christian is called heresy; therefore they are subject to the Court of the Inquisitors of heresy.
They quote also the Theologians, especially S. Thomas, the Second Book of Sentences, dist. 7, where he considers whether it is a sin to use the help of devils. For speaking of that passage in Esaias viii: Should not a people seek unto their God? he says among other things: In everything the fulfilment of which is looked for from the power of the devil, because of a pact entered into with him, there is apostasy from the faith, either in word, if there is some invocation, or in deed, even if there be no sacrifice offered.
To the same effect they quote Albertus, and Peter of Tarentaise, and Giovanni Bonaventura, who has lately been canonized, not under the name of Giovanni, although that was his true name. Also they quote Alexander of Hales and Guido the Carmelite. All these say that those who invoke devils are apostates, and consequently heretics, and therefore subject to the Court of the Inquisitors of heretics.
But the said Inquisitors of Spain have not, by the above or any other arguments, made out a sufficient case to prove that such soothsayers etc. may not be tried by the Ordinary or the Bishops without the Inquisitors; and that the Inquisitors may not be relieved from the duty of trying such diviners and necromancers, and even witches: not that the Inquisitors are not rather to be praised than blamed when they do try such cases, when the Bishops fail to do so. And this is the reason that they have not proved their case. The Inquisitors need only concern themselves with matters of heresy, and the heresy must be manifest; as is shown by the frequently quoted Canon accusatus, § sane.
This being the case, it follows that however serious and grave may be the sin which a person commits, if it does not necessarily imply heresy, then he must not be judged as a heretic, although he is to be punished. Consequently an Inquisitor need not interfere in the case of a man who is to be punished as a malefactor, but not as a heretic, but may leave him to be tried by the Judges of his own Province.
It follows again that all the crimes of invoking devils and sacrificing to them, of which the Commentators and Canonists and Theologians speak, are no concern of the Inquisitors, but can be left to the secular or episcopal Courts, unless they also imply heresy. This being so, and it being the case that the crimes we are considering are very often committed without any heresy, those who are guilty of such crimes are not to be judged or condemned as heretics, as is proved by the following authorities and arguments.
For a person rightly to be adjudged a heretic he must fulfil five conditions. First, there must be an error in his reasoning. Secondly, that error must be in matters concerning the faith, either being contrary to the teaching of the Church as to the true faith, or against sound morality and therefore not leading to the attainment of eternal life. Thirdly, the error must lie in one who has professed the Catholic faith, for otherwise he would be a Jew or a Pagan, not a heretic. Fourthly, the error must be of such a nature that he who holds it must confess some of the truth of Christ as touching either His Godhead or His Manhood; for is a man wholly denies the faith, he is an apostate. Fifthly, he must pertinaciously and obstinately hold to and follow that error. And that this is the sense of heretics is proved as follows (not by way of refuting, but of substantiating the gloss of the Canonists).
For it is well known to all through common practice that the first essential of a heretic is an error in the understanding; but two conditions are necessary before a man can be called a heretic; the first material, that is, an error in reasoning, and the second formal, that is, an obstinate mind. S. Augustine shows this when he says: A heretic is one who either initiates or follows new and false opinions. It can also be proved by the following reasoning: heresy is a form of infidelity, and infidelity exists subjectively in the intellect, in such a way that a man believes something which is quite contrary to the true faith.
This being so, whatever crime a man commits, if he acts without an error in his understanding he is not a heretic. For example, if a man commits fornication or adultery, although he is disobeying the command Thou shalt not commit adultery, yet he is not a heretic unless he holds the opinion that it is lawful to commit adultery. The point can be argued in this way: When the nature of a thing is such that two constituent parts are necessary to its existence, if one of those two parts is wanting the thing itself cannot exist; for if it could, then it would not be true that that part is necessary to its existence. For in the constitution of a house it is necessary that there should be a foundation, walls, and a roof; and if one of these is missing, there is no house. Similarly, since an error in the understanding is a necessary condition of heresy, no action which is done entirely without any such error can make a man a heretic.
Therefore we Inquisitors of Germany are in agreement with Blessed Antoninus where he treats of this matter in the second part of his Summa; saying that to baptize things, to worship devils, to sacrifice to them, to tread underfoot the Body of Christ, and all such terrible crimes, do not make a man a heretic unless there is an error in his understanding. Therefore a man is not a heretic who, for example, baptizes an image, not holding any erroneous belief about the Sacrament of Baptism or its effect, nor thinking that the baptism of the image can have any effect of its own virtue; but does this in order that he may more easily obtain some desire from the devil whom he seeks to please by this means, acting with either an implied or an expressed pact that the devil will fulfil the desires either of himself or of someone else. In this way men who, with either a tacit or an expressed pact, invoke devils with characters and figures in accordance with magic practice to perform their desires are not necessarily heretics. But they must not ask from the devil anything which is beyond the power or the knowledge of the devil, having a wrong understanding of his power and knowledge. Such would be the case with any who believed that the devil could coerce a man’s free will; or that, by reason of their pact with him, the devil could do anything which they desired, however much it were forbidden by God; or that the devil can know the whole of the future; or that he can effect anything which only God can do. For there is no doubt that men with such beliefs have an error in their understanding, holding a wrong opinion of the power of the devil; and therefore, granting the other conditions necessary for heresy, they would be heretics, and would be subject at once to the Ordinary and to the Inquisitorial Court.
But if they act for the reasons we have said, not out of any wrong belief concerning baptism or the other matters we have mentioned, as they very commonly do; for since witches and necromancers know that the devil is the enemy of the faith and the adversary of salvation, it must follow that they are compelled to believe in their hearts that there is great might in the faith and that there is no false doctrine of which the father of lies is not known to be the origin; then, although they sin most grievously, yet they are not heretics. And the reason is that they have no wrong belief concerning the sacrament, although they use it wrongly and sacrilegiously. Therefore they are rather sorcerers than heretics, and are to be classed with those whom the above Canon accusatus declares are not properly subject to the Inquisitorial Court, since they do not manifestly savour of heresy; their heresy being hidden, if indeed it exists at all.
It is the same with those who worship and sacrifice to the devil. For if they do this in the belief that there is any divinity in devils, or that they ought to be worshipped and that, by reason of such worship, that can obtain from the devil what they desire in spite of the prohibition or permission of God, then they are heretics. But if they act in such a way not out of any such belief concerning the devil, but so that they may the more easily obtain their desires because of some pact formed with the devil, then they are not necessarily heretics, although they sin most grievously.
For greater clearness, some objections are to be disposed of and refuted. For it appears to be against our argument that, according to the laws, a simonist is not a heretic (1, q. 1: “Whoever by means of money, but not having an error of the understanding”). For a simonist is not in the narrow and exact sense of the word a heretic; but broadly speaking and by comparison he is so, according to S. Thomas, when he buys or sells holy things in the belief that the gift of grace can be had for money. But if, as is often the case, he does not act in this belief, he is not a heretic. Yet he truly would be if he did believe that the gift of grace could be had for money.
Again we are apparently in opposition to what is said of heretics in the Canon; namely, that he who reveres a heretic is himself a heretic, but he who worships the devil sins more heavily than he who reveres a heretic, therefore, etc.
Also, a man must be obviously a heretic in order that he may be judged as such. For the Church is competent to judge only of those things which are obvious, God alone having knowledge and being the Judge of that which is hidden (dist. 33, erubescant). But the inner understanding can only be made apparent by intrinsic actions, either seen or proved; therefore a man who commits such actions as we are considering is to be judged a heretic.
Also, it seems impossible that anyone should commit such an action as the treading underfoot of the Body of Christ unless he held a wrong opinion concerning the Body of Christ; for it is impossible for evil to exist in the will unless there is error in the understanding. For according to Aristotle every wicked man is either ignorant or in error. Therefore, since they who do such things have evil in their wills, they must have an error in their understandings.
To these three objections we answer as follows; and the first and third may be considered together. There are two kinds of judgement, that of God and that of men. God judges the inner man; whereas man can only judge of the inner thoughts as they are reflected by outer actions, as is admitted in the third of these arguments. Now he who is a heretic in the judgement of God is truly and actually a heretic; for God judges no one as a heretic unless he has some wrong belief concerning the faith in his understanding. But when a man is a heretic in the judgement of men, he need not necessarily be actually a heretic; but because his deeds give an appearance of a wrong understanding of the faith he is, by legal presumption, considered to be a heretic.
And if it be asked whether the Church should stigmatize at once as heretics those who worship devils or baptize imagines, note these answers. First, it belongs rather to the Canonists than to the Theologians to discriminate in this matter. The Canonists will say that they are by legal presumption to be considered as heretics, and to be punished as such. A Theologian will say that it is in the first instance a matter for the Apostolic See to judge whether a heresy actually exists or is only to be presumed in law. And this may be because whenever an effect can proceed from a twofold cause, no precise judgement can be formed of he actual nature of the cause merely on the basis of the effect.
Therefore, since such effects as the worship of the devil or asking his help in the working of witchcraft, by baptizing an image, or offering to him a living child, or killing an infant, and other matters of this sort, can proceed from two separate causes, namely, a belief that it is right to worship the devil and sacrifice to him, and that images can receive sacraments; or because a man has formed some pact with the devil, so that he may obtain the more easily from the devil that which he desires in those matters which are not beyond the capacity of the devil, as we have explained above; it follows that no one ought hastily to form a definite judgement merely on the basis of the effect as to what is its cause, that is, whether a man does such things out of a wrong opinion concerning the faith. So when there is no doubt about the effect, still it is necessary to inquire farther into the cause; and if it be found that a man has acted out of a perverse and erroneous opinion concerning the faith, then he is to be judged a heretic and will be subject to trial by the Inquisitors together with the Ordinary. But if he has not acted for these reasons, he is to be considered a sorcerer, and a very vile sinner.
Another answer which touches the matter nearly is that, whatever may be said and alleged, it is agreed that all diviners and witches are judged as heretics by legal presumption and not by actual fact are subject to the Court of the Ordinary, not of the Inquisitors. And the aforesaid Inquisitors of other countries cannot defend their opinions by quoting the Canon and its commentators, because they who sacrifice to and worship devils are judged to be heretics be legal presumption, and not because the facts obviously show that they are such. For the text says that they must savour of heresy manifestly, that is, intrinsically and by their very nature. And it is enough for us Inquisitors to concern ourselves with those who are manifestly from the instrinsic nature of the case heretics, leaving others to their own judges.
It has been said that the cause must be inquired into, to know whether or not a man acts out of an error of faith; and this is easy. For the spirit of faith is known by the act of faith; as the spirit of chastity is shown by a chaste life; similarly the Church must judge a man a heretic if his actions show that he disputes any article of the faith. In this way even a witch, who has wholly or in part denied the faith, or used vilely the Body of Christ, and offered homage to the devil, may have done this merely to propitiate the devil; and even if she has totally denied the faith in her heart, she is to be judged as an apostate, for the fourth condition, which is necessary before anyone can rightly be said to be a heretic, will be wanting.
But if against this conclusion be set the Bull and commission given to us by our Holy Father Innocent VIII, that witches should be tried by the Inquisitors, we answer in this way. That this is not to say that the Diocesans also cannot proceed to a definite sentence against witches, in accordance with those ancient laws, as has been said. For that Bull was rather given to us because of the great care with which we have wrought to the utmost of our ability with the help of God.
Therefore we cannot concede to those other Inquisitors their first argument, since the contrary conclusion is rather the true one; for simonists are thought to be heretics only be legal presumption, and the Ordinaries themselves without the Inquisitors can try them. Indeed, the Inquisitors have no need to concern themselves with various simonists, or similarly with any others who are judged to be heretics only by legal presumption. For they cannot proceed against schismatic Bishops and other high Dignitaries, as is shown by the chapter of the Inquisition Concerning Heretics, Book VI, where is says: The Inquisitors of the sin of heresy deputed by the Apostolic See or by any other authority have no power to try such offenders on this sort of charge, or to proceed against them under pretext of their office, unless it is expressly stated in the letters of commission from the Apostolic See that they are empowered to do so.
But if the Inquisitors know or discover that Bishops or other high Dignitaries have been charged with heresy, or have been denounced or suspected of that crime, it is their duty to report the fact to the Apostolic See.
Similarly the answer to their second argument is clear from what has been said. For he who cherishes and comforts a heretic is himself a heretic if he does this in the belief that he is worthy to be cherished or honoured on account of his doctrine or opinion. But if he honours him for some temporal reason, without any error of faith in his understanding, he is not rightly speaking a heretic, though he is so by a legal fiction or presumption or comparison, because he acts as if he held a wrong belief concerning the faith like him whom he cherishes: so in this case he is not subject to the Inquisitorial Court.
The third argument is similarly answered. For though a man should be judged by the Church as a heretic on account of his outward actions, visible and proved, yet it does not always follow that he is actually a heretic, but is only so reputed by legal presumption. Therefore in this case he is not liable to be tried by the Inquisitorial Court, because he does not manifestly savour of heresy.
For their fourth argument, it is a false assumption to say that it is not possible for anyone to tread underfoot the Body of Christ unless he has some perverse and wrong belief concerning the Body of Christ. For a man may do this with a full knowledge of his sin, and with a firm belief that the Body of Christ is truly there. But he does it to please the devil, and that he may more easily obtain his desire from him. And though in every sin there is an error, it need not necessarily be an error of the understanding, which is heresy or a wrong belief concerning the faith; for it may be an erroneous use of some power which turns it to vicious purposes; and then it will only be the first of those five conditions which are necessary constituents of heresy, in accordance with which a heretic is rightly liable to the Inquisitorial Court.
And it is not a valid objection to say that an Inquisitor may, nevertheless, proceed against those who are denounced as heretics, or are under a light or a strong or a grave suspicion of heresy, although they do not appear to savour manifestly of heresy. For we answer that an Inquisitor may proceed against such in so far as they are denounced or suspected for heresy rightly so called; and this is the sort of heresy of which we are speaking (as we have often said), in which there is an error in the understanding, and the other four conditions are superadded. And the second of these conditions is that such error should consist in matters concerning the faith, or should be contrary to the true decisions of the Church in matters of faith and good behaviour and that which is necessary for the attainment of eternal life. For if the error be in some matter which does not concern the faith, as, for example, a belief that the sun is not greater than the earth, or something of that sort, then it is not a dangerous error. But an error against Holy Scripture, against the articles of the faith, or against the decision of the Church, as has been said above, is heresy (art. 24, q. 1, haec est fides).
Again, the determination of doubts respecting the faith belongs chiefly to the Church, and especially to the Supreme Pontiff, Christ’s Vicar, the successor of S. Peter, as is expressly stated (art. 24, q. 1, quotiens). And against the determination of the Church, as S. Thomas says, art. 2, q. 2, no Doctor or Saint maintains his own opinion; not S. Jerome nor S. Augustine nor any other. For just as he who obstinately argues against the faith is a heretic, so also is he who stubbornly maintains his opinion against the determination of the Church in matters concerning the faith and that which is necessary for salvation. For the Church herself has never been proved to be in error over matter of faith (as it is said in art. 24, q. 1, a recta, and in other chapters). And it is expressly said, that he who maintains anything against the determination of the Church, not in an open and honest manner, but in matters which concern faith and salvation, is a heretic. For he need not be a heretic because he disagrees over other matters, such as the separability of law from use in matters which are affected by use: this matter has been settled by Pope John XXII in his Extrauagantes, where he says that they who contradict this opinion are stubborn and rebellious against the Church, but not heretics.
The third condition required is that he who holds the error should be one who has professed the Catholic faith. For is a man has never professed the Christian faith, he is not a heretic but simply an infidel, like the Jews or the Gentiles who are outside the faith. Therefore S. Augustine says in the City of God: The devil, seeing the human race to be delivered from the worship of idols and devils, stirred up heretics who, under the guise of Christians, should oppose Christian doctrine. So for a man to be a heretic it is necessary that he should have received the Christian faith in baptism.
Fourthly, it is necessary that the man who so errs should retain some of the true belief concerning Christ, pertaining either to His divinity or to His humanity. For if he retains no part of the faith, he is more rightly to be considered an apostate than a heretic. In this way Julian was an apostate. For the two are quite different, though sometimes they are confused. For in this manner there are found to be men who, driven by poverty and various afflictions, surrender themselves body and soul to the devil, and deny the faith, on condition that the devil will help them in their need to the attainment of riches and honours.
For we Inquisitors have known some, of whom a few afterwards repented, who have behaved in this way merely for the sake of temporal gain, and not through any error in the understanding; wherefore they are not rightly heretics, nor even apostates in their hearts, as was Julian, though they must be reckoned as apostates.
They who are apostates in their heart and refuse to return to the faith are, like impenitent heretics, to be delivered to the secular Court. But if they are desirous of reconciliation, they are received back into the Church, like penitent heretics. See the chapter ad abolendam, § praesenti, de haeretic., lib. 6. Of the same opinion is S. Raymund in his work de Apostolica, cap. reuertentes, where he says that they who return from the perfidy of apostasy, though they were heretics, are to be received back like penitent heretics. And here the two are confused, as we have said. And he adds: Those who deny the faith through fear of death (that is, who deny the faith for the sake of temporal gain from the devil, but do not believe their error) are heretics in the sight of the law, but are not, properly speaking, heretics. And he adds: Although they have no erroneous belief, yet since the Church must judge by outward signs they are to be considered as heretics (not this fiction of law); and if they return, they are to be received as penitent heretics. For the fear of death, or the desire for temporal gain, is not sufficient to cause a constant man to deny the faith of Christ. Wherefore he concludes that it is more holy to die than to deny the faith or to be fed by idolatrous means, as S. Augustine says.
The judgement of witches who deny the faith would be the same; that when they wish to return they should be received as penitents, but otherwise they should be left to the secular Court. But they are by all means to be received back into the bosom of the Church when they repent; and are left to the secular Court if they will not return; and this is because of the temporal injuries which they cause, as will be shown in the methods of passing sentence. And all this may be done by the Ordinary, so that the Inquisitor can leave his duties to him, at least in a case of apostasy; for it is otherwise in other cases of sorcerers.
The fifth condition necessary for a man to be rightly thought a heretic is that he should obstinately and stubbornly persist in his error. Hence, according to S. Jerome, the etymological meaning of heresy is Choice. And again S. Augustine says: Not he who initiates or follows false doctrines, but he who obstinately defends them, is to be considered a heretic. Therefore if anyone does not evilly persist in believing some false doctrine, but errs through ignorance and is prepared to be corrected and to be shown that his opinion is false and contrary to Holy Scripture and the determination of the Church, he is not a heretic. For he was ready to be corrected when his error was pointed out to him. And it is agreed that every day the Doctors have various opinions concerning Divine matters, and sometimes they are contradictory, so that one of them must be false; and yet none of them are reputed to be false until the Church has come to a decision concerning them. See art. 24, q. 3, qui in ecclesia.
From all this is is concluded that the sayings of the Canonists on the words “savour manifestly of heresy” in the chapter accusatus do not sufficiently prove that witches and others who in any way invoke devils are subject to trial by the Inquisitorial Court; for it is only by a legal fiction that they judge such to be heretics. Neither is it proved by the words of the Theologians; for they call such persons apostates either in word or in deed, but not in their thoughts and their hearts; and it is of this last error that the words “savour of heresy” speak.
And though such persons should be judged to be heretics, it does not follow form this that a Bishop cannot proceed against them without an Inquisitor to a definite sentence, or punish them with imprisonment or torture. More than this, even when this decision does not seem enough to warrant the exemption of us Inquisitors from the duty of trying witches, still we are unwilling to consider that we are legally compelled to perform such duties ourselves, since we can depute the Diocesans to our office, at least in respect of arriving at a judgement.
For this provision is made in the Canon Law (c. multorum in prin. de haeret. in Clem.). There it says: As a result of a general complaint, and that this sort of Inquisition may proceed more fortunately and the inquiry into this crime be conducted more skilfully, diligently, and carefully, we order that this kind of case may be tried by the Diocesan Bishops as well as by the Inquisitors deputed by the Apostolic See, all carnal hatred or fear or any temporal affection of this sort being put aside; and so either of the above may move without the other, and arrest or seize a witch, placing her in safe custody in fetters and iron chains, if it seems good to him; and in this matter we leave the conduct of the affair to his own conscience; but there must be no negligence in inquiring into such matters in a manner agreeable to God and justice; but such witches must be thrust into prison rather as a matter of punishment than custody, or be exposed to torture, or be sentenced to some punishment. And a Bishop can proceed without an Inquisitor, or an Inquisitor without a Bishop; or, if either of their offices be vacant, their deputies may act independently of each other, provided that is is impossible for them to meet together for joint action within eight days of the time when the inquiry is due to commence; but if there be no valid reason for their not meeting together, the action shall be null and void in law.
The chapter proceeds to support our contention as follows: But if the Bishop or the Inquisitor, or either of their deputies, are unable or unwilling, for any of the reasons which we have mentioned, to meet together personally, they can severally depute their duties to each other, or else signify their advice and approval by letters.
From this it is clear that even in those cases where the Bishop is not entirely independent of the Inquisitor, the Inquisitor can depute the Bishop to act in his stead, especially in the matter of passing sentence: therefore we ourselves have decided to act according to this decision, leaving other Inquisitors to other districts to act as seems good to them.
Therefore in answer to the arguments, it is clear that witches and sorcerers have not necessarily to be tried by the Inquisitors. But as for the other arguments which seek to make it possible for the Bishops in their turn to be relieved from the trial of witches, and leave this to the Civil Court, it is clear that this is not so easy in their case as it is in that of the Inquisitors. For the Canon Law (c. ad abolendam, c. uergentis, and c. excommunicamus utrumque) says that in a case of heresy it is for the ecclesiastical judge to try and to judge, but for the secular judge to carry out the sentence and to punish; that is, when a capital punishment is in question, though it is otherwise with other penitential punishments.
It seems also that in the heresy of witches, though not in the case of other heresies, the Diocesans also can hand over to the Civil Courts the duty of trying and judging, and this for two reasons: first because, as we have mentioned in our arguments, the crime of witches is not purely ecclesiastical, being rather civil on account of the temporal injuries which they commit; and also because special laws are provided for dealing with witches.
Finally, it seems that in this way it is easiest to proceed with the extermination of witches, and that the greatest help is thus given to the Ordinary in the sight of that terrible Judge who, as the Scriptures testify, will exact the strictest account from and will most hardly judge those who have been placed in authority. Accordingly we will proceed on this understanding, namely, that the secular Judge can try and judge such cases, himself proceeding to the capital punishment, but leaving the imposition of any other penitential punishment to the Ordinary.
A Summary or Classification of the Matters Treated of in this Third Part.
In order, then, that the Judges both ecclesiastical and civil may have a ready knowledge of the methods of trying, judging and sentencing in these cases, we shall proceed under three main heads. First, the method of initiating a process concerning matters of the faith; second, the method of proceeding with the trial; and third, the method of bringing it to a conclusion and passing sentence on witches.
The first head deals with five difficulties. First, which of the three methods of procedure provided by the law is the most suitable. Second, the number of witnesses. Third, whether these can be compelled to take the oath. Fourth, the condition of the witnesses. Fifth, whether mortal enemies may be allowed to give evidence.
The second head contained eleven Questions. I. How witnesses are to be examined, and that there should always be five persons present. Also how witches are to be interrogated, generally and particularly. (This will be numbered the Sixth Question of the whole Part; but we alter the numeration here to facilitate reference by the reader). II. Various doubts are cleared up as to negative answers, and when a witch is to be imprisoned, and when she is to be considered as manifestly guilty of the heresy of witchcraft. III. The method of arresting witches. IV. Of two duties which devolve upon the Judge after the arrest, and whether the names of the deponents should be made known to the accused. V. Of the conditions under which an Advocate shall be allowed to plead for the defence. VI. What measures the Advocate shall take when the names of the witnesses are not made known to him, and when he wishes to protest to the Judge that the witnesses are mortal enemies of the prisoner. VII. How the Judge ought to investigate the suspicion of such mortal enmity. VIII. Of the points which the Judge must consider before consigning the prisoner to torture. IX. Of the method of sentencing the prisoner to examination by torture. X. Of the method of proceeding with the torture, and how they are to be tortured; and of the provisions against silence on the part of the witch. XI. Of the final interrogations and precautions to be observed by the Judge.
The third head contains first of all three Questions dealing with matters which the Judge must take into consideration, on which depends the whole method of passing sentence. First, whether a prisoner can be convicted by a trial of red-hot iron. Second, of the method in which all sentences should be passed. Third, what degrees of suspicion can justify a trial, and what sort of sentence ought to be passed in respect of each degree of suspicion. Finally, we treat of twenty methods of delivering sentence, thirteen of which are common to all kinds of heresy, and the remainder particular to the heresy of witches. But since these will appear in their own places, for the sake of brevity they are not detailed here.