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.
Part III, General & Introductory
was transcribed by Wicasta Lovelace.
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