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.
Part III, Third Head, Question XVIII
was transcribed by Wicasta Lovelace.
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