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.