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 d’Andrea 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 d’Andrea 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
Judge’s 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 year’s
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.