Since we have said that in the second
method the evidence of the witnesses is to be written down, it is
necessary to know how many witnesses there should be, and of what
condition. The question is whether a Judge may lawfully convict any
person of the heresy of witchcraft on the evidence of two legitimate
witnesses whose evidence is entirely concordant, or whether more than
two are necessary. And we say that the evidence of witnesses is not
entirely concordant when it is only partially so; that is, when two
witnesses differ in their accounts, but agree in the substance or
effect: as when one says “She bewitched my cow,” and the
other says, “She bewitched my child,” but they agree as
to the fact of witchcraft.
But here we
are concerned with the case of two witnesses being in entire, not
partial, agreement. And the answer is that, although two witnesses
seem to be enough to satisfy the rigour of law (for the rule is that
that which is sworn to by two or three is taken for the truth); yet
in a charge of this kind two witnesses do not seem sufficient to
ensure an equitable judgement, on account of the heinousness of the
crime in question. For the proof of an accusation ought to be clearer
than daylight; and especially ought this to be so in the case of the
grave charge of heresy.
But it may be
said that very little proof is required in a charge of this nature,
since it takes very little argument to expose a person's guilt; for
it is said in the Canon de Haereticis, lib. II, that a man
makes himself a heretic if in the least of his opinions he wanders
from the teaching and the path of the Catholic religion. We answer
that this is true enough with reference to the presumption that a
person is a heretic, but not as regards a condemnation. For in a
charge of this sort the usual order of judicial procedure is cut
short, since the defendant does not see the witnesses take the oath,
nor are they made known to him, because this might expose them to
grave danger; therefore, according to the statute, the prisoner is
not permitted to know who are his accusers. But the Judge himself
must by virtue of his office, inquire into any personal enmity felt
by the witnesses towards the prisoner; and such witnesses cannot be
allowed, as will be shown later. And when the witnesses give confused
evidence on account of something lying on their conscience, the Judge
is empowered to put them through a second interrogatory. For the less
opportunity the prisoner has to defend himself, the more carefully
and diligently should the Judge conduct his inquiry.
Therefore, although there are two legitimate and
concordant witnesses against a person, even so I do not allow that
this would be sufficient warrant for a Judge to condemn a person on
so great a charge; but if the prisoner is the subject of an evil
report, a period should be set for his purgation; and if he is under
strong suspicion on account of the evidence of two witnesses, the
Judge should make him abjure the heresy, or question him, or defer
his sentence. For it does not seem just to condemn a man of good name
on so great a charge on the evidence of only two witnesses, though
the case is otherwise with a person of bad reputation. This matter is
fully dealt with in the Canon Law of heretics, where it is set down
that the Bishop shall cause three or more men of good standing to
give evidence on oath to speak the truth as to whether they have any
knowledge of the existence of heretics in such a parish.
Again it may be asked whether the Judge can justly
condemn a person of such heresy only on the evidence of witnesses who
in some respects differ in their evidence, or merely on the strength
of a general accusation. We answer that he cannot do so on either of
the above grounds. Especially since the proofs of a charge ought, as
we have said, to be clearer than daylight; and in this particular
charge no one is to be condemned on merely presumptive evidence.
Therefore in the case of a prisoner who is the subject of a general
accusation, a period of purgation shall be set for him; and in the
case of one who is under strong suspicion arising from the evidence
of witnesses, he shall be made to abjure his heresy. But when, in
spite of certain discrepancies, the witnesses agree in the main
facts, then the matter shall rest with the Judge's discretion; and
indirectly the question arises how often the witnesses can be
examined.