Who are the Fit and
Proper Judges in the Trial of Witches?
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.
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