What Kind of
Defence may be Allowed, and of the Appointment of an
Advocate. This is the Fifth Action
IF,
therefore, the accused asked to be defended, how can
this be admitted when the names of the witnesses are
kept altogether secret? It is to be said that three
considerations are to be observed in admitting any
defence. First, that an Advocate shall be allotted to
the accused. Second, that the names of the witnesses
shall not be made known to the Advocate, even under an
oath of secrecy, but that he shall be informed of
everything contained in the depositions. Third, the
accused shall as far as possible be given the benefit of
every doubt, provided that this involves no scandal to
the faith nor is in any way detrimental to justice, as
will be shown. And in like manner the prisoner’s
procurator shall have full access to the whole process,
only the names of the witnesses and deponents being
suppressed; and the Advocate can act also in the name of
procurator.
As to the
first of these points: it should be noted that an
Advocate is not to be appointed at the desire of the
accused, as if he may choose which Advocate he will
have; but the Judge must take great care to appoint
neither a litigious nor an evil-minded man, nor yet one
who is easily bribed (as many are), but rather an
honourable man to whom no sort of suspicion attaches.
And the Judge
ought to note four points, and if the Advocate be found
to conform to them, he shall be allowed to plead, but
not otherwise. For first of all the Advocate must
examine the nature of the case, and then if he finds it
a just one he may undertake it, but if he finds it
unjust he must refuse it; and he must be very careful
not to undertake an unjust or desperate case. But if he
has unwittingly accepted the brief, together with a fee,
from someone who wishes to do him an injury, but
discovers during the process that the case is hopeless,
then he must signify to his client (that is, the
accused) that he abandons the case, and must return the
fee which he has received. This is the opinion of
Godfrey of Fontaines, which is wholly in conformity with
the Canon de jud. i, rem non novam. But Henry of
Segusio holds an opposite view concerning the return of
the fee in a case in which the Advocate has worked very
hard. Consequently if an Advocate has wittingly
undertaken to defend a prisoner whom he knows to be
guilty, he shall be liable for the costs and expenses (de
admin. tut. i, non tamen est ignotum).
The second
point to be observed is that in his pleading he should
conduct himself properly in three respects. First, his
behaviour must be modest and free from prolixity or
pretentious oratory. Secondly, he must abide by the
truth, not bringing forward any fallacious arguments or
reasoning, or calling false witnesses, or introducing
legal quirks and quibbles if he be a skilled lawyer, or
bringing counter-accusations; especially in cases of
this sort, which must be conducted as simply and
summarily as possible. Thirdly, his fee must be
regulated by the usual practice of the district.
But to return
to our point; the Judge must make the above conditions
clear to the Advocate, and finally admonish him not to
incur the charge of defending heresy, which would make
him liable to excommunication.
And it is not
a valid argument for him to say to the Judge that he is
not defending the error, but the person. For he must not
by any means so conduct his defence as to prevent the
case from being conducted in a plain and summary manner,
and he would be doing so if he introduced any
complications or appeals into it; all which things are
disallowed together. For it is granted that he does not
defend the error; for in that case he would be more
damnably guilty than the witches themselves, and rather
a heresiarch than a heretical wizard. Nevertheless, if
he unduly defends a person already suspect of heresy, he
makes himself as it were a patron of that heresy, and
lays himself under not only a light but a strong
suspicion, in accordance with the manner of his defence;
and ought publicly to abjure that heresy before the
Bishop.
We have put
this matter at some length, and it is not to be
neglected by the Judge, because much danger may arise
from an improper conducting of the defence by an
Advocate or Procurator. Therefore, when there is any
objection to the Advocate, the Judge must dispense with
him and proceed in accordance with the facts and the
proofs. But when the Advocate for the accused is not
open to any objection, but is a zealous man and lover of
justice, then the Judge may reveal to him the names of
the witnesses, under an oath of secrecy.
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