What Course the
Advocate should Adopt when the Names of the Witnesses
are not Revealed to him. Ths Sixth Action
BUT
it may be asked: What, then, should the Advocate acting
a Procurator for the accused do, when the names of the
witnesses are withheld from both himself and his client,
although the accused earnestly desires that they should
be made known? We answer that he should obtain
information from the Judge on every point of the
accusation, which must be given to him at his request,
only the names of the witnesses being suppressed; and
with this information he should approach the accused
and, if the matter involves a very grave charge, exhort
him to exercise all the patience which he can.
And if the
accused again and again insists that she should know the
names of the witnesses against her, he can answer her as
follows: You can guess from the charges which are made
against you who are the witnesses. For the child or
beast of so and so has been bewitched; or to such a
woman or man, because they refused to lend you something
for which you asked, you said, "You shall know that
it would have been better to have agreed to my
request," and they bear witness that in consequence
of your words the person was suddenly taken ill; and
facts are stronger evidence than words. And you know
that you have a bad reputation, and have for a long time
been suspected of casting spells upon and injuring many
men. And talking in this manner, he may finally induce
her to enter a plea that they had borne witness against
her from motives of hatred; or to say, "I confess
that I did say so, but not with any intent to do
harm."
Therefore the
Advocate must first lay before the Judge and his
assessors this plea of personal enmity, and the Judge
must inquire into it. And if it should be found to be a
case of mortal enmity, as that there has been some
attempted or accomplished murder committed by the
husbands or kindred of the parties, or that someone of
one party has been charged with a crime by someone of
the other party, so that he fell into the hands of
public justice, or that serious wounds have resulted
from quarrels and brawls between them; then the upright
and careful Judge will consult with his assessors
whether the accused of the deponent was the aggravating
party. For if, for example, the husband or friends of
the accused have unjustly oppressed the friends of the
deponent, then if there is no evidence of the fact that
children or animals or men have been bewitched, and if
there are no other witnesses, and the accused is not
even commonly suspected of witchcraft, in that case it
is presumed that the depositions were laid against her
from motives of vengeance, and she is to be discharged
as innocent and freely dismissed, after having been duly
cautioned against seeking to avenge herself, in the
manner which is usually used by Judges.
The following
case may be put. Katharina’s child, or she herself, is
bewitched, or she has suffered much loss of her cattle;
and she suspects the accused because her husband or
brothers had previously brought on an unjust accusation
against her own husband or brother. Here the cause of
enmity is twofold on the part of the deponent, having
its root both in her own bewitchment and in the unjust
accusation brought against her husband or brother. Then
ought her deposition to be rejected or not? From one
point of view it seems that it should, because she is
actuated by enmity; from another point of view it should
not, because there is the evidence of the fact in her
bewitchment.
We answer
that if in this case there are no other deponents, and
the accused is not even under common suspicion, then her
depositions cannot be allowed, but must be rejected; but
if the accused is rendered suspect, and if the disease
is not due to natural causes but to witchcraft (and we
shall show later how this can be distinguished), she is
to be subjected to a canonical purgation.
If it be
asked further whether the other deponents must bear
witness to the evidence of the fact as experienced by
themselves or others, or only to the public reputation
of the accused; we answer that, if they give evidence of
the fact, so much the better. But if they only give
evidence as to her general character, and the matter
stands so, then, although the Judge must reject that
deponent on the grounds of personal enmity, yet he shall
take the evidence of the fact, and of her bad reputation
given by the other witnesses, as proof that the accused
must be strongly suspect, and on these grounds he can
sentence her to a threefold punishment: namely, to a
canonical purgation because of her reputation; or to an
abjuration, because of the suspicion under which she
rests, and there are various forms of abjuration for
various degrees of suspicion, as will be shown in the
fourth method of passing sentence; or, because of the
evidence of the fact, and if she confesses her crime and
is penitent, she shall not be handed over to the secular
branch for capital punishment, but be sentenced by the
ecclesiastical Judge to imprisonment for life. But
notwithstanding the fact that she has been sentenced to
imprisonment for life by the ecclesiastical Judge, the
secular Judge can, on account of the temporal injuries
which she has committed, deliver her to be burned. But
all these matters will be made clear later when we deal
with the sixth method of passing sentence.
To sum up:
Let the Judge first take care not to lend too easy
belief to the Advocate when he pleads mortal enmity on
behalf of the accused; for in these cases it is very
seldom that anyone bears witness without enmity, because
witches are always hated by everybody. Secondly, let him
take note that there are four ways by which a witch can
be convicted, namely, by witnesses, by direct evidence
of the fact, and by her own confession. And if she is
detained on account of a general report, she can be
convicted by the evidence of witnesses; if on account of
definite suspicion, the direct or indirect evidence of
the facts can convict her, and by reason of these the
suspicion may be judged to be either light or strong or
grave. All this is when she does not confess; but when
she does, the case can proceeds as has been said.
Thirdly, let
the Judge make use of all the foregoing circumstances to
meet the plea of the Advocate, whether the accused is
charged only by reason of a general report, or whether
there are also certain evidences to support the charge
by which she incurs slight or strong suspicion; and then
he will be able to answer the Advocate’s allegation of
personal enmity, which is the first line of defence
which he may assume.
But when the
Advocate assumes the second line of defence, admitting
that the accused has used such words against the
deponent as, "You shall soon know what is going to
happen to you," or "You will wish soon enough
that you had lent or sold me what I asked for," or
some such words; and submits that, although the deponent
afterwards experienced some injury either to this person
or his property, yet it does not follow from this that
the accused was the cause of it as a witch, for
illnesses may be due to various different causes. Also
he submits that it is a common habit of women to quarrel
together with such words, etc.
The Judge
ought to answer such allegations in the following
manner. If the illness is due to natural causes, then
the excuse is good. But the evidence indicates the
contrary; for it cannot be cured by any natural remedy;
or in the opinion of the physicians the illness is due
to witchcraft, or is what is in common speech called a
Night-scathe. Again, perhaps other enchantresses are of
the opinion that it is due to witchcraft. Or because it
came suddenly, without any previous sickening, whereas
natural diseases generally develop gradually. Or perhaps
because the plaintiff had found certain instruments of
witchcraft under his bed or in his clothes or elsewhere,
and when these were removed he was suddenly restored to
health, as often happens, as we showed in the Second
Part of this work where we treated of remedies. And by
some such answer as this the Judge can easily meet this
allegation, and show that the illness was due rather to
witchcraft than to any natural causes, and that the
accused must be suspected of causing such witchcraft, by
reason of her threatening words. In the same way, if
someone said, "I wish your barn would be burned
down," and this should afterwards happen, it would
engender a grave suspicion that the person who had used
that threat had caused the barn to be set on fire, even
if another person, and not he himself, had actually set
light to it.
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