Of the Manner of
Pronouncing a Sentence which is Final and Definitive
IN
proceeding to treat of those cases in which the secular
Judge by himself can arrive at a judgement and pronounce
a sentence without the co-operation of the Diocesan and
Ordinaries, we necessarily presuppose that not only is
it consistent with the protection of the faith and of
justice that we Inquisitors should be relieved of the
duty of passing sentence in these cases, but in the same
sincerity of spirit we endeavour to relieve the
Diocesans also from that duty; not in any desire to
detract from their authority and jurisdiction, for if
they should elect to exercise their authority in such
matters, it would follow that we Inquisitors must also
concur in it.
It must be
remembered, also, that this crime of witches is not
purely ecclesiastic; therefore the temporal potentates
and Lords are not debarred from trying and judging it.
At the same time was shall show that in some cases they
must not arrive at a definitive judgement without the
authorisation of the Diocesans.
But first we
must consider the sentence itself: secondly, the nature
of its pronouncement; and thirdly, in how many ways it
is to be pronounced.
With regard
to the first of these questions, S. Augustine says that
we must not pronounce sentence against any person unless
he has been proved guilty, or has confessed. Now there
are three kinds of sentence - interlocutory, definitive,
and preceptive. These are explained as follows by S.
Raymond. An interlocutory sentence is one which is given
not on the main issue of the case, but on some other
side issues which emerge during the hearing of a case;
such as a decision whether or not a witness is to be
disallowed, or whether some digression is to be
admitted, and such matters as that. Or it may perhaps be
called interlocutory because it is delivered simply by
word of mouth without the formality of putting it into
writing.
A definitive
sentence is one which pronounces a final decision as to
the main issue of the case.
A preceptive
sentence is one which is pronounced by a lower authority
on the instruction of a higher. But we shall be
concerned with the first two of these, and especially
with the definitive sentence.
Now it is
laid down by law that a definitive sentence which has
been arrived at without a due observance of the proper
legal procedure in trying a case is null and void in
law; and the legal conduct of a case consists in two
things. One concerns the basis of the judgement; for
there must be a due provision for the hearing of
arguments both for the prosecution and the defence, and
a sentence arrived at without such a hearing cannot
stand. The other is not concerned with the basis of the
judgement, but provides that the sentence must not be
conditional; for example, a claim for possession should
not be decided conditionally upon some subsequent claim
of property; but where there is no question of such an
objection the sentence shall stand.
But in the
case we are considering, which is a process on behalf of
the faith against a charge of heresy (though the charge
is a mixed one), the procedure is straighforward and
summary. That is to say, the Judge need not require a
writ, or demand that the case should be contested. But
he must allow opportunity for the necessary proofs, and
issue his citation, and exact the protestation of the
oath concerning calumny, etc. Therefore there has lately
been a new law made as to the method of procedure in
such cases.
To proceed to
our second consideration, namely, of the nature of the
pronouncement of the sentence, it must be noted that it
should be pronounced by the Judge and no one else,
otherwise it is not valid. Also the Judge must be
sitting in a public and honourable place; and he must
pronounce it in the day-time and not in the darkness;
and there are other conditions to be observed; for
example, the sentence must not be promulgated upon a
Holy Day, nor yet merely delivered in writing.
Yet it is to
be noted that since, as we have said, this case is
conducted in a simple and summary manner, it may
lawfully be conducted on Holy Days for the sake of the
convenience of the public, and the Judge may cut short
any digressions. Therefore the Judge may, if he pleases,
act in such a manner, and even pass sentence without
putting it in writing. For we are authoritatively
informed that there are cases in which a sentence is
valid without its being put into writing, as, for
example, when such is the custom of any particular
locality or Court. Also there is excellent precedent for
a Bishop, when he is the Judge, allowing the sentence to
be pronounced by some other person.
Note again
that, although in criminal actions the execution of the
sentence is not to be delayed, this rule does not hold
good in four cases, with two of which we are here
concerned. First, when the prisoner is a pregnant woman;
and then the sentence shall be delayed until she has
given birth. Secondly, when the prisoner has confessed
her crime, but has afterwards denied it again: that is
to say, when the way which we explained in the
Fourteenth Question.
Now before we
proceed to our third consideration, namely, the
different methods of passing sentence which we shall
proceed to treat of up to the end of this work, we must
first make some remarks about the various ways in which
a prisoner is rendered suspect, from which the various
methods of passing sentence follow as a consequence.
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