Of the Various
Degrees of Overt Suspicion which render the Accused
liable to be Sentenced
BOTH
the old and the new legislature provide an answer to the
question as to in how many and what ways a person can be
held suspect of heresy or any other crime, and whether
they can be judged and sentenced by reason of such
suspicions. For the gloss on the chapter nos in
quemquam, which we quoted in the last Question, says
that there are four means of convicting a prisoner:
either by the depositions of witnesses in Court, or by
the evidence of the facts, or by reason of previous
convictions against the prisoner, or because of a grave
suspicion.
And the
Canonists note that suspicion is of three kinds. The
first of which the Canon says, “You shall not judge
anyone because he is suspect in your own opinion.” The
second is Probably; and this, but not the first, leads
to a purgation. The third is Grave, and leads to a
conviction; and S. Jerome understands this kind of
suspicion when he says that a wife may be divorced
either for fornication or for a reasonably suspected
fornication.
It must
further be noted that the second, or highly probable and
circumstantial, suspicion is admitted as a kind of
half-proof; that is to say, it helps to substantiate
other proofs. Therefore it can also lead to a judgement,
and not only to a purgation. And as for the grave
suspicion, which suffices for a conviction, note that it
is of two kinds. One is of the law and by the law, as
when the law fixes and determines some point against
which no proof can be admitted. For example, if a man
has given a woman a promise of matrimony, and copulation
has ensued, then matrimony is presumed, and no proof to
the contrary is admitted. The second is of the law but
not by the law, as where the law presumes but does not
determine a fact. For example, if a man has lived for a
long time with a woman, she is presumed to have had
connexion with him; but against this proofs are
admitted.
Applying this
to our discussion of the heresy of witches and to the
modern laws, we say that in law there are three degrees
of suspicion in the matter of heresy: the first slight,
the second great, and the third very great.
The first is
in law called a light suspicion. Of this it is said in
the chapter Accusatus, de Haeret. Lib. 6: If the
accused has incurred only a light and small suspicion,
and if she should again fall under that suspicion,
although she is to be severely punished for this, she
ought not to suffer the punishment of those who have
relapsed into heresy. And this suspicion is called small
or light, both because it can be removed by a small and
light defence, and because it arises from small and
light conjectures. Therefore it is called small, because
of the small proofs of it; and light, because of the
light conjectures.
As an example
of simple heresy, if people are found to be meeting
together secretly for the purpose of worship, or
differing in their manner of life and behaviour from the
usual habits of the faithful; or if they meet together
in sheds and barns, or at the more Holy Seasons in the
remoter fields or woods, by day or by night, or are in
any way found to separate themselves and not to attend
Mass at the usual times or in the usual manner, or form
secret friendships with suspected witches: such people
incur at least a light suspicion of heresy, because it
is proved that heretics often act in this manner. And of
this light suspicion the Canon says: They who are by a
slight argument discovered to have deviated from the
teaching and path of the Catholic religion are not to be
classed as heretics, nor is a sentence to be pronounced
against them.
Henry of
Segusio agrees with this in his Summa; de
Praesumptione, where he says: It is to be noted that
although a heretic be convicted by a slight argument of
that matter of which he is suspected, he is not on that
account to be considered a heretic; and he proves it by
the above reasoning.
The second or
grave suspicion is in law called grave or vehement, and
of this the above Canon (Accusatus) again says:
One who is accused or suspected of heresy, against whom
a grave or vehement suspicion of this crime has arisen,
etc. And it goes on: And these are not two kinds but the
same kind of suspicion. Giovanni d’Andrea also says:
Vehement is the same as strong, as the Archdeacon says
speaking of this Canon. Also Bernardus Papiensis and
Huguccio say that vehement is the same as strong or
great. S. Gregory also, in the First Book of his Morals
says: A vehement wind sprang up. Therefore we say that
anyone has a vehement case when he has a strong one. So
much for this.
Therefore a
great suspicion is called vehement or strong; and it is
so called because it is dispelled only by a vehement and
strong defence, and because it arises from great,
vehement, and strong conjectures, arguments, and
evidence. As, to take an example of simple heresy, when
people are found to shelter known heretics, and show
favour to them, or visit and associate with them and
give gifts to them, receive them into their houses and
protect them, and such like: such people are vehemently
suspected of heresy. And similarly in the heresy of
witches, they are brought under suspicion when they
share in the crimes of witches.
And here are
especially to be noted those men or women who cherish
some inordinate love or excessive hatred, even if they
do not use to work any harm against men or animals in
other ways. For, as we have said, those who behave in
this way in any heresy are strongly to be suspected. And
this is shown by the Canon where it says that there is
no doubt that such persons act in this way out of some
heretical sympathy.
The third and
greatest suspicion is in law called grave or violent:
for the Canon and the glosses of the Archdeacon and
Giovanni d’Andrea explain that the word vehement does
not mean the same as the word violent. And of this
suspicion the Canon says (dist. 34): This presumption or
suspicion is called violent because it violently
constrains and compels a Judge to believe it, and cannot
be cast off by any evasion; and also because it arises
from violent and convincing conjectures.
For example,
in simple heresy, if persons are found to show a
reverent love for heretics, to receive consolation or
communion from them, or perpetrate any other such matter
in accordance with their rites and ceremonies: such
persons would fall under and be convicted of a violent
suspicion of heresy and heretical beliefs. (See many
chapters on this subject in Book VI of the Canon.) For
there is no doubt that such persons act in this way out
of a belief in some heresy.
It is the
same, as regards the heresy of witches, with those who
perform and persist in performing any of the actions
which pertain to the rites of witches. Now these are of
various kinds. Sometimes it is only some threatening
speech, such as “You shall soon feel what will happen
to you,” or something similar. Sometimes it is a
touch, just laying their hands curiously on a man or a
beast. Sometimes it is only a matter of being seen, when
they show themselves by day or by night to others who
are sleeping in their beds; and this they do when they
wish to bewitch men or beasts. But for raising
hailstorms they observe various other methods and
ceremonies, and perform various ritual actions round
about a river, as we have shown before where we
discussed the manner and methods of working witchcraft.
When such are found and are publicly notorious they are
convicted of a violent suspicion of the heresy of
witchcraft; especially when some effect of witchcraft
has followed upon their actions, either immediately or
after some interval. For then there is direct evidence
when any instruments of witchcraft are found hidden in
some place. And although when some interval of time has
elapsed the evidence of the fact is not so strong, such
a person still remains under strong suspicion of
witchcraft, and therefore much more of simple heresy.
And if it be
asked whether the devil cannot inflict injury upon men
and beasts without the means of a woman being seen in a
vision or by her touch, we answer that he can, when God
permits it. But the permission of God is more readily
granted in the case of a creature that was dedicated to
God, but by denying the faith has consented to other
horrible crimes; and therefore the devil more often uses
such means to harm creatures. Further, we may say that,
although the devil can work without a witch, he yet very
much prefers to work with one, for the many reasons
which we showed earlier in this work.
To sum up our
conclusions on this matter, it is to be said that,
following the above distinctions, those who are
suspected of the heresy of witchcraft are separated into
three categories, since some are lightly, some strongly,
and some gravely suspected. And they are lightly
suspected who act in such a way as to give rise to a
small or light suspicion against hem of this heresy. And
although, as has been said, a person who is found to be
suspected in this way is not to be branded as a heretic,
yet he must undergo a canonical purgation, or he must be
caused to pronounce a solemn abjuration as in the case
of one convicted of a slight heresy.
For the Canon
(cap. excommunicamus) says: Those who have been
found to rest under a probable suspicion (that is, says
Henry of Segusio, a light suspicion), unless, having
respect to the nature of the suspicion and the quality
of their persons, they should prove their innocent by a
fitting purgation, they are to be stricken with the
sword of anathema as a worthy satisfaction in the sight
of all men. And if they continue obstinate in their
excommunication for the period of a year, they are to
utterly condemned as heretics.
And note
that, in the purgation imposed upon them, whether or not
they consent to it, and whether or not they fail in it,
they are throughout to be judged as reputed heretics on
whom a canonical purgation is to be imposed.
And that a
person under this light suspicion can and should be
caused to pronounce a solemn abjuration is shown in the
chapter Accusatus, where it says: A person
accused or suspected of heresy, against whom there is a
strong suspicion of this crime, if he abjures the heresy
before the Judge and afterwards commits it, then, by a
sort of legal fiction, he shall be judged to have
relapsed into heresy, although the heresy was not proved
against him before his abjuration. But if the suspicion
was in the first place a small or light one, although
such a relapse renders the accused liable to severe
punishment, yet he is not to suffer the punishment of
those who relapse into heresy.
But those who
are strongly suspected, that is, those who have acted in
such a way as to engender a great and strong suspicion;
even those are not necessarily heretics or to be
condemned as such. For it is expressly stated in the
Canon that no one is to be condemned of so great a crime
by reason of a strong suspicion. And it says:
Therefore we
order that, when the accused is only under suspicion,
even if it be a strong one, we do not wish him to be
condemned of so grave a crime; but such a one so
strongly suspected must be commanded to abjure all
heresy in general, and in particular that of which he is
strongly suspected.
But if he
afterwards relapses either into his former heresy or
into any other, or if he associates with those whom he
knows to be witches or heretics, or visits them,
receives, consults with, forgives, or favours them, he
shall not escape the punishment of backsliders,
according to the chapter Accusatus. For it says
there: He who has been involved in one kind or sect of
heresy, or has erred in one article of the faith or
sacrament of the Church, and has afterwards specifically
and generally abjured his heresy: if thereafter he
follows another kind or sect of heresy, or errs in
another article or sacrament of the Church, it is our
will that he be judged a backslider. He, therefore, who
is known to have lapsed into heresy before his
abjuration, if after his abjuration he receives
heretics, visits them, gives or sends them presents or
gifts, or shows favour to them, etc., he is worthily and
truly to judged a backslider; for by this proof there is
no doubt that he was in the first place guilty. Such is
the tenor of the Canon.
From these
words it is clear that there are three cases in which a
person under strong suspicion of heresy shall, after his
abjuration, be punished as a backslider. The first is
when he falls back into the same heresy of which he was
strongly suspected. The second is when he has abjured al
heresy in general, and yet lapses into another heresy,
even if he has never before been suspected or accused of
that heresy. The third is when he receives and shows
favour to heretics. And this last comprises and embraces
many cases.
But it is
asked what should be done when a person who has fallen
under so strong a suspicion steadily refuses to comply
with his Judge’s order to abjure his heresy: is he to
be at once handed over to the secular Court to be
punished? We answer that by no means must this be done;
for the Canon (ad abolendam) expressly speaks,
not of suspects, but of those who are manifestly taken
in heresy. And more rigorous action is to be employed
against those who are manifestly taken than against
those who are only suspected.
And if it is
asked, How then is such a one to be proceeded against?
We answer that the Judge must proceed against him in
accordance with the chapter excommunicamus, and
he must be excommunicated. And if he continues obstinate
after a year’s excommunication, he is to be condemned
as a heretic.
There are
others again who are violently or gravely suspected,
whose actions give rise to a violent suspicion against
them; and such a one is to be considered as a heretic,
and throughout he is to be treated as if he were taken
in heresy, in accordance with the Canon Law. For these
either confess their crime or not; and if they do, and
wish to return to the faith and abjure their heresy,
they are to be received back into penitence. But if they
refuse to abjure, they are to be handed over to the
secular Court for punishment.
But if he
does not confess his crime after he has been convicted,
and does not consent to abjure his heresy, he is to be
condemned as an impenitent heretic. For a violent
suspicion is sufficient to warrant a conviction, and
admits no proof to the contrary.
Now this
discussion deals with simple heresy, where there is no
direct or indirect evidence of the fact, as will be
shown in the sixth method of passing sentence, where a
man is to be condemned as a heretic even though he may
not actually be one: then how much more is it applicable
to the heresy of witches, where there is always in
addition either the direct evidence of bewitched
children, men, or animals, or the indirect evidence of
instruments of witchcraft which have been found.
And although
in the case of simple heresy those who are penitent and
abjure are, as has been said, admitted to penitence and
imprisonment for life; yet in this heresy, although the
ecclesiastic Judge may receive the prisoner into
penitence, yet the civil Judge can, because of her
temporal injuries, that is to say, the harms she has
done to men, cattle, and goods, punish her with death;
nor can the ecclesiastic Judge prevent this, for even if
he does not hand her over to be punished, yet he is
compelled to deliver her up at the request of the civil
Judge.
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