Of the Number of
Witnesses
Since we have said that in the second method the
evidence of the witnesses is to be written down, it is
necessary to know how many witnesses there should be,
and of what condition. The question is whether a Judge
may lawfully convict any person of the heresy of
witchcraft on the evidence of two legitimate witnesses
whose evidence is entirely concordant, or whether more
than two are necessary. And we say that the evidence of
witnesses is not entirely concordant when it is only
partially so; that is, when two witnesses differ in
their accounts, but agree in the substance or effect: as
when one says “She bewitched my cow,” and the other
says, “She bewitched my child,” but they agree as to
the fact of witchcraft.
But here we
are concerned with the case of two witnesses being in
entire, not partial, agreement. And the answer is that,
although two witnesses seem to be enough to satisfy the
rigour of law (for the rule is that that which is sworn
to by two or three is taken for the truth); yet in a
charge of this kind two witnesses do not seem sufficient
to ensure an equitable judgement, on account of the
heinousness of the crime in question. For the proof of
an accusation ought to be clearer than daylight; and
especially ought this to be so in the case of the grave
charge of heresy.
But it may be
said that very little proof is required in a charge of
this nature, since it takes very little argument to
expose a person's guilt; for it is said in the Canon de
Haereticis, lib. II, that a man makes himself a
heretic if in the least of his opinions he wanders from
the teaching and the path of the Catholic religion. We
answer that this is true enough with reference to the
presumption that a person is a heretic, but not as
regards a condemnation. For in a charge of this sort the
usual order of judicial procedure is cut short, since
the defendant does not see the witnesses take the oath,
nor are they made known to him, because this might
expose them to grave danger; therefore, according to the
statute, the prisoner is not permitted to know who are
his accusers. But the Judge himself must by virtue of
his office, inquire into any personal enmity felt by the
witnesses towards the prisoner; and such witnesses
cannot be allowed, as will be shown later. And when the
witnesses give confused evidence on account of something
lying on their conscience, the Judge is empowered to put
them through a second interrogatory. For the less
opportunity the prisoner has to defend himself, the more
carefully and diligently should the Judge conduct his
inquiry.
Therefore,
although there are two legitimate and concordant
witnesses against a person, even so I do not allow that
this would be sufficient warrant for a Judge to condemn
a person on so great a charge; but if the prisoner is
the subject of an evil report, a period should be set
for his purgation; and if he is under strong suspicion
on account of the evidence of two witnesses, the Judge
should make him abjure the heresy, or question him, or
defer his sentence. For it does not seem just to condemn
a man of good name on so great a charge on the evidence
of only two witnesses, though the case is otherwise with
a person of bad reputation. This matter is fully dealt
with in the Canon Law of heretics, where it is set down
that the Bishop shall cause three or more men of good
standing to give evidence on oath to speak the truth as
to whether they have any knowledge of the existence of
heretics in such a parish.
Again it may
be asked whether the Judge can justly condemn a person
of such heresy only on the evidence of witnesses who in
some respects differ in their evidence, or merely on the
strength of a general accusation. We answer that he
cannot do so on either of the above grounds. Especially
since the proofs of a charge ought, as we have said, to
be clearer than daylight; and in this particular charge
no one is to be condemned on merely presumptive
evidence. Therefore in the case of a prisoner who is the
subject of a general accusation, a period of purgation
shall be set for him; and in the case of one who is
under strong suspicion arising from the evidence of
witnesses, he shall be made to abjure his heresy. But
when, in spite of certain discrepancies, the witnesses
agree in the main facts, then the matter shall rest with
the Judge's discretion; and indirectly the question
arises how often the witnesses can be examined.
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