What is to be done
after the Arrest, and whether the Names of the Witnesses
should be made Known to the Accused. This is the Fourth
Action
THERE are two matters to be attended to after the
arrest, but it is left to the Judge which shall be taken
first; namely, the question of allowing the accused to
be defended, and whether she should be examined in the
place of torture, though not necessarily in order that
she should be tortured. The first is only allowed when a
direct request is made; the second only when her
servants and companions, if she has any, have first been
examined in the house.
But let us
proceed in the order as above. If the accused says that
she is innocent and falsely accused, and that she wishes
to see and hear her accusers, then it is a sign that she
is asking to defend herself. But it is an open question
whether the Judge is bound to make the deponents known
to her and bring them to confront her face to face. For
here let the Judge take note that he is not bound either
to publish the names of the deponents or to bring them
before the accused, unless they themselves should freely
and willingly offer to come before the accused and lay
their depositions in her presence And it is by reason of
the danger incurred by the deponents that the Judge is
not bound to do this. For although different Popes have
had different opinions on this matter, none of them has
ever said that in such a case the Judge is bound to make
known to the accused the names of the informers or
accusers (but here we are not dealing with the case of
an accuser). On the contrary, some have thought that in
no case ought he to do so, while others have thought
that he should in certain circumstances.
But, finally,
Bonifice VIII decreed as follows: If in a case of heresy
it appear to the Bishop or Inquisitor that grave danger
would be incurred by the witnesses of informers on
account of the powers of the persons against whom they
lay their depositions, should their names be published,
he shall not publish them. But if there is no danger,
their names shall be published just as in other cases.
Here it is to
be noted that this refers not only to a Bishop or
Inquisitor, but to any Judge conducting a case against
witches with the consent of the Inquisitor or Bishop;
for, as was shown in the introductory Question, they can
depute their duties to a Judge. So that any such Judge,
even if he be secular, has the authority of the Pope,
and not only of the Emperor.
Also a
careful Judge will take notice of the powers of the
accused persons; for these are of three kinds, namely,
the power of birth and family, the power of riches, and
the power of malice. And the last of these is more to be
feared than the other two, since it threatens more
danger to the witnesses if their names are made known to
the accused. The reason for this is that it is more
dangerous to make known the names of the witnesses to an
accused person who is poor, because such a person has
many evil accomplices, such as outlaws and homicides,
associated with him, who venture nothing but their own
persons, which is not the case with anyone who is nobly
born or rich, and abounding in temporal possessions. And
the kind of danger which is to be feared is explained by
Pope John XXII as the death of cutting off of themselves
or their children or kindred, or the wasting of their
substance, or some such matter.
Further, let
the Judge take notice that, as he acts in this matter
with the authority of the Supreme Pontiff and the
permission of the Ordinary, both he himself and all who
are associated with him at the depositions, or
afterwards at the pronouncing of the sentence, must keep
the names of the witnesses secret, under pain of
excommunication. And it is in the power of the Bishop
thus to punish him or them if they do otherwise.
Therefore he should very implicitly warn them not to
reveal the name from the very beginning of the process.
Wherefore the
above decrees of Pope Bonifice VIII goes on to say: And
that the danger to those accusers and witnesses may be
the more effectively met, and the inquiry conducted more
cautiously, we permit, by the authority of this statute,
that the Bishop or Inquisitors (or, as we have said, the
Judge) shall forbid all those who are concerned in the
inquiry to reveal without their permission any secrets
which they have learned from the Bishop or Inquisitors,
under pain of excommunication, which they may incur by
violating such secrets.
It is further
to be noted that just as it is a punishable offence to
publish the names of witnesses indiscreetly, so also it
is to conceal them without good reason from, for
instance, such people as have a right to know them, such
as the lawyers and assessors whose opinion is to be
sought in proceeding to the sentence; in the same way
the names must not be concealed when it is possible to
publish them without risk of any danger to the
witnesses. On this subject the above decree speaks as
follows, towards the end: We command that in all cases
the Bishop or Inquisitors shall take especial care not
to suppress the names of the witnesses as if there were
danger to them when there is perfect security, not
conversely to decide to publish them when there is some
danger threatened, the decision in this matter resting
with their own conscience and discretion. And it has
been written in comment on these words: Whoever you are
who are a Judge in such a case, mark those words well,
for they do not refer to a slight risk but to a grave
danger; therefore do not deprive a prisoner of his legal
rights without very good cause, for this cannot but be
an offence to Almighty God.
The reader
must note that all the process which we have already
described, and all that we have yet to describe, up to
the methods of passing sentence (except the death
sentence), which it is in the province of the
ecclesiastical Judge to conduct, can also, with the
consent of the Diocesans, be conducted by a secular
Judge. Therefore the reader need find no difficulty in
the fact that the above Decree speaks of an
ecclesiastical and not a secular Judge; for the latter
can take his method of inflicting the death sentence
from that of the Ordinary in passing sentence of
penance.
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