Malleus Maleficarum Part 3
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.
Of the Firth Method of Pronouncing Sentence