Malleus Maleficarum Part 3
Which Follows from the Preceding Question, Whether the Witch is to be Imprisoned, and of the Method of Taking her. This is the Third Action of the Judge
It is asked whether, after she has denied the accusation, the witch ought to be kept in custody in prison, when the three aforesaid conditions, namely, her reputation, the evidence of the fact, and the depositions of witnesses, are in agreement; or whether she should be dismissed with the security of sureties, so that she may again be called and questioned. As to this question there are three opinions.
First, it is the opinion of some that she should be sent to prison, and that by no means ought she to be dismissed under bond; and they hold this opinion on the strength of the reasoning brought forward in the preceding question, namely, that she is to be considered as manifestly guilty when all those three considerations are in agreement.
Others, again, think that before she is imprisoned she may be dismissed with the safeguard of sureties; so that if she makes her escape, she can then be considered as convicted. But after she has been imprisoned because of her negative answers, she is not to be released under any safeguard or condition of bail, that is, when those three considerations noted above are in agreement; because in that case she could not subsequently be sentenced and punished by death; and this, they say, is the general custom.
The third opinion is that no definite rule can be given, but that it must be left to the Judge to act in accordance with the gravity of the matter as shown by the testimony of the witnesses, the reputation of the accused, and the evidence as to the fact, and the extent to which these three agree with each other; and that he should follow the custom of the country. And they who hold this opinion conclude by saying that if reputable and responsible sureties are not to be procured, and the accused is suspected of contemplating flight, she should then be cast into prison. And this third opinion seems to be the most reasonable, as long as the correct procedure if observed; and this consists in three things.
First, that her house should be searched as thoroughly as possible, in all holes and corners and chests, top and bottom; and if she is a noted witch, then without doubt, unless she has previously hidden them, there will be found various instruments of witchcraft, as we have shown above.
Secondly, if she has a maid-servant or companions, that she or they should be shut up by themselves; for though they are not accused, yet it is presumed that none of the accused's secrets are hidden from them.
Thirdly, in taking her, if she be taken in her own house, let her not be given time to go into her room; for they are wont to secure in this way, and bring away with them, some object or power of witchcraft which procures them the faculty of keeping silent under examination.
This gives rise to the question whether the method employed by some to capture a witch is lawful, namely, that she should be lifted from the ground by the officers, and carried out in a basket or on a plank of wood so that she cannot again touch the ground. This can be answered by the opinion of the Canonists and of certain Theologians, that this is lawful in three respects. First, because, as is shown in the introductory question of this Third Part, it is clear from the opinion of many authorities, and especially of such Doctors as no one would dare to dispute, as Duns Scotus, Henry of Segusio and Godfrey of Fontaines, that it is lawful to oppose vanity with vanity. Also we know from experience and the confessions of witches that when they are taken in this manner they more often lose the power of keeping silence under examination: indeed many who have been about to be burned have asked that they might be allowed at least to touch the ground with one foot; and when this has been asked why they made such a request, they have answered that if they had touched the ground they would have liberated themselves, striking many other people dead with lightning.
The second reason is this. It was manifestly shown in the Second Part of this work that a witch loses all her power when she falls into the hands of public justice, that is, with regard to the past; but with regard to the future, unless she receives from the devil fresh powers of keeping silent, she will confess all her crimes. Therefore let us say with S. Paul: Whatsoever we do in word or deed, let all be done in the name of the Lord JESUS Christ. And if the witch be innocent, this form of capture will not harm her.
Thirdly, according to the Doctors it is lawful to counteract witchcraft by vain means; for they all agree as to this, though they are at variance over the question as to when those vain means may also be unlawful. Therefore when Henry of Segusio says that it is lawful to oppose vanity with vanity, this is explained as meaning that he speaks of vain means, not of unlawful means. All the more, then, is it lawful to obstruct witchcraft; and it is this obstruction which is referred to here, and not any unlawful practice.
Let the Judge note also that there are two sorts of imprisonment; one being a punishment inflicted upon criminals, but the other only a matter of custody in the house of detention. And these two sorts are noted in the chapter multorum querela; therefore she ought at least to be placed in custody. But if it is only a slight matter of which she is accused, and she is not of bad reputation, and there is no evidence of her work upon children or animals, then she may be sent back to her house. But because she has certainly associated with witches and knows their secrets, she must give sureties; and if she cannot do so, she must be bound by oaths and penalties not to go out of her house unless she is summoned. But her servants and domestics, of whom we spoke above, must be kept in custody, yet not punished.
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