Malleus Maleficarum Part 3
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.
What Kind of Defence may be Allowed, and of the Appointment of an Advocate. This is the Fifth Action