# An Examen of Witches/The Manner of Procedure of a Judge in a Case of Witchcraft

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The Manner of Procedure of a Judge in a Case of Witchcraft
By Henry Boguet of Dôle, Chief Judge in the District of Saint Oyan de Joux
To Monsieur Daniel Romanet, Advocate to the See of Salins
Article I.
Pap. arrest. lib. 22. tit. 3. art. 1. 2. Cf. Imbert. lib. Instit. Forens. 3. c. 6. Clar. § hæresis nu. 25. Bodin, Demonom. IV. 4.The Judge in this country can by himself conduct the trial of witches when there is definite evidence of the fact: this was decreed by the Court on the 28th September, 1598. This is also the practice to-day in France.
Article II.
Witchcraft is a crime apart, both on account of its enormity, and because it is usually committed at night and always secretly. Therefore the trial ​of this crime must be conducted in an extraordinary manner; and the usual legalities and ordinary procedure cannot be strictly observed.
Article III.
Jacob. de Bel. vis. in sua pract. tit. de Inquisitio. nu. 52. Clar. lib. V. q. 40. nu. 1.The Judge must decide whether the presumptions and conjectures are enough to warrant his committing the accused to prison; for we can give no certain rule as to this. Yet I shall always maintain that a person should always be imprisoned on the accusation of even only a single accomplice. For it has been noted that witches who have confessed have as a rule never laid information against any who were not of their brotherhood, or at least were not deeply suspceted. De confess. malefic. membr. 2. conclus. 1.In fact Binsfeld, Suffragan of Trèves, wrote that of a hundred witches he hardly found one who made a false accusation against another.
Bodin, Demonom. IV. 4.The same applies when the person is accused by common rumour; for this is almost infallible in the matter of witchcraft.
Article IV.
Cf. chaps. 23, 24, & Art. 31.Those whose duty it is to arrest the accused must make careful search lest he have any ointments or powders about him; for they use such drugs in their witchcraft.
They must also take particular notice of the prisoner’s countenance, and especially of what he shall say. For when he is surprised, many words may escape from him which are direct ​evidence against him; as “may he die but he is not one of those people,” that “he is not marked,” that he “wishes to be re-baptised,” etc. And the prudent Judge will base his examination upon this.
Article V.
Remy, Demonol. III. 9.There are some who, when they seize a witch, are accustomed to prevent him from touching the ground, thinking that thus it will be easier to draw the truth from him. But I do not like this manner of acting, holding that it is superstitious. III. 8.Yet Sprenger defends it, but on such grounds that there is no need to reply to him.
Article VI.
III. 15. Cf. chaps. 27, 28.The same author warns the Judge to take care that the witch does not touch him on the bare hands or arms or look at him before he looks at the witch; so that the witch may not by this means corrupt him. But I hold that this also is full of superstition; for neither the hand nor the look of a witch has in itself any virtue to cause such an effect; and further, it is certain that such people have no power to harm the Officers of Justice, Chap. 37.as I have shown elsewhere.
Article VII.
Bodin, Demonom. IV. 1.The Judge should bring the accused up for examination as soon as he is made prisoner. For when a witch is arrested, Satan, momentarily ​at least, forsakes him, and he is so surprised that he is altogether confused; so that it is easier at such time to draw the truth from him than if he is left for some days in his prison without being seen; for in that case his master will not fail to advise him. None knows this better than do the Judges. Cf. chap. 41.For all witches confess that Satan assists them even when they are being questioned. Further, it has been noted that they always bend their eyes upon the ground and mutter I know not what, when the Judge is speaking to them; and this leads us to believe that they are then consulting with the Devil that he may advise them how to answer.
Article VIII.
Sprenger, III. 6 & sequ. Bodin, Demonom. IV. 4.Sprenger and Bodin have given instructions as what questions the Judge should put, and reference may be made to their works. But I add that the Judge must question the accused without interruption and strongly press him, always with gentle words: that if the accused refuses to answer one question, he must pass on to another, and afterwards go back to the former one, and must repeat the same questions again and again. Psal. 95. II Kings 23. Jerem. 32. Levit. 18. Cf. chap. 48.The accused will then, if he be guilty, be very easily trapped into contradicting himself.
Article IX.
The Judge must also ask the accused whether he has any children, whether they are dead, and ​if so of what sickness they died. For it has been noted that witches ordinarily dedicate their children to the Devil, or else kill them in their mother’s womb or as soon as they are born.
Article X.
Cf. Arts. 35, 36, etc.The Judge must take careful note of the accused’s countenance during his examination, and whether he sheds any tears, or looks down at the ground, or mutters to himself, or uses blasphemy and imprecations. For all these are presumptive indications against him, as we shall say later.
Article XI.
Bodin, Demonom. IV. 1.And because the witch is generally ashamed to confess his abominations before many people, and because also he is frightened when he sees his answers being set down in writing; therefore it is best for the Judge to remain alone with the accused, concealing his Clerk and other Assessors.
Article XII.
Cf. chap. 48, & Arts. 18, 19.If the prisoner is accused by his accomplices, they should at once be brought face to face. The reason for this is that there is nothing which so confounds a witch as to see before his eyes one who has been his companion at the Sabbat, even if the accomplice remains constant and loyal to him. Sometimes it has even been found effective to employ a stranger who is not a witch for this confrontation.
Article XIII.
The accused must be repeatedly brought up for examination.
Article XIV.
Some Judges, finding that they can get no confession from the accused, cause him to be stripped and shaved all over. This custom is not impertinent, by reason of the spells for maintaining silence which they conceal about them. Chap. 43.I have treated of this more fully elsewhere.
Article XV.
There are others who make use of the ducking stool. But I doubt whether this practice does not serve rather to tempt God than to prove anything against the witch who is ducked. C. Mennam. C. consuluisti 2. q. 5. C. fin. de purg. canon. Binsfeld, de confess. Malefic. 2. sub 3. dub. princip. Thyr. de Dæmon. I. 19.For Satan may let a guilty one sink to the bottom, or an innocent one float on the water, so that he may cause an innocent man to be put to death wrongfully and so protect the guilty. Also, the ducking stool is condemned by the Canons; as is also the ordeal by red-hot iron, so that the Suffragan of Treves even says that it is sin to practise it.
Article XVI.
It is quite another matter to examine the accused all over his body to see if there is any mark upon him. For this is permitted and lawful, ​since all witches are ordinarily marked. Cf. chap. 44.But it is necessary to have a very expert chirurgeon, for these marks are difficult to find.
Article XVII.
If the Judge can draw no confession from the accused, he must confine him in a very narrow and dark cell; for it has been proved that the hardship of prison very often impels witches to confess, especially when they are young.
Article XVIII.
Bodin, Demonom. IV. 4.It is good also to bring in someone who shall say that he is imprisoned for the same crime, so that every lawful means may be used to induce the witch to confess the truth.
Article XIX.
Cf. chap. 48.For it has sometimes even proved profitable to lodge the witch near him who has accused him, as was done in the case of Thievenne Paget. But I shall never advise the Judge to adopt this course except as a last resource, and when he is very sure of the accomplices; for witches have often been known to corrupt their accusers and to cause them to retract their confessions.
Article XX.
Judges have been known to extract the truth from witches by means of a promise of ​impunity, yet have not failed to put them to death afterwards. Clar. lib. 5. § fin. q. 55. num. 7. 8, etc.This practice is used by many to-day, and it seems to be approved by the common opinion of the Doctors of Civil Law. Psal. 14. Prov. 6. Sap. 1. Eccl. 7. De confess. malef. 3. dub. princip. post prælud.Yet I feel great doubt as to the morality of this; for it is unlawful for us to deceive our neighbour in any way by a lie; neither ought we ever to do evil that good may come of it, as St. Paul says. This practice is also condemned by the Theologians, and fully refuted by Binsfeld where he replies to Bodin.
Article XXI.
But above all the Advocate of the accused must particularly beware against doing as one did whom I know. This man cunningly got the truth from a witch, and then revealed it to the Judge: the Judge then confronted the witch with the Advocate, and the witch confessed. It is beyond doubt that it is unlawful for the Advocate to reveal matters which are prejudicial to his client. Navarre in manua. c. 25. num. 29.This is so incontestably true that the Theologians hold that he who acts in such a way is guilty of mortal sin if his revelation is notably prejudicial to his client. The Advocate may certainly decline to continue the defence; D. Thom. 2. 2. q. 71. art. 3. Navarr. d.c. 25. num. 28.but, according to the opinion of St. Thomas, approved by Navarro, he must not discover anything which might injure his client.
Article XXII.
The Judge must avoid torture as much as possible; for, besides the spells for maintaining ​silence which witches bear about them,Cf. chap. 43. they have other charms which prevent them from feeling any pain. This secret is known also to nearly all other criminals, so that to-day torture has become almost without effect. And with particular reference to witches, III. 13. sub fin.Sprenger writes that it is as difficult to apply torture to a witch as it is to exorcise a demoniac.
Article XXIII.
I have said that witches and other criminals use certain charms against torture; but I do not mean to include with these the passages and verses of Holy Scripture which they for the most part use. Cf. chap. 43.For it is impious to believe that such passages help them to endure the pain of torture, seeing that God cannot be made responsible for their impunity for their witchcraft.
Article XXIV.
Moreover, the Judge must reject as superstitious the practice used by some in the hope of extracting the truth from those who are exposed to torture. In pract. crim. § nunc. videndum num. 52.For they whisper certain words in their ear. Marsilius speaks of this, and, as he says, has practised it.
Article XXV.
L. nemo C. de Episcop. audi. L. provincia um C. de fer. Clar. § fin. q. 64.In this crime it is lawful to expose the accused to torture on a Holy Day, even if the day be Sacred in honour of God.
Article XXVI.
Bins. de confess. malefic. 2. memb. sub conclus. 1.If the Judge is forced to have recourse to torture, he must consider well whether there are grounds enough for doing so, having regard to the indications, conjectures and presumptions against the accused. For no sure rule can be given for this matter because of the variety of deeds and persons involved in this sort of charge. Yet I shall set down some of the commonest of these.
Article XXVII.
Glos. 1. cap. 5. de adulter. Menoch. de presump. lib. 1. q. 89. num. 14. Bins. ad 1. 4. C. de malef. Mascard. de probat. conclus. 349. num. 6. vol. 1. Cair. in practic. in 7. indic. Clar. § fin. q. 21. num. 31. Boer. decisio 90. num. 4. Clar. d. q. 21. num. 30. 33. L. non fatetur de confess. Late per Jacob. de Bell. vis. tit. d. q. num 58.In the first place, a confession made out of Court is a sufficient reason for resorting to torture against one accused of witchcraft. This rule is observed with regard to other crimes also.
We must even go further, according to the opinion of Julius Clarus, in the case of a prisoner who has recanted his confession made out of Court, for otherwise no confession made out of Court would be of any effect.
But this has particular reference to the crime of witchcraft, seeing that it is a crime in a class by itself, which is Very difficult to bring home against the accused.
The same must be said of a case where the accused has confessed before an incompetent Judge.
Yet, if the Confession has been made in error, and the accused offers to rectify the error, the torture should be postponed, and the accused granted a hearing: Ob id quod fateri non videatur, qui errat.
Article XXVIII.
Clar. § fin. q. 21. num. 8. Boss. tit. de Indic. num. 149. Cairer. pract. in 8 Indic. Bins. de confess. malefic. memb. 2. conclus. 3. 4. 5. Clar. d. q. 21. num. 11.Secondly, a witch’s confession is warrant enough for the employment of torture against his accomplice, if such confession is substantiated by some other presumption or indication.
And although the common opinion of the Doctors is that in this case the accomplice is not to be accredited, if he should not abide by his confession under torture; yet this rule is not observed in this country, any more than it is in many other places. And this seems to me to be very reasonable; for what need is there again to extort by torture a confession which has been voluntarily made without it, seeing that a voluntary confession is always of greater weight than one which is forced by torture? Navarr. Consi. 1. de Jud. lib. 2.Quæ etiam dicitur probatio minus legitima.
Article XXIX.
Carr. in pract. in 25. Indic. monoch. lib. 1. de præsump. q. 8 num. 125. Mascar. de probat. conclus. 451. num. 4. Psal. 17. Prov. 13.Thirdly, the familiarity and association of the accused with a witch is enough to warrant the same procedure, if it is substantiated by some other evidence or indication. This rule is founded upon Holy Scripture, which declares that Good brings good, and Evil evil.
Article XXX.
Clar. § fin. q. 21. num. 37. Menoch. d. q. 8. num. 59. 60. Cairer. in pract. in 12. Indic.Fourthly, the afore-mentioned threats, if they are followed by any effect, are enough to justify the resort to torture.
Article XXXI.
Bins. ad 1. si de malefic. C. Cf. chaps. 23, 24, & Art. 4.Fifthly, if the accused be found in possession of certain powders or unguents, it warrants his torture; especially if he can give no satisfactory account of such powders or unguents. For it is notorious that witches ordinarily use such drugs in their witchcraft.
Article XXXII.
Clar. § fin. q. 21. num. 1. Cairer. in pract. in 2. Indic. Menoch. de præsumpt. lib. 1. q. 89. num. 28. Bodin, Demonom. IV. 4. § fin. q. 6. nu. 18.Sixthly, common rumour, combined with other indications, is also sufficient. It does not seem to me necessary in this case to particularise the circumstances requisite for the verification of a common rumour with regard to other crimes; for the crime of witchcraft is one which is called exceptional, and one which is very difficult of proof. Else common rumour would never be of any account; for it is so difficult to prove that even lawyers themselves, when produced as witnesses, have found themselves at a loss to give reasonable evidence, as Clarus has said.
Marsi. in pract. § diligenter num. 19. Gandi. de malef. tit. de queast. num. 39. August ad Ang. in verb. fama publica num. 41. Marsil in d. § Diligenter nu. 74.And therefore we require some indications in support of the common rumour, to supply the want of such circumstances; for otherwise only a common rumour duly verified would be enough to warrant torture, as some have thought.
Article XXXIII.
Seventhly, lying and discrepancies at the examination, supported by other evidence and indications, serve also as grounds enough for torture.
Article XXXIV.
Lancel. de offic. præto. c. de neg. crim. nu. 29. Bins. memb. 2. Glos. 1. 2. sub si. C. de eden. g o. 1. Instrumenta de probat. C.Finally, when there are a mass of indications such as the Doctors call “light indications,” that provides sufficient warrant for proceeding to the torture: Nam quæ non prosunt stngula multa juvant.
Article XXXV.
Bodin, Demonom. IV. 4. Cf. Cap. 41. Marsil. in pract. § expediata num. 53. Menoch. de præsump. I. q. 89. nu. 130. Cairer. in 29. indic.These light indications are:
1. If the accused generally turns his eyes to the ground during his examination.
There are some who would count it the same if the accused has a frightened look, basing their opinion on those who hold that it is possible to draw from the repulsiveness of a man’s face an indication against him sufficient to expose him to the torture.
Article XXXVI.
Cf. chap. 48.2. If the parents of the accused were witches.
For I hold this to be only a light indication; IV. 4.although Bodin considers it as an infallible rule that the son must be a witch if his father or mother was one. But it has often been known that a bad father may have good children, and that conversely a good father may have bad children. Lib. 2.And therefore Homer has said in his “Odyssey” that “Few sons are like their fathers.”
Article XXXVII.
Dan. point 4. Bod. IV. 4. Bins. ad 1. 7. de malefic. C. Cf. chap. 44. Sim. in com. cath. instit. 8. de Blasph. facit Menoch. de præsump. I. q. 19. nu. 71. Sap. 17. Cic. pro Milo.If the accused has a mark upon him.
Article XXXVIII.
4. If the accused is prone uneasily to fall into a mad and trembling rage and blaspheme and use other execrations: Cum sit enim timida nequitia dat testimonium condemnationis, as Aristotle says. And Cicero says on this subject: Magna est vis conscientiæ, ut nec timeant, qui nihil commiserunt, et pœnam semper ante oculos versari putent, qui peccaverunt.
Article XXXIX.
Article XL.
Cf. chap. 39.6. If the accused has no Cross on his rosary; or if the Cross is defective in some particular.
Article XLI.
Marsil. in pract. § diligenter num. 137. Menoch. de præsump. I. q. 19. nu. 129.7. If the accused has at times been reproached with being a witch, and has let the reproach pass unanswered, without seeking redress by law or otherwise.
Article XLII.
Bins. ad l. fin. de malefic. C.8. If he asks to be re-baptised. For since the Devil requires witches to renounce their baptism, and causes them to be baptised in his name, therefore when they fall into the hands of Justice they ask to be re-baptised. We have remarked upon this in another place.
Article XLIII.
Clar. § fin. q. 64. num. 40. 41. Marsil. in l. 1. § Divus Severus num. 6. de quæsit.If the accused confesses under torture, he must be made to repeat his confessions some time later, say twenty-four hours, and in another place than that of torture. But it is very necessary to take care that one of his accomplices does not speak to him in the meanwhile, lest he should corrupt him. Bod. IV. 4.Also it is well not to leave him alone, for fear lest the Devil may likewise come to advise him.
Article XLIV.
Bart. l. unius § reve. de q. Blanc. de Indic. num. 219. Boss. tit. de Tortura num. 34. Clar. § fin. q. 21. num. 36.If he recants, he must be again exposed to the torture. This the Judge may do three times, but no more.
Article XLV.
And then if the accused continues to persist in his denials, he must be released. But there is great doubt whether he may be fully and absolutely released, or only subject to being again called for trial.
Boer. decisio. 163. num. 15. Cf. Clar. d. q. 21. nu. 35 & q. 62. nu. 2. & q. 64. nu. 38.The Common opinion of the Doctors on this question as it affects other crimes is that if all indications against the accused are entirely purged, then he must be fully and absolutely discharged; but if they are not, his discharge must be conditional upon his being liable for recall.
But I shall always hold that one accused of witchcraft must never be unconditionally discharged, whatever torture he may have suffered, if there remains the slightest indication against him. Cf. chap. 52.For, as we have seen, he who has once given himself to the Devil cannot easily withdraw from his clutches: so that, after having been detained by Justice, he will be even busier in evil-doing.
Article XLVI.
In any case, if the indications were very strong and almost beyond doubt, the Judge could proceed to sentence the accused notwithstanding the fact that he had suffered torture; Clar. d. q. 64. nu. 38. Pap. lib. 24. tit. 9.but he should not then sentence him to the usual punishment of witches, but to something extraordinary, such as banishment, etc. This practice is observed in some countries in the case of other crimes.
Article XLVII.
Further, if the accused ratifies outside the place of torture the confession which he has made there, the Judge shall at once discharge him, not so much as a reproach to the witnesses who may have testified against him as because he may recant his confession. For he may prove that his confession is false, and in that case he must be freely and absolutely discharged. Clar. § fin. 9. 64. nu. 44. & q. 66. nu. 1.This is a practice followed in many Provinces, not only in respect of confessions made under torture, but also of those made voluntarily without torture, as we have said elsewhere.
Article XLVIII.
But if the accused cannot prove that his confession was false, then the Judge must proceed to pass sentence upon him, even if he afterwards commutes it.
I am speaking of a confession made under torture or at least in Court, for a confession made out of Court can only be confirmed by torture. Yet Bodin maintains that both sorts of confession are equally sufficient ground for passing to a condemnation for this crime; but such an opinion is too harsh, for we are very apt at times to say things against ourselves out of Court which are not true. L. certum confessus § si quis absente. Clar. De Confess. § fin. q. 55. nu. 1. L. qui sententiam de pœn. C. Clar. § fin. q. 65. nu. 1.Also neither the civil nor the criminal law reckons such a confession as a complete proof.
Article XLIX.
With regard to a confession made in Court but not under torture, it is certain that according to precedent it must be considered as sufficient proof for proceeding to condemnation, such being the common opinion of our Doctors.
Notwithstanding, the Judge must not fail to discharge the prisoner for Art. 47.the reasons already mentioned.
But the confession must be supported by some other indications; for a confession is not by itself enough. L. si quis ultro de quæst. D. L. non tantum de appellatiu.Si quis ultro fateatur, non semper ei fides habenda est, nonnunquam enim aut metu aut aliqua de causa in se confitentur, says the law; and in another place it says, volens mori non auditur.
I have said that the confession must be supported by other indications; but I do not mean that there must be a clear case of the death of some person or animal, or of the prisoner having been to the Sabbat; for, as we have several times shown, witches work only at night and in secret, and a clear proof of such deeds is, Bod. IV. 5.as the Jurisconsult somewhere says, impossible.
The following are examples of the kind of indications which I mean: if the accused is presumed or suspected or generally believed to be a witch; Arts. 27, 28, etc.and it seems to me that the indications we have mentioned before are more than sufficient in such a case.
Article L.
Quid Pap. q. 339. Iacob. de Bell. vis. in practic. tit. de quæst. nu. 97. Clar. § fin. q. 65. nu. 2.Also it is not necessary for the prisoner’s confession to be made spontaneously in Court, or to be repeated or reiterated.
Article LI.
When the accused retracts his first confession this must always be regarded with suspicion; Cf. Art. 7.for it is known that the Devil instructs witches in prison and very often causes them to recant their first confessions. This has been well pointed out by Bodin;IV. 3. and I have had several experiences of it.
Article LII.
Similarly the accused must be condemned when he is lawfully convicted by a sufficient number of witnesses. Bod. IV. 2. Bins. de confess. 2. memb. conclus. 1. Glos. l. fin. de accus. C. DD. in C. quoniam de testibus.And in this crime all sorts of people are admitted as witnesses, even accomplices. There is reason in this, since it is an exceptional crime, in which equally guilty accomplices provide the proof of each other’s guilt. Besides, the crime or witchcraft is for the most part committed at night and always in secret. Therefore who is better fitted than the witches themselves to give evidence concerning the Sabbats and nocturnal assemblies of witches? For it is certain that men of good life never attend the Sabbat, except by accident.
Article LIII.
Bod. IV. 2. Bins. de confess. 2. b. conclus. 1. Cf. cap. 49. L. parentes de testibus. C. DD. in d. l. parentes & in l. quisque ad l. Jul. majest. C.In consequence of this a son is admitted as witness against his father, and the father against the son, in this crime; and similarly other relatives and connexions may testify against each other: yet all such witnesses are disallowed by the law in cases of other crimes, except that of high treason.
Article LIV.
C. in fidei. C. accusatus § vero de heret. in 6. Mal. malef. III. 4.For the same reason infamous and notorious characters may legally give evidence in a case of witchcraft.
Article LV.
Mal. malef. III. 5. Bod. IV. 2.Even personal enemies are admitted, unless there is mortal hatred between them and the accused.
Article LVI.
Cf. chap. 48.In this crime the Judge must not even reject the evidence of children who have not yet reached the age of puberty. For it is known that witches usually take their children to the Sabbat, however young they may be, as well as their neighbours’ children; and they have been known to take them for the very reason that they are too young. But how can they avoid doing so, since they vow and dedicate them to the Devil while they are yet in their mother’s womb? Therefore these children must be heard in evidence, seeing that the crime is hidden and secret, and that there is no one who can better witness to it than those who have been at the Sabbat.
Article LVII.
Bod IV. 2. Innoc. C. qualiter de accus. Glos. l. ob carmen § fin. de testib. D.For the same reasons witnesses to this crime are admissible, even if there is only one witness as to each particular point in the accusation, provided ​that all the witnesses agree as to the general charge of witchcraft. This applies also to other excepted crimes.
Article LVIII.
We have said that accomplices may give evidence against each other which may lead to a conviction. This is true provided that two other conditions are fulfilled. The first of these is, that the accomplice who brings the accusation must die in contrition and penitence: for it is unlikely that, dying so, they will bring a false accusation against another and so damn themselves miserably. Arg. l. fin. ad. l. Jul. repetund. C. incip. audito. & intellecto nu. 33. 39. in l. admovendi nu. 41. sub. fin. de jurejur.This is the argument used by Hyppolitus de Marsilius in his 109th Counsel, where he says: “Those on the point of death are then more than at any other time afraid to lie and offend the Divine Majesty.” In this connexion the famous jurist Barthole also says: A witness who would not otherwise be believed, may be believed when he is near to death.” Binsfeld also has words very pertinent to this matter, namely, that not one witch in a hundred will bring a false accusation against another.De confess. malef. membr. 2. conclus. 1. This I know also from my own experience.
The second condition is that there should be a sufficient number of accomplices as witnesses. For since, because of their crimes, they are not entirely unexceptionable witnesses, it follows that this defect must be supplied by a number greater than the usual, which is only two. IV. 2. l. ubi numerus de testibus.But Bodin, who agrees with this view, does not define the number of witnesses, but seems to leave it to the discretion of the Judge. This is a reasonable ​attitude to take, and is based upon the teaching of the Roman jurist Callistratus. l. 3. § quæ argumenta de testib.Yet I would always stipulate for four witnesses in these cases, that two may count as one, and four as two, in conformity with the statutes of Venice and of those that prevail throughout all the East, which provide that the evidence of two women shall be equivalent to that of one man, and that of four women to that of two men.
Article LIX.
And when there is not this sufficient number of accomplices to give evidence, then the Judge cannot proceed to a condemnatory sentence unless there is also some very strong presumption against the prisoner, such as those which are sufficient to warrant application of torture, which we have already enumerated.
Article LX.
The other proofs which are sufficient to lead to the condemnation of one accused of witchcraft may be seen in Book IV, chaper 2, of Bodin’s “Demonomania,” and in Binsfeld.
Article LXI.
There are times when the only course is to release the accused from prison. Such is the case when he has been detained for a very long time, and there is not enough evidence to justify either ​an acquittal or a sentence of death; for there may be evidence of great weight, yet not such as can lead to a conviction. Meanwhile further inquiries must be made into the question of the guilt of the accused; and in this matter much is left to the discretion of the Judge.
Article LXII.
Bod. IV. 5.Now the usual penalty for witches is that they shall be burned, but there is some doubt as to whether they should be burned alive, or whether they should first be strangled. Both these views are upheld by various Doctors.
Lib. 2. varia. c. 10. nu. 9. Clar. § fin. q. 99. nu. 7.The second seems to be the more reasonable course to take, so that the criminal need not be brought to despair because of the harshness of his punishment. This is approved by Diego Covarruvias and several others, who say that such is the custom throughout all Christendom.
Nevertheless I know that the practice in this country is not so with regard to those who turn themselves into wolves and in that shape kill people; for such are burned alive, and the Court has many times passed this sentence.
Article LXIII.
Yet the usual penalty for witches is not always put into execution. For in the case of a child who has not reached the age of puberty it should, according to Bodin,Bod. IV. 53. perl. auxilium de minorib. only be sentenced to the lash. Binsfeld goes further, and says that sentence of ​Bins. ad l. 5. q. 1. sub. 5. objectio. de malefic. C. confert. auth. si captivi cum glos. de episcop. aud. C.death should never be passed upon a child of less than sixteen years of age.
But I am entirely of the contrary opinion; for I maintain that not only a child witch who has reached the age of puberty, but even one who has not, should be sentenced to death, if it is proved that he has acted out of malice. Yet I would not in such a case employ the usual penalty for witches, but some gentler means, such as hanging, etc. Tiraq. de pœn. can. 40. nu. 17 et seq. 16. c. parvulos 1. q. 4.My reasons for this view are, first the enormity of the crime, which is the most abominable of all crimes that can be imagined. For the atrocity of this crime is the reason why the ordinary provisions of the law are not applicable to it; and therefore in the case of atrocious crimes children are often put to death for their fathers, without any regard being had to their ignorance; and sometimes even brute beasts are put to death, just as if they were rational creatures. Qua de re in l. quisquis ad. l. Jul. majest. C.I need not mention the usual practice with regard to the children of those who are convicted of high treason.
Secondly, we have seen that he who has once been caught in Satan’s net can never, except with the greatest difficulty, escape from it.Cf. chap. 52. And therefore I conclude that it is better to condemn child witches to death than to let them continue to live in contempt of God and to the danger of the public. De confess. malefic. in princip. 5. prælud. ad Rom. 5. Spin. q. de Strigib. c. 2. Remy, Demonol. III. 3.I am quite aware that Binsfeld does not support this view, saying that God always holds out His arms to receive a criminal in mercy. But what we have already said about witches has been proved by experience, and comes about, I believe, through a secret Judgement of God.
ad Syllamia. D.Thirdly, I base my opinion on the law Excipiuntur, which punishes with death a child below the ​age of puberty for not having cried when its master was killed. Bod. IV. 5.In accordance with this law many children of less than twelve years of age have been sentenced to death.
Finally, I have the memorable authority of Holy Scripture; for forty-two children of the city of Bethel were devoured by two bears because they mocked Elisha.II Kings 2. For if God was so angered by the insult to His prophet, how must His wrath be kindled when He is Himself despised and outraged and denied, seeing that He is jealous of His honour! I much misdoubt that He does not visit it upon the Judges whom He appoints to avenge the wrongs done to Him here below.
Article LXIV.
But if the father has compelled his young son to go to the Sabbat and to give himself to the Devil, then I should judge the son worthy of the lash or of banishment. l. sed & si unius & usi. juss. de injur. l. ad ea de reg. jur late Tiraq. de pœn. caus. 34. nu. 1, 2, 3.For when a person is compelled to obey in the commission of an atrocious crime, the penalty may excusably be mitigated.
I am unwilling to say that, in such case, they deserve the usual penalty for witchcraft, because, since they were compelled to go to the Sabbat and to renounce God, there was no free will on their part; and this excuses them from the usual penalty for witchcraft.
But it must not therefore be concluded that they must not suffer some other extraordinary penalty; for we must consider that it is forbidden to renounce God under any coercion whatever.Matth. 10. l. 3. § sed ex S. Also the matter involves evil consequences and, as Callistratus says, mali exempli. And in such ​C. de Siccar. l. si quis aliquid qui abortionis de pœn. D.cases the law punishes the guilty party not only banishment and confiscation of his goods, but even sometimes with death, although there may have been no malice on his part.
Article LXV.
Arg. l. Balista ad S. C. Trebell. & l. si mulier ad S. C. Velleian. Jas. in l. cunctos populos nu. 21. se summ. Trin. & fide. Cathol. C.What I have said in the last Article is applicable only if the child has been to the Sabbat but once or twice at the most. But if he has been there repeatedly, then he is worthy of being punished with death; for such repetition shows a consent and evil intent on the part of the child, even if he is not yet capable of ill-doing.
Article LXVI.
l. Illud ad l. aquil. D. Everard in loco a simile.A daughter must be judged in the same way as a son, as also must a servant who in this case obeys his master’s order. For the same reasons apply in all these cases.
Article LXVII.
Brun. de Indic. part. 1. q. 4. nu 7. Clar. § fin. q. 20. num. 5. 6.It is well to note again that, in the crime of witchcraft, it is lawful at times to proceed to a condemnation on the strength of those indubitable indications and conjectures, neither more or less, which are applicable to other atrocious crimes committed in secret.
Bins. de confess. malefic. 3. dub. princip. post prælud. Conclus. 7.And although there are some who hold that, in such case, the penalty should be an extraordinary one, such as the lash or banishment, yet I should ​not scruple to sentence the accused to death; not the usual death of witches, but some milder form;Clar. § assasinium nu. 6. & § hæres. nu. 29. & iterum § fin. q. 20. nu. 7. for such is the practice in cases of murder and heresy, which are less horrible crimes than witchcraft.
Article LXVIII.
The Judge ought of right to be present with the Clerk at a witch’s execution, that he may know whether he recants anything of what he has before said concerning his accomplices, and whether he accuses any fresh ones, and also whether he dies contrite and penitent. Art. 54.For an accusation or confession made in such circumstances is of great moment, as we have shown elsewhere.
For witches do not lightly accuse their accomplices, since, Chap. 21.as we have already said, the Devil makes them swear a solemn oath to that effect at the Sabbat; and therefore it is well that the Judge should, when questioning them, refer frequently to this oath during the trial; for by this means he will more easily bring them to reason.
Article LXIX.
l. 1. de Cadav. puintor D. Clar. lib. 5. § fin. b. 100. nu. 1.A puisne Judge may not grant to anybody at all the body of a witch who has been executed, that it may be buried in consecrated soil. Neither do I think that the Supreme Court would ever grant this, considering the enormity of the crime. And even in the case of other atrocious crimes it is customary to expose to view the bodies of ​those who have been executed, to serve as an example and warning to others. Yet this seems to be contrary to the law of Moses in Deuteronomy.Deut. 21.
Article LXX.
But if the witch dies in prison before sentence has been pronounced upon him, he should be buried in consecrated soil even if he has confessed, provided always that he died penitent and contrite and gave clear proof of such a state of mind. We have dealt more fully with this point in another placeChap. 50.