Malleus Maleficarum Part 3
What Kind of Defence may be Allowed, and of the Appointment of an Advocate. This is the Fifth Action
IF, therefore, the accused asked to be defended, how can this be admitted when the names of the
witnesses are kept altogether secret? It is to be said that three considerations are to be
observed in admitting any defence. First, that an Advocate shall be allotted to the accused.
Second, that the names of the witnesses shall not be made known to the Advocate, even under an
oath of secrecy, but that he shall be informed of everything contained in the depositions. Third,
the accused shall as far as possible be given the benefit of every doubt, provided that this
involves no scandal to the faith nor is in any way detrimental to justice, as will be shown. And
in like manner the prisoner’s procurator shall have full access to the whole process, only the
names of the witnesses and deponents being suppressed; and the Advocate can act also in the name
As to the first of these points: it should be noted that an Advocate
is not to be appointed at the desire of the accused, as if he may choose which Advocate he will have; but the Judge must take great care to appoint neither a litigious nor an evil-minded man, nor yet one who is easily bribed (as many are), but rather an honourable man to whom no sort of suspicion attaches.
And the Judge ought to note four points, and if the Advocate be found to conform to them, he shall be allowed to plead, but not otherwise. For first of all the Advocate must examine the nature of the case, and then if he finds it a just one he may undertake it, but if he finds it unjust he must refuse it; and he must be very careful not to undertake an unjust or desperate case. But if he has unwittingly accepted the brief, together with a fee, from someone who wishes to do him an injury, but discovers during the process that the case is hopeless, then he must signify to his client (that is, the accused) that he abandons the case, and must return the fee which he has received. This is the opinion of Godfrey of Fontaines, which is wholly in conformity with the Canon de jud. i, rem non novam. But Henry of Segusio holds an opposite view concerning the return of the fee in a case in which the Advocate has worked very hard. Consequently if an Advocate has wittingly undertaken to defend a prisoner whom he knows to be guilty, he shall be liable for the costs and expenses (de admin. tut. i, non tamen est ignotum).
The second point to be observed is that in his pleading he should conduct himself properly in three respects. First, his behaviour must be modest and free from prolixity or pretentious oratory. Secondly, he must abide by the truth, not bringing forward any fallacious arguments or reasoning, or calling false witnesses, or introducing legal quirks and quibbles if he be a skilled lawyer, or bringing counter-accusations; especially in cases of this sort, which must be conducted as simply and summarily as possible. Thirdly, his fee must be regulated by the usual practice of the district.
But to return to our point; the Judge must make the above conditions clear to the Advocate, and finally admonish him not to incur the charge of defending heresy, which would make him liable to excommunication.
And it is not a valid argument for him to say to the Judge that he is not defending the error, but the person. For he must not by any means so conduct his defence as to prevent the case from being conducted in a plain and summary manner, and he would be doing so if he introduced any complications or appeals into it; all which things are disallowed together. For it is granted that he does not defend the error; for in that case he would be more damnably guilty than the witches themselves, and rather a heresiarch than a heretical wizard. Nevertheless, if he unduly defends a person already suspect of heresy, he makes himself as it were a patron of that heresy, and lays himself under not only a light but a strong suspicion, in accordance with the manner of his defence; and ought publicly to abjure that heresy before the Bishop.
We have put this matter at some length, and it is not to be neglected by the Judge, because much danger may arise from an improper conducting of the defence by an Advocate or Procurator. Therefore, when there is any objection to the Advocate, the Judge must dispense with him and proceed in accordance with the facts and the proofs. But when the Advocate for the accused is not open to any objection, but is a zealous man and lover of justice, then the Judge may reveal to him the names of the witnesses, under an oath of secrecy.
Next: Question XI
What Course the Advocate should Adopt when the Names of the Witnesses are not Revealed to him. Ths Sixth Action