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Malleus Maleficarum Part 3

Question XII

Of the Same Matter, Declaring more Particularly how the Question of Personal Enmity is to be Investigated. The Seventh Action

        TAKE notice that only mortal enemies are debarred from giving evidence, as was shown in the Fifth Question. But the Judge may consider that to come to a decision about such enmity by the means we have just explained is rather dubious and unsatisfactory; and the accused or her Procurator may not be willing to accept a decision arrived at on such grounds as to whether the enmity is mortal or not. Therefore the Judge must use other means to decide concerning the alleged enmity, so that he may not punish the innocent, but exact full justice from the guilty. And though these means may savour of cunning and even guile, yet the Judge may employ them for the good of the faith and the State; for even S. Paul says: But being crafty, I caught you by guile. And these means are especially to be employed in the case of a prisoner who has not been publically defamed, and is not suspected because of the evidence of any fact; and the Judge may also employ them against prisoners who have alleged enmity on the part of the deponents, and wish to know all the names of the witnesses.
        The first method is this. The accused or her Advocate is given a copy of the process with the names of the deponents or informers, but not in the order in which they deposed; but in such a way that the name of the witness who comes first in the copy is sixth or seventh in the schedule, and he who comes second is last or last but one. In this way the accused will be deceived as to which witness deposed this or that. And then she will either say that they are all her enemies, or not; and if she says that they all are, she will be more easily detected in a lie when the cause of the enmity is investigated by the Judge; and if she names only certain ones, still the cause of the enmity will be more easily investigated.
        The second method is similar, when the Advocate is given a copy of the process, and separately a list of the names of the deponents; but there are added other matters perpetrated elsewhere by witches, but not set down in writing by the witnesses or deponents. And so the accused will not be able to say definitely that this one or that one is her mortal enemy, because she does not know what they have deposed against her.
        The third method was touched upon in the Fifth Question above. For when the accused is questioned at the end of her second examination, and before she has demanded to be defended or an Advocate has been allotted to her, let her be asked whether she thinks that she has any mortal enemies who, setting aside all fear of God, would falsely accuse her of the crime of heresy and witchcraft. And then perhaps without thinking, and not having seen the depositions of the witnesses, she will answer that she does not think that she has any such enemies. Or if she says, “I think I have,” and names any of the witnesses who have laid information, and the reason for that enmity is known, then the Judge will be able to investigate it with more certainty afterwards, when the accused has been given separate copies of the process and of the names of the witnesses, in the manner we have explained.
        The fourth method is this. At the end of her second examination and confession (as we showed in the Sixth Question), before she is granted any means of defence, let her be questioned as to the witnesses who have laid the more serious charges against her, in this manner. “Do you know So-and-so?• naming one of the witnesses; and then she will answer either Yes or No. If she says No, she will not be able, after she has been given means of defence and an Advocate, to plead that he is a mortal enemy, since she has said on oath that she does not know him. But if she says Yes, let her be asked whether she knows or has heard that he or she has acted in any way contrary to the Christian faith in the manner of a witch. Then if she says Yes, for he did such and such a thing; let her be asked whether he is her friend or enemy; and she will immediately answer that he is her friend, because of the testimony of such is not of very great account; and consequently she will not be able afterwards to plead an oath through her Advocate that he is her enemy, for she has already said that he is her friend. But if she answers that she knows nothing about him, let her again be asked whether he is her friend or enemy, and she will at once answer that he is her friend; for it would be futile to allege enmity on the part of someone of whom she knows nothing. Therefore she says, “I am his friend, but if I knew anything about him I would not fail to reveal it.” Therefore she will not be able afterwards to plead that her is her enemy. Or perhaps she will from the very beginning allege reasons for mortal enmity, and in that case some credence must be placed in the plea of the Advocate.
        A fifth method is to give the Advocate or the accused a copy of the process, with the names of the informers suppressed. And then the accused will guess, and very often rightly, who has deposed such and such against her. And then if she says, “So-and-so is my mortal enemy, and I am willing to prove it by witnesses,” then the Judge must consider whether the person named is the same person named in the schedule, and since she has said that she is willing to prove it by witnesses, he will examine those witnesses and inquire into the causes of the enmity, having secretly called into consultation learned and aged men of known prudence. And if he finds sufficient reasons for mortal enmity, he shall reject that evidence and dismiss the prisoner, unless there are other grave charges against her, sworn to by other witnesses.
        And this fifth method is commonly used; and it is found in practice that witches quickly guess from the copy of the process who has laid information against them. And because in such cases mortal enmity is rarely found unless it arises from the wicked deeds of the witch, therefore the Judge can easily come to a decision by the above means. Also it is to be noted that often the informers desire to confront the witch personally, and to charge her to her face with the bewitchment which has befallen them.
        There is still one more method whereunto the Judge may finally have recourse, when perhaps the other methods, and especially the first four, seem to some to savour too much of cunning and deceit. Accordingly, to satisfy and content the scrupulous, and that no fault may be found with the Judge, let him take care, after he has found by the above methods that there is no mortal enmity between the accused and the deponent, but wishes to remove all grounds for complaint by settling the question finally in consultation with his other assessors, to act as follows. Let him give to the accused or her Advocate a copy of the process, with the names of the deponents or informers suppressed. And since her defence is that she has mortal enemies, and perhaps she has alleged various reasons for the enmity, whether or not the facts are in agreement with her statements, let the Judge call into consultation learned men of every faculty (if such can be had), or at least some honest and reputable persons (for this is the purport of that statute we have so often quoted); and let him cause the whole process to be read through to them from end to end by the Notary or scribe, and let the names of the witnesses be made known to them, but under an oath of secrecy; and he shall first inquire whether or not they are willing to be bound by such an oath, for if not the names must by no means be declared to them.
        Then let him tell how he has inquired in such and such a manner into the alleged enmity, and has not been able to find any testimony of fact. But he shall add that, if they please, one of two courses shall be pursued. Either they shall decide then and there in consultation whether the evidence of any of the witnesses shall be rejected on the grounds of mortal personal enmity; or let them choose three or four or five persons who have most knowledge in that town or village of any friendship or enmity between the accused and the informer, who are not present at the consultation, and let them be informed of the names only of the accused and the witness, but not of the information which has been deposed, and let the whole question be left to their judgement. If they follow the former of these courses, they cannot very well reject any witness, since the Judge has already used his own methods of investigation; but by the second course he protects himself perfectly, and clears himself of all ugly suspicions. And he ought to observe this last method when the accused has been taken in a foreign town or country. These methods will suffice for examining the question of personal enmity.
Next: Question XIII
Of the Points to be Observed by the Judge before the Formal Examination in the Place of Detention and Torture. This is the Eighth Action