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Malleus Maleficarum Part 3

Question XXII

Of the Third Kind of Sentence, to be Pronounced on one who is Defamed, and who is to be put to the Question

        THE Third method of bringing a process on behalf of the faith to a conclusive termination is when the person accused of heresy, after a careful consideration of the merits of the process in consultation with learned lawyers, is found to be inconsistent in his statements, or is found that there are sufficient grounds to warrant his exposure to the question and torture: so that if, after he has been thus questioned, he confesses nothing, he may be considered innocent. And this is when the prisoner has not been taken in heresy, nor has he been convicted by his own confession, or by the evidence of the facts, or by the legitimate production of witnesses, and there are no indications that he is under such a suspicion as to warrant his being made to abjure the heresy; but nevertheless he is inconsistent in his answers when interrogated. Or there may be other sufficient reasons for exposing him to torture. And in such a case the following procedure is to be observed.
        And because such a judgement in includes an interlocutory sentence which must be against and not for the prisoner, the Inquisitor must not divide it into two sentences, but include it all in one. And in the first place, if the accused remains firm in his denials and can in no way be induced by honest men to confess the truth, the following manner of sentence, which is in some respects definitive, shall be used.
        We N., by the mercy of God Bishop of such a town, or Judge in the territory subject to the rule of such a Prince, having regard to the merits of the process conducted by us against you N., of such a place in such a Diocese, and after careful examination, find that you are not consistent in your answers, and that there are sufficient indications besides that you ought to be exposed to the question and torture. Therefore, that the truth may be known from your own mouth and that from henceforth you may not offend the ears of your Judges with your equivocations, we declare, pronounce, and give sentence that on this present day at such an hour you are to be subjected to an interrogatory under torture. This sentence was given, etc.
        If the person to be questioned is both found to be equivocal and at the same time there are other indications sufficient to warrant his being tortured, let both these facts be included in the sentence, as they are above. But if only one or the other of these hold good, let that one only be put in the sentence. But let the sentence be soon put into execution, or let them make as if to execute it. Nevertheless let not the Judge be too willing to subject a person to torture, for this should only be resorted to in default of other proofs. Therefore let him seek for other proofs; and if he cannot find them, and thinks it probable that the accused is guilty, but denied the truth out of fear, let him use other approved methods, always with due precautions, and by using the persuasions of the friends of the accused do his utmost to extract the truth from his own lips. And let him not hasten the business; for very often meditation, and the ordeal of imprisonment, and the repeated persuasion of honest men will induce the accused to discover the truth.
        But if, after keeping the accused in suspense, and after due and decent postponements of the time, and many exhortations of the accused, the Bishop and the Judge are well persuaded that, all circumstances considered, the accused is denying the truth, let them torture him slightly, without shedding blood, bearing in mind that torture is often fallacious and ineffective. For some are so soft-hearted and feeble-minded that at the least torture they will confess anything, whether it be true or not. Others are so stubborn that, however much they are tortured, the truth is not to be had from them. There are others who, having been tortured before, are the better able to endure it a second time, since their arms have been accomodated to the stretchings and twistings involved; whereas the effect on others is to make them weaker, so that they can the less easily endure torture. Others are bewitched, and make use of the fact in their torture, so that they will die before the will confess anything; for they become, as it were, insensible to pain. Therefore there is need for much prudence in the matter of torture, and the greatest attention is to be given to the condition of the person who is to be tortured.
        When, then, the sentence has been pronounced, the officers shall without delay prepare to torture the accused. And while they are making their preparations, the Bishop or Judge shall use his own persuasions and those of other honest men zealous for the faith to induce the accused to confess the truth freely, if necessary promising to spare his life, as we have shown above.
        But if the accused cannot thus be terrified into telling the truth, a second or third day may be appointed for the continuation of the torture; but it must not be repeated then and there. For such a repetition is not permissible unless some further indications against the accused should transpire. But there is nothing to prevent a continuation of the torture on another day.
        Let it be said: We N. Bishop and N. Judge (if he is present) aforesaid, assign to you N. such a day for the continuation of the torture, that the truth may be known from your own mouth. And let all be set down in the process. And during the interval appointed to him, let them use their own persuasions and those of other honest men to induce him to confess the truth.
        But if he has refused to confess, the torture can be continued on the day assigned, more or less severely according to the gravity of the offences in question. And the Judges will be able to observe many lawful precautions, both in word and deed, by which they may come at the truth; but these are more easily learned by use and experience and the variety of different cases than by the art of teaching of anyone.
        But if, after having been fittingly questioned and tortured, he will not discover the truth, let him not be further molested, but be freely allowed to depart. If, however, he confesses, and abides by his confession, and uncovers the truth, acknowledging his guilt and asking the pardon of the Church; then according to the Canon ad abolendam he is to be treated as one taken in heresy on his own confession, but penitent, and he must abjure the heresy, and sentence must be pronounced against him as in the case of those who are convicted by their own confession as being taken in heresy. This will be explained in the eighth method of sentencing such, to which the reader may refer.
        If, on the other hand, he confesses the truth, but is not penitent but obstinately persists in his heresy, but is not a relapsed heretic, then according to the Canon, after a decent interval and due warning, he is to be condemned as a heretic and handed over to the secular Court to suffer the extreme penalty, as we show later in the tenth method. But if he is a relapsed heretic, he is to be condemned in the way which is again explained in the tenth method, to which the reader may refer.
        But here it must be particularly noted that in some instances he who is to be questioned confesses nothing against himself before the torture, nor is anything proved on the strength of which he can be required to abjure the heresy or be condemned as a heretic; and in such cases the above procedure should be adopted, as we have said, immediately. But in other cases the accused is taken in heresy, or he is to be considered either lightly or strongly suspected; and he is not to be tortured in respect of such matters; but if, apart from these, he denies some points which are not proved, but of which there is sufficient indication to warrant his being tortured; and if, having been questioned as to these under torture, he confesses to none of them, he is not on that account to be absolved in accordance with the first method; but he must be proceeded against according to that which has been proved against him, and he or she must abjure the heresy as being one under suspicion of or taken in heresy, as the merits of the process may exact or require. And if, after torture, he confesses all or part of that for which he was tortured, then he must abjure both this and the former heresy which was proved against him, and sentence must be pronounced against him in respect of both of these.
Next: Question XXIII
The Fourth Method of Sentencing, in the Case of one Accused upon a Light Suspicion