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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