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Malleus Maleficarum Part 3
Question XXXV
Finally, of the Method of passing Sentence upon Witches who Enter or Cause to be Entered an Appeal, whether such be Frivolous or Legitimate and Just
But if the Judge perceives that the accused is determined to have
recourse to an appeal, he must first take note that such appeals
are sometimes valid and legitimate, and sometimes entirely
frivolous. Now it has already been explained that cases
concerning the Faith are to be conducted in a simple and summary
fashion, and therefore that no appeal is admitted in such cases.
Nevertheless it sometimes happens that Judges, on account of the
difficulty of the case, gladly prorogue and delay it; therefore
they may consider that it would be just to allow an appeal when
the accused feels that the Judge has really and actually acted
towards him in a manner contrary to the law and justice; as that
he has refused to allow him to defend himself, or that he has
proceeded to a sentence against the accused on his own
responsibility and without the counsel of others, or even without
consent of the Bishop or his Vicar, when he might have taken into
consideration much further evidence both for and against. For
such reasons an appeal may be allowed, but not otherwise.
Secondly, it is to be noted that, when notice of appeal has been
given, the Judge should, without perturbation or disturbance, ask
for a copy of the appeal, giving his promise that the matter
shall not be delayed. And when the accused has given him a copy
of the appeal, the Judge shall notify him that he has yet two
days before he need answer it, and after those two days thirty
more before he need prepare the apostils of the case. And
although he may give his answer at once, and at once proceed to
issue his apostils if he is very expert and experienced, yet it
is better to act with caution, and fix a term of ten or twenty or
twenty-five days, reserving to himself the right to prorogue the
hearing of the appeal up to the legal limit of time.
Thirdly, let the Judge take care that during the legal and
appointed interval he must diligently examine and discuss the
causes of the appeal and the alleged grounds of objection. And if
after having taken good counsel he sees that he has unduly and
unjustly proceeded against the accused, by refusing him
permission to defend himself, or by exposing him to questions at
an unsuitable time, or for any such reason; when the appointed
time comes let him correct his mistake, carrying the process back
to the point and stage where it was when the accused asked to be
defended, or when he put a term to his examination, etc., and so
remove the objection; and then let him proceed as we have said.
For by the removal of the grounds for objection the appeal, which
was legitimate, loses its weight.
But here the circumspect and provident Judge will carefully take
note that some grounds of objection or reparable; and they are
such as we have just spoken of, and are to be dealt with in the
above manner. But others are irreparable: as when the accused has
actually and in fact been questioned, but has afterwards escaped
and lodged an appeal; or that some box or vessel or such
instruments as witches use has been seized and burned; or some
other such irreparable and irrevocable action has been committed.
In such a case the above procedure would not hold good, namely,
taking the process back to the point where the objection
arose.
Fourthly, the Judge must note that, although thirty days may
elapse between his receiving the appeal and his completing the
apostils of the case, and he can assign to the petitioner the
last day, that is, the thirtieth, for the hearing of his appeal;
yet, that it may not seem that the wishes to molest the accused
or some under suspicion of unduly harsh treatment of him, and
that his behaviour may not seem to lend support to the objection
which has caused the appeal, it is better that he should assign
some day within the legal limit, such as the tenth or twentieth
day, and he can afterwards, if he does not wish to be in a hurry,
postpone it until the last legal day, saying that he is busy with
other affairs.
Fifthly, the Judge must take care that, when he affixes a term
for the accused who is appealing and petitioning for apostils, he
must provide not only for the giving, but both for the giving and
receiving of apostils. For if he provided only for the giving of
them, then the Judge against whom the appeal is lodged would have
to discharge the appellant. Therefore let him assign to him a
term, that is, such a day of such a year, for the giving and
receiving from the Judge such apostils as he shall have decided
to submit.
Sixthly, he must take care that, in assigning this term, he shall
not in his answer say that he will give either negative or
affirmative apostils; but that he may have opportunity for fuller
reflection, let him say that he will give such as he shall at the
appointed time have decided upon.
Let him also take care that in assigning this term to the
appellant he give the appellant no opportunity to exercise any
malicious precautions or cunning, and that he specify the place,
day and hour. For example, let him assign the twentieth day of
August, in the present year, at the hour of vespers, and the
chamber of the Judge himself in such a house, in such a city, for
the giving and receiving of apostils such as shall have been
decided upon for such appellant.
Seventhly, let him note that, if he has decided in his mind that
the charge against the accused justly requires that he should be
detained, in assigning the term he must set it down that he
assigns that term for the giving or receiving of apostils by the
appellant in person, and that he assigns to the said appellant
such a place for giving to him and receiving from him apostils;
and then it will be fully in the power of the Judge to detain the
appellant, granted that he has first given negative apostils; but
otherwise it will not be so.
Eighthly, let the Judge take care not to take any further action
in respect of the appellant, such as arresting him, or
questioning him, or liberating him from prison, from the time
when the appeal is presented to him up to the time when he has
returned negative apostils.
To sum up. Note that it often happens that, when the accused is
in doubt as to what sort of sentence he will receive, since he is
conscious of his guilt, he frequently takes refuge in an appeal,
that so he may escape the Judge's sentence. Therefore he appeals
from that Judge, advancing some frivolous reason, as that the
Judge held him in custody without allowing him the customary
surety; or in some such way he may colour his frivolous appeal.
In this case the Judge shall ask for a copy of the appeal; and
having received it he shall either at once or after two days give
his answer and assign to the appellant for the giving and
receiving of such apostils as shall have been decided upon a
certain day, hour, and place, within the legal limit, as, for
instance, the 25th, 26th or 30th day of such a month. And during
the assigned interval the Judge shall diligently examine the copy
of the appeal, and the reasons or objections upon which it is
based, and shall consult with learned lawyers whether he shall
submit negative apostils, that is, negative answers, and thereby
disallow the appeal, or whether he shall allow the appeal and
submit affirmative and fitting apostils to the Judge to whom the
appeal is made.
But if he sees that the reasons for the appeal are frivolous and
worthless, and that the appellant only wishes to escape or to
postpone his sentence, let his apostils be negative and
refutatory. If, however, he sees that the objections are true and
just, and not irreparable; or if he is in doubt whether the
accused is maliciously causing him trouble, and wishes to clear
himself of all suspicion, let him grant the appellant affirmative
and fitting apostils. And when the appointed time for the
appellant has arrived, if the Judge has not prepared his apostils
or answers, or in some other way is not ready, the appellant can
at once demand that his appeal be heard, and may continue to do
so on each successive day up to the thirtieth, which is the last
day legally allowed for the submission of the apostils.
But if he has prepared them and is ready, he can at once give his
apostils to the appellant. If, then, he has decided to give
negative or refutatory apostils, he shall, at the expiration of
the appointed time, submit them in the following manner:
AND the said Judge, answering to the said appeal, if it may be
called an appeal, says that he, the Judge, has proceeded and did
intend to proceed in accordance with the Canonical decrees and
the Imperial statutes and laws, and has not departed from the
path of either law nor intended so to depart, and has in no way
acted or intended to act unjustly towards the appellant, as is
manifest from an examination of the alleged grounds for this
appeal. For he has not acted unjustly towards him by detaining
him and keeping him in custody; for he was accused of such
heresy, and there was such evidence against him that he was
worthily convicted of heresy, or was strongly suspected, and as
such it was and is just that he should be kept in custody:
neither has he acted unjustly by refusing him sureties; for the
crime of heresy is one of the more serious crimes, and the
appellant had been convicted but persisted in denying the charge,
and therefore not even the very best sureties were admissable,
but he is and was to be detained in prison. And so he shall
proceed with the other objections.
Having done this, let him say as follows: Wherefore it is
apparant that the Judge has duly and justly proceeded, and has
not deviated from the path of justice, and has in no way unduly
molested the appellant; but the appellant, advancing pretended
and false objections, has by an undue and unjust appeal attempted
to escape his sentence. Wherefore his appeal is frivolous and
worthless, having no foundation, and erring in matter and form.
And since the laws do not recognize frivolous appeals, nor are
they to be recognized by the Judge, therefore the Judge has
himself said that he does not admit and does not intend to admit
the said appeal, nor does he recognize nor yet propose to
recognize it. And he gives this answer to the said accused who
make this undue appeal in the form of negative apostils, and
commands that they be given to him immediately after the said
appeal. And so he shall give it to the Notary who has presented
the appeal to him.
And when these negative apostils have been given to the
appellant, the Judge shall at once proceed with his duty,
ordering the accused to be seized and detained, or assigning to
him a day to appear before him, as shall seem best to him. For he
does not cease to be the Judge, but shall continue his process
against the appellant until the Judge to whom the appeal was made
shall order him to cease.
But let the Judge take care not to commence any new proceedings
against the appellant, by arresting him or, if he is in custody,
liberating him from prison, from the time of the presentation of
the appeal up to the time of the return of negative apostils to
him. But after that time, as we have said, he can do so if
justice requires it, until he is prevented by the Judge to whom
the appeal has been made. Then, with the process sealed under
cover, and with a sure and safe escort and if necessary a
suitable surety, let him send him to the said Judge.
But if the Judge has decided to return affirmative and fitting
apostils, let him submit them in writing in the following manner
on the arrival of the day appointed for the giving and receiving
of apostils:
AND the said Judge, answering to the said appeal, if it may be
called an appeal, if it may be called an appeal, says that he has
proceeded in the present cause justly and as he ought and not
otherwise, nor has he molested or intended to molest the
appellant, as is apparent from a perusal of the alleged
objections. For he has not molested him by, etc. (Here he shall
answer to each of the objections in the appeal, in the best and
most truthful manner that he can.)
Wherefore it is apparent that the said Judge has in no way dealt
unjustly by the appellant nor given him cause to appeal, but that
the appellant is afraid lest justice should proceed against him
according to his crimes. And therefore the appeal is frivolous
and worthless, having no foundation, and not being admissable by
the laws or the Judge. But in reverence for the Apostolic See, to
which the appeal is made, the said Judge says that he admits the
appeal an intends to recognize it, deferring the whole matter to
out Most Holy Lord the Pope, and leaving it to the Holy Apostolic
See: assigning to the said appellant a certain time, namely, so
many months now following, within which, with the process sealed
under cover given to him by the said Judge, or having given
suitable sureties to present himself at the Court of Rome, or
under a sure and safe escort appointed to him by the said Judge,
he must present himself in the Court of Rome before our Lord the
Pope. And this answer the said Judge gives tot he said appellant
as affirmative apostils, and orders that it be given to him
immediately after the appeal presented to him. And so he shall
hand it to the Notary who has presented the appeal to him.
The prudent Judge must here take note that, as soon as he has
given these fitting apostils to the appellant, he at once ceases
to be the Judge in that cause from which the appeal was made, and
can proceed no further in it, unless it be referred back to him
by our Most Holy Lord the Pope. Therefore let him have no more to
do with that case, except to send the said appellant in the above
manner to out Lord the Pope, assign to him a convenient time, say
one, two or three months, within which he must prepare and make
himself ready to appear and present himself at the Court of Rome,
giving a suitable surety; or, if he cannot do this, let him be
sent under a sure and safe escort. For he must either bind
himself by the best means in his power to present himself within
the assigned time before our Lord the Pope in the Court of Rome,
or his appeal must necessarily fall to the ground.
But if the Judge has another case, and proceeds against the
accused in another case in which he has not lodged any appeal: in
that other case he remains, as before, Judge. And even if, after
the appeal has been admitted, and the affirmative apostils have
been given, the appellant is accused and denounced to the Judge
in respect of other heresies which were not in question in the
case from which he appealed, he does not cease to be the Judge,
and can proceed with the inquiry and the examination of witnesses
as before. And when the first case has been finished in the Court
of Rome, or after reference back to the Judge, he is free to
proceed with the second.
Let Judges also take care that they send the process to the Court
of Rome, sealed and under cover, to the Judges appointed to
execute justice, together with a digest of the merits of the
process. And Inquisitors should not concern themselves to appear
at Rome against the appellants; but should leave them to their
own Judges, who, if the Inquisitors are unwilling to appear
against the appellants, shall provide their own advocates for the
appellant, if they wish to expedite the case.
Let Judges also take note that, if they are personally summoned
by the appellant, and appear, they must beware at all costs
against engaging in litigation, but must leave the whole process
and cause to those Judges, and so manage that they may be able to
return as soon as possible; so that they may not be sorely
troubled with fatigues, misery, labour, and expense in Rome. For
by this means much damage is caused to the Church, and heretics
are greatly encouraged; and thereafter Judges will not receive so
much respect and reverence, not will they be so much feared as
before. Also other heretics, seeing the Judges fatigued and
detained in the Court of Rome, will exalt their horns, and
despise and malign them, and more boldly proclaim their heresies;
and when they are accused, they will appeal in the same way.
Other Judges, also, will have their authority weakened when they
proceed on behalf of the Faith and are zealous in extirpating
heretics, since they will fear lest they may be troubled with
miseries and fatigues arising from similar appeals. All this is
most prejudicial to the Faith of the Holy Church of God;
wherefore may the Spouse of that Church in mercy preserve her
from all such injuries.